Sameer Malik vs. The Union Of INDIA
Held
The Court held that the arrest of the petitioner was infirm and defective due to non-compliance with the statutory notice under Section 35(3) of BNSS. The notice indicated a required appearance time of 4:15 PM on November 14, 2025, but the petitioner was arrested at 12:10 PM on the same day. This meant the petitioner was arrested before the time he was directed to appear, rendering the notice ineffective. The Court noted that while the Investigating Officer admitted the date on the notice was a typographical error, no explanation was provided for the time discrepancy. Citing the Supreme Court's decisions in Radhika Agarwal and Arnesh Kumar, the Court emphasized the necessity of procedural compliance for arrests under GST law, similar to criminal procedure. Consequently, the Court found no effective compliance with the notice, making the arrest bad in law. The bail petition was allowed on these technical grounds, with the petitioner granted bail subject to certain conditions.
Facts
The petitioner, Sameer Malik, filed a subsequent bail application before the Gauhati High Court after his previous one was rejected. He was arrested on November 14, 2025, in connection with CGST, Guwahati Case No. 93/GST/2025-26, under Section 132(5) read with Section 69 of the CGST Act. The prosecution alleges that the petitioner was involved in obtaining GST registrations for non-existent firms and issuing fake invoices to pass on fake Input Tax Credit (ITC) without actual supply of goods or services, for monetary remuneration. The alleged fraudulent transactions were stated to be over Rs. 8,00,00,000/- for the period June 2025 to October 2025. The petitioner's primary contention was non-compliance with statutory notices under Section 35(3) of BNSS.
Key Issues
1. Whether the arrest of the petitioner was vitiated due to non-compliance with the mandatory procedural requirements under Section 35(3) of BNSS (corresponding to Section 41/41A of Cr.P.C.)? The petitioner argued that the notice for appearance under Section 35(3) BNSS, dated November 14, 2025, mentioned an appearance date of November 13, 2025, which was contradictory and a typographical error. More critically, the notice indicated a required appearance time of 4:15 PM on November 14, 2025, while the arrest memo showed the petitioner was arrested at 12:10 PM on the same day. This meant the petitioner was arrested before the stipulated time for appearance, rendering the notice ineffective and the arrest infirm. The petitioner relied on the principles laid down in Radhika Agarwal Vs. Union of India and Arnesh Kumar v. State of Bihar regarding procedural compliance for arrests. The Revenue (CGST) conceded that the date on the notice was a typographical error but offered no explanation regarding the time of arrest being prior to the indicated appearance time. They produced the case diary.
Sections Cited
Section 132(5), Section 69, Section 35(3), Section 70, Section 41, Section 41A, Section 47, Section 48
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Cause title — parties, addresses and appearances
O R D E R
2025
Heard Ms. S.K. Nargis, learned counsel for the petitioner. Also heard Mr. S.C. Keyal, learned Standing Counsel for the CGST.
This is a subsequent bail application, as an earlier bail petition was rejected on 05.12.2025 passed in Bail Appln. 3839/2025. 3. This application under Section 483 of BNSS, 2023 has been filed by the accused petitioner, namely, Sameer Malik praying for grant of bail in connection
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