Supreme Court: Section 69 CGST arrest order must be communicated before arrest

A Bench of Justices Dipankar Datta and Sheel Nagu held that a Commissioner’s Section 69 arrest order must reach the person before arrest, and struck down interim protection granted while refusing pre-arrest bail.

The Supreme Court has held that a high court or sessions court cannot grant interim protection from arrest while dismissing a pre-arrest bail application as not maintainable. In Union of India v. Sunil Biyani, decided on 12 August 2026, a Bench of Justices Dipankar Datta and Sheel Nagu set aside a protective direction given by the Bombay High Court even after it had refused anticipatory bail. The Court also ruled that an order authorising arrest under Section 69 of the Central Goods and Services Tax Act, 2017 must be communicated to the person concerned before any arrest. The decision links the accused’s right to seek anticipatory bail to knowledge of the arrest order and its recorded “reasons to believe.” The appeal was disposed of on these terms.

How the dispute reached the Court

The Directorate General of GST Intelligence, Mumbai Zonal Unit, was investigating M/s Alphaneon Techsolutions Pvt. Ltd. and its group entities for wrongful availment and passing of Input Tax Credit without actual supply, circular invoicing, and non-payment of GST on import of services. Sunil Biyani was found present during inspection of the registered premises and acknowledged it.

The Department issued three summonses under Section 70 of the CGST Act. Instead of appearing, the respondent sought adjournments and then applied for anticipatory bail before the Sessions Court, Mumbai. That application was rejected on 14 October 2025. He then approached the Bombay High Court for pre-arrest bail, and appeared before the Department under its interim directions, where his statement was recorded.

Before the High Court, the Department filed an affidavit stating that no order under Section 69 had been passed as the investigation was at a nascent stage. On 13 February 2026, the High Court rejected the anticipatory bail application, holding that without a Section 69 order there could be no apprehension of arrest. Even so, it directed that the respondent not be arrested for one week from intimation of any order passed under Section 69. The Union of India appealed against this protective direction. The respondent did not challenge the rejection of his bail plea.

Interim protection cannot survive a dismissed bail plea

The Court framed the question as whether the High Court could grant protection from arrest for a week while dismissing the bail application. It drew on the principle that interim relief is available only in aid of and ancillary to the main relief.

It referred to the five-judge Bench decision in State of Orissa v. Madan Gopal Rungta (1951), which held in the context of Article 226 that a petition cannot be used solely to grant interim relief when the petition itself is not maintainable. That principle was recently echoed in Mangal Rajendra Kamthe v. Tahsildar, Purandhar.

Turning to criminal matters, the Court relied on Hema Mishra v. State of U.P., where it was held that a high court dismissing a petition to quash an FIR or charge-sheet cannot grant further relief against arrest. Justice K.S.P. Radhakrishnan had held that once a writ is dismissed, interim reliefs granted also fall. Justice A.K. Sikri, concurring, noted that the considerations for quashing differ from those for granting protection against arrest.

Applying this, the Court said the same principle governs pre-arrest bail. While dismissing a pre-arrest bail application as not maintainable, on whatever ground, a high court or sessions court cannot extend or grant protection in the nature of interim relief. On that reasoning, the Court set aside the protection granted in paragraph 6 of the impugned order.

Since the respondent had only been summoned when he applied for pre-arrest bail, the rejection of that application, though not under challenge, was affirmed. Both sides accepted, following Radhika Agarwal v. Union of India, that mere issuance of a summons under Section 70 does not make the person summoned an accused.

The subsidiary question: must a Section 69 order be communicated?

The Court then addressed whether the Commissioner’s order under Section 69 must be communicated to the person to be arrested. Section 69(1) allows the Commissioner to authorise arrest only after recording “reasons to believe” that an offence under Section 132 has been committed, referring to the material and evidence and showing application of mind, as laid down in Radhika Agarwal.

Senior counsel for the respondent, Mr. Agarwal, argued that until a Section 69 order is passed, no apprehension of arrest arises and no pre-arrest bail can be sought. Once passed, the person becomes liable to arrest and acquires the right to seek pre-arrest bail, making the order a sine qua non for such an application. Without communication, he argued, a catch-22 arises: the accused can neither apply for anticipatory bail nor challenge the order.

The Court accepted this contention. It held that since a Section 69 order is a sine qua non to seek anticipatory bail, it would be an anomaly to hold it need not be communicated, or communicated only after arrest. Communication would not obstruct the investigation and reinforces the right to seek anticipatory bail recognised in Sushila Aggarwal v. State (NCT of Delhi).

The Court cited the five-judge Bench in Gurbaksh Singh Sibbia v. State of Punjab, relied on in Radhika Agarwal, which tied personal liberty to the anticipatory bail provision and cautioned against reading unreasonable restrictions into it. Disclosure also fortifies the accused’s right to challenge the order and the recorded “reasons to believe” through judicial review. Withholding reasons, the Court said, could have drastic consequences for liberty.

The Court noted that Rule 8 of the Central Goods and Service Tax Rules, 2017 requires a registered person to provide an email address and mobile number, so the order may be communicated electronically in addition to modes permitted under the Bharatiya Nagarik Suraksha Sanhita, 2023 and other permissible modes.

Order

The Court set aside the protection granted in paragraph 6 of the impugned order. It required the Commissioner to communicate the Section 69 order to the respondent in the manner indicated, after which he may pursue such remedy as advised. Without such communication, the Court reiterated, the question of arrest would not arise. The criminal appeal was disposed of on these terms, with connected applications closed. The Court recorded that its observations were confined to the point of law and did not decide the facts or merits, and that the pending investigation would proceed uninfluenced.