Madhya Pradesh HC Turns Down Request For Presence Of Lawyer During Search & Seizure By GST Officers [Read Order]

The bench of Justice Prakash Shrivastava and Justice Vandana Kasrekar held that the Petitioner had "failed to point out any statutory provision or any such legal right" in his favour.

In the backdrop, the Petitioner's manufacturing unit had been sealed for alleged tax evasion and a notice had been issued to him to remain present during search and seizure of the premises.

The Petitioner apprehended that that the process may not be carried out in a "fair manner" and the authority may pressurize him into making a forced confession. He had therefore sought presence of an Advocate during the process.

Noting that the prayer made by the Petitioner was not backed by any statute/ provision in law, the bench dismissed the petition. Reliance was placed on the Supreme Court's decision Poolpandi & Ors. v. Superintendent, Central Excise & Ors., (1992) 3 SCC 259, whereby it was held that presence of a lawyer cannot be allowed at the time of search proceedings and the examination of a person under the Customs Office.

"The purpose of the enquiry under the Customs Act and the other similar statutes will be completely frustrated if the whims of the persons in possession of useful information for the departments are allowed to prevail. For achieving the object of such an enquiry if the appropriate authorities be of the view that such persons should be dissociated from the atmosphere and the company of persons who provide encouragement to them in adopting a noncooperative attitude to the machineries of law, there cannot be any legitimate objection in depriving them of such company," the Top Court had held.

The Petitioner in the present case had also asserted that as per Section 67 (Power of inspection, search and seizure) of the GST Act, two independent reputed witnesses of the locality are necessary, but the Respondents want to carry out the search by keeping their own "pocket witnesses".

The division bench however discounted this argument after the Respondent-authorities assured that "two independent witnesses will be kept as required by law and procedure prescribed in law will be duly followed in true letter and spirit."

"The search is yet to take place in the present case and the counsel for respondents has duly assured this court that the aforesaid provision will be complied with therefore no direction in this regard at this stage is required.

Another submission of counsel for petitioner is that the search should be carried out in the presence of the Advocate, but counsel for petitioner has failed to point out any statutory provision or any such legal right in favour of the petitioner," the bench observed while dismissing the petition.

Case Details:

Case Title: Subhash Joshi & Anr. v. Director General of GST Intelligence (DGGI) & Ors.

Case No.: WP No. 9184/2020

Quorum: Justice Prakash Shrivastava and Justice Vandana Kasrekar

Appearance: Senior Advocate Sunil Jain with Advocate Kushagra Jain (for Petitioner); Advocate Prasanna Prasad (for Respondent)

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