Failure to issue a statutory notice before arrest under Section 35(3) of BNSS, 2023, vitiates the legality of the arrest made under the Central Goods and Services Tax Act, 2017.

ORAL ORDER

The petitioner is before this Court invoking its writ jurisdiction under Articles 226 and 227 of the Constitution of India and its inherent powers under Section 528 of BNSS, 2023 (i.e., Section 482 of the CrPC, 1973 ). The petitioner seeks a writ in the nature of Certiorari to quash 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, which were initiated by the respondent for offences punishable under Section 69(1) read with Sections 132(1)(a), 132(1)(b), and 132(1)(i) read with 132(5) of the Central Goods and Services Tax Act, 2017 (Annexure A).

1.1. Furthermore, the petitioner seeks the consequential relief of quashing the order of remand dated 31.01.2025 (Annexure B, pp. 67–69) passed by the Special Court in Crime No.03/2025, as well as quashing the application for remand of the arrestee-petitioner dated 31.01.2025 (Annexure A).

1.2. The petitioner, as of the date of this order, has been in judicial custody for over 40 days pursuant to the impugned remand order of the Learned Special Court.

2. The petitioner challenges his arrest on the grounds that there was non-compliance with the statutory requirement for the issuance of a notice under Section 35(3) of BNSS, 2023 (i.e., the Section 41-A notice under CrPC, 1973 ).

3. The factual matrix of the case is as follows: The petitioner, a proprietor of two entities—M/s. JMG Enterprises/Heena Enterprises (bearing GSTIN No. 27AQMPG1606J1ZV) and M/s. Heena International—is alleged by the respondent to have raised fake invoices for purported supplies of goods and services in order to avail inadmissible input tax credit (ITC) without actually supplying the Fast Moving Consumer Goods (FMCG). This scheme purportedly resulted in wrongful ITC to the tune of Rs.5.10 crores through his proprietary firms and further facilitated fictitious transactions with various entities, including M/s. Samruddhi Trading Company, M/s. Navoday Enterprises Ltd., and M/s. Mini Boss Consultancy Pvt. Ltd., among others.

4. In brief, the petitioner is alleged to have colluded with various persons to generate fabricated invoices for the supply of FMCG goods without any actual movement of goods or rendering of services. Furthermore, he is accused of diverting the supply of invoiced goods to other entities in the open market without issuing corresponding invoices in the names of the recipient companies, thereby enabling those companies to claim wrongful ITC. A review of the application for the petitioner’s remand reveals a specific allegation that the petitioner-accused No. 3 attempted to influence individuals into providing false statements to authorities regarding those who orchestrated the fake invoicing scheme, and further, that he destroyed evidence by deleting WhatsApp messages, thus misleading or hampering the investigation.Submissions

5. Learned Senior Counsel Shri MT Nananiah, appearing for the petitioner, primarily submitted that the petitioner’s arrest is vitiated on the ground of non-compliance with Section 35(3) of BNSS, which mandates the issuance of a notice of appearance to any person accused of an offence punishable with imprisonment of up to seven years. Non- compliance with this statutory requirement, he contended, is contrary to settled law as affirmed by the Apex Court in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 and Satender Kumar Antil v. CBI (2022) 10 SCC 51. He further noted that this Court has opined in MakeMyTrip (India) Pvt. Ltd. v. State of Karnataka (2022) that a notice of appearance under Section 41-A of th