Bahadur Islam 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 requirements. The notice under Section 35(3) of BNSS indicated the petitioner's required appearance at 4:15 PM on November 14, 2025. However, the arrest memo clearly showed the petitioner was arrested on the same day at 11:45 AM. This meant the petitioner was arrested before the time he was directed to appear. The Court found no effective compliance with the notice under Section 35(3) BNSS, making the arrest infirm in terms of settled law. The Court acknowledged the Investigating Officer's admission of a typographical error regarding the date of appearance but noted the lack of explanation for the time discrepancy. Consequently, the bail petition was allowed on these technical grounds. The petitioner was granted bail with conditions including not absconding, cooperating with the investigation, not tampering with evidence, and not influencing witnesses. The Court also observed that procedural compliance under Sections 35/47/48 BNSS is essential for arrests by revenue authorities under GST law, failing which arrests may become bad in law. It recommended continuous training for revenue officials in procedural matters under criminal law.

Facts

The petitioner, Bahadur Islam, filed a subsequent bail application before the Gauhati High Court after his earlier one was rejected. He was arrested on November 14, 2025, in connection with a GST fraud case involving alleged issuance of fake invoices and passing of fake Input Tax Credit (ITC) without corresponding supply of goods and services. The alleged fraudulent transactions were stated to be over Rs. 8,00,00,000/- for the period June 2025 to October 2025. The prosecution contended that the offences fell under Section 132 of the CGST Act, making them cognizable and non-bailable, and that the arrest was made with due permission under Section 69 of the Act. The petitioner's primary contention was non-compliance with statutory notices.

Key Issues

1. Whether the arrest of the petitioner was vitiated due to non-compliance with the statutory notice requirements under Section 35(3) of the BNSS (corresponding to Section 41/41A of Cr.P.C.)? The petitioner argued that the notice issued under Section 70 of the CGST Act, which is governed by the Civil Procedure Code, 1908, also mentioned provisions of Section 35(3) BNSS, indicating a procedural mix-up. More critically, a notice dated November 14, 2025, for appearance on November 13, 2025, was contradictory. Furthermore, the arrest memo dated November 14, 2025, indicated arrest at 11:45 AM, while the notice for appearance on the same day was for 4:15 PM. This meant the petitioner was arrested before the stipulated time for appearance, rendering the notice ineffective and the arrest faulty. 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 respondent (Union of India) conceded that the date on the notice requiring appearance on the 13th was a typographical error. However, no explanation was provided regarding the time of arrest being prior to the time of appearance indicated in the notice under Section 35(3) of BNSS.