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On Friday the Madhya Pradesh High Court dismissed a petition seeking the presence of an Advocate during search and seizure under Section 67 of the GST Act, of the Petitioner's sweet betel nut manufacturing unit.
Petitioner had "failed to point out any statutory provision or any such legal right" in his favour held by the bench of Justice Prakash Shrivastava and Justice Vandana Kasrekar.
In the backdrop, the Petitioner's manufacturing unit had been sealed for alleged tax evasion and a notice had been issued to Petitioner's to remain present during search and seizure of the premises.
The Petitioner comprehends that the procedure may not be carried out in a "fair manner" and the authority may pressurize him into making a compelled confession. Therefore the petitioner sought the presence of an Advocate during the procedure.
Taking note of that the supplication made by the Petitioner was not upheld by any statute/ provision in the law, the bench dismissed the petition. Reliance was set on the previous Supreme Court's precedent 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 procedures and the examination of an individual 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 machinery of law, there cannot be any legitimate objection in depriving them of such company," the Top Court had held.
The Petitioner in the current 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, however, 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 the petitioner is that the search should be carried out in the presence of the Advocate, but counsel for the 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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