Case Note & Summary
The petitioner, Viral Narendra Gosalia, a proprietor, was arrested by the Senior Intelligence Officer, Directorate General of Goods and Services Tax Intelligence, Bangalore Zonal Unit, in connection with Crime No.03/2025 for offences punishable under Section 69(1) read with Sections 132(1)(a), 132(1)(b), 132(1)(i) and 132(5) of the Central Goods and Services Tax Act, 2017. The arrest was made without issuing a prior notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which is analogous to Section 41-A of the Code of Criminal Procedure, 1973. The petitioner was produced before the Special Court for Economic Offences, Bengaluru, which passed a remand order on 31.01.2025, and the petitioner had been in judicial custody for over 40 days as of the date of the order. The petitioner filed a writ petition under Articles 226 and 227 of the Constitution of India read with Section 528 of BNSS (inherent powers) seeking to quash the proceedings and the remand order. The main legal issue was whether the arrest and remand were illegal due to non-compliance with the mandatory requirement of issuing a notice under Section 35(3) BNSS before arrest. The petitioner argued that the failure to issue such notice rendered the arrest illegal. The respondent contended that the arrest was valid. The court analyzed the statutory requirement and held that Section 35(3) BNSS is mandatory and must be strictly complied with. Since no notice was issued before arrest, the arrest and subsequent remand were illegal. The court allowed the petition, quashed the proceedings in Crime No.03/2025 and the remand order dated 31.01.2025, and directed the petitioner's release forthwith.
Headnote
A) Criminal Procedure - Arrest - Notice Before Arrest - Section 35(3) BNSS, 2023 (Section 41-A CrPC, 1973) - Mandatory Requirement - The court held that the failure to issue a notice under Section 35(3) BNSS before arresting the petitioner renders the arrest and subsequent remand order illegal. The provision is mandatory and must be strictly complied with. (Paras 2-4) B) Goods and Services Tax - Arrest and Remand - Section 69(1) read with Sections 132(1)(a), 132(1)(b), 132(1)(i) and 132(5) of the Central Goods and Services Tax Act, 2017 - Illegal Arrest - The court quashed the proceedings in Crime No.03/2025 and the remand order dated 31.01.2025, holding that the arrest was made without prior notice under Section 35(3) BNSS, and thus the entire proceedings are vitiated. (Paras 1-4) C) Constitutional Law - Writ Jurisdiction - Articles 226 and 227 of the Constitution of India - Certiorari - The court exercised its writ jurisdiction to quash the criminal proceedings and remand order, as the arrest was illegal and without jurisdiction. (Paras 1, 4)
Issue of Consideration
Whether the arrest of the petitioner and the subsequent remand order are illegal due to non-compliance with the mandatory requirement of issuing a notice under Section 35(3) of the BNSS, 2023 (analogous to Section 41-A of the CrPC, 1973) before arrest.
Final Decision
The court allowed the writ petition, quashed the proceedings in Crime No.03/2025 (F.No. DGGI/INT/INTL/1506/2024-Gr C-01-O/o Pr ADG-DGGI-ZU) on the file of the Special Court for Economic Offences, Nrupathunga Road, Bengaluru, and quashed the remand order dated 31.01.2025. The court directed the petitioner's release forthwith.
Law Points
- Arrest without prior notice under Section 35(3) BNSS is illegal
- Section 35(3) BNSS is mandatory
- Non-compliance vitiates arrest and remand
- Writ of certiorari lies to quash illegal proceedings
- Inherent powers under Section 528 BNSS can be invoked
