Arrest Memo Cannot Substitute Commissioner's Order Under Section 69 CGST Act: Punjab & Haryana High Court

1. Background and Context

The Punjab and Haryana High Court recently adjudicated a criminal writ petition filed under Articles 226 and 227 of the Constitution of India by Mohit Bansal, a GST-registered businessperson who had been arrested during the course of a GST investigation. The Court allowed the petition and directed his immediate release, unless his custody was otherwise warranted in accordance with law. The decision turned on two principal failings: the Department's breach of a specific court-recorded undertaking to provide seven working days' prior notice before arrest, and the failure to communicate the Commissioner's order passed under Section 69(1) of the Central Goods and Services Tax Act, 2017 (CGST Act) prior to effecting the arrest. At the same time, the Court declined to accept the petitioner's contention that he had been arrested as early as 6:15 A.M. and that his production before the Magistrate had violated the twenty-four-hour constitutional mandate.

The judgment engages comprehensively with the legal distinction between arrest and custody, the prerequisites for a lawful arrest under Section 69 of the CGST Act, the enforceability of undertakings given before a court during anticipatory bail proceedings, and the standards laid down by the Supreme Court in Union of India Vs Sunil Biyani, 2026 INSC 849 for communicating reasons to believe before effecting an arrest in fiscal offence cases.

2. Factual Matrix

Mohit Bansal, registered under the GST Act and engaged in lawful trade, had earlier apprehended the possibility of arrest and approached the Sessions Court by filing anticipatory bail application No. 538/2026. During proceedings on 18 March 2026, the departmental counsel made a categorical statement before the court that no FIR or complaint had been registered at that stage, that arrest was not considered necessary, and that, if arrest ever became necessary, seven working days' prior notice would be given to the petitioner. Relying on this assurance, the petitioner withdrew his anticipatory bail application.

Events took a different turn on 20 August 2026. Officers of the Department arrived at the petitioner's residence at 5:54 A.M. and commenced a search. The petitioner joined the raiding party at approximately 6:15 A.M., after which his statement was recorded under Section 70 of the CGST Act. His arrest was formally recorded in an arrest memo at 11:30 P.M. that night, and he was produced before the Magistrate at approximately 11:00 A.M. on 21 August 2026. Three remand orders were subsequently passed — on 21 August 2026, 3 September 2026, and 15 September 2026 — none of which was independently challenged before the Court.

3. Three Core Questions Framed by the Court

The High Court structured its analysis around three discrete questions:

• Whether the petitioner was produced before the Magistrate beyond the twenty-four-hour window prescribed under Article 22(2) of the Constitution of India and Section 57 of the Code of Criminal Procedure (corresponding to Section 58 of the Bharatiya Nagarik Suraksha Sanhita, 2023)
• Whether the respondents violated the undertaking given before the Sessions Court on 18 March 2026 that seven working days' prior notice would precede any arrest
• Whether the conditions precedent for arrest under Section 69 of the CGST Act had been fulfilled before the petitioner was taken into custody

4. Question One: Was the Twenty-Four-Hour Constitutional Mandate Violated?

(i) Petitioner's Argument on Actual Restraint

The petitioner's case was that his effective deprivation of personal liberty commenced at 6:15 A.M. when he joined the raiding party during the search, not at 11:30 P.M. when the arrest memo was formally drawn up. He argued that the time entered in an arrest memo is merely a post-facto record and cannot retrospectively determine when constitutional protections begin to run. On this basis, he contended that the twenty-four-hour period expired at 6:15 A.M. on 21 August 2026, and since he was produced before the Magistrate only at approximately 11:00 A.M. on that date, his continued detention constituted a violation of Article 21 and Article 22(2) of the Constitution.

The petitioner relied on a line of precedent supporting this position. The Full Bench of the Madras High Court in Roshan Beevi and Others Vs Joint Secretary to Government of Tamil Nadu and Others, 1983 SCC OnLine Mad 163, had elucidated that arrest does not require physical touching or confinement if the person submits, by word or action, to the authority of the arresting officer. The Supreme Court in Directorate of Enforcement Vs Deepak Mahajan and Another, (1994) 3 SCC 440 explained:

"[T]he word 'arrest' when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one's personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases. When used in the legal sense in the procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. The essential elements to constitute an arrest in the above sense are that there must be an intent to arrest under the authority, accompanied by a seizure or detention of the person in the manner known to law, which is so understood by the person arrested."

The coordinate bench of the same Court in Anuj Kumar Singh Vs Union of India, 2026 SCC OnLine P&H 5458 had held:

"Whether an individual is under 'arrest' is a question of fact, not of nomenclature. To hold otherwise would be to allow the Rule of Law to be defeated by a semantic sleight of hand. The record is merely a post facto declaration; it is the de facto restraint that triggers the clock of liberty."

And further:

"For the twenty-four-hour mandate, as provided under Section 57 CrPC/58 BNSS/Article 22(2) of the Constitution, it must be reckoned from the exact moment of physical deprivation of personal liberty, for any delay beyond this window, however, seemingly minute, constitutes a constitutional trespass that the law cannot and must not condone."

The Supreme Court in Directorate of Enforcement Vs Subhash Sharma, 2025 SCC OnLine SC 240, had similarly held that where a person was detained at an airport through an LOC at the instance of the Enforcement Directorate and physical custody was subsequently assumed, the twenty-four-hour period ran from the earlier point of actual detention, not from the time of the formal arrest memo: