UNION OF INDIA VS. SUNIL BIYANI

2026 INSC 8491

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2026

[ARISING OUT OF SLP (CRL.) NO. 12535 OF 2026]

UNION OF INDIA …APPELLANT

VERSUS

SUNIL BIYANI …RESPONDENT

J U D G M E N T

DIPANKAR DATTA, J.

1. Leave granted.

2. Sunil Biyani, the respondent before us, applied for pre-arrest bail1

before the High Court of Judicature at Bombay2. Whilst rejecting the

respondent’s application on 13th February, 2026, the High Court granted

protection to him from arrest for a week from date of intimation of the order

1 ABA No. 3001/2025

2 High Court

under Section 69 of Central Goods and Services Tax Act, 20173. Union of India

is in appeal before us against such protective order, reading as under:

“6. However considering the facts and circumstances, the present Applicant

shall not be arrested for a period of one week, if the order under Section 69

of the Central Goods and Services Tax Act, 2017 is passed, from the date of

intimation of such order to the Applicant.”

3. At the outset, we record that the respondent has not laid a challenge

to the order of the High Court rejecting his prayer for pre-arrest bail before

this Court.

4. While there has been minimal dispute over the facts before us, those

necessary for the adjudication of the issues that arise are noted hereunder:

a. The Directorate General of GST Intelligence (DGGI), Mumbai Zonal

Unit4, was investigating M/s Alphaneon Techsolutions Pvt. Ltd. and its

group entities allegedly for wrongfully availing and passing of Input Tax

Credit (ITC) without actual supply of goods or services, circular invoicing,

and non-payment of GST on import of services. During inspection of the

registered premises, the respondent, Sunil Biyani, was found present and

acknowledged the inspection.

b. During the investigation, the Department issued three summonses

under Section 70 of CGST Act to the respondent. Instead of appearing, the

respondent sought adjournments and thereafter filed an application for

anticipatory bail before the Sessions Court, Mumbai. It was rejected on

14th October, 2025. Respondent subsequently approached the High Court

3 CGST Act

4 Department

seeking pre-arrest bail. Pursuant to the High Court's interim directions, the

respondent appeared before the Department and his statement was

recorded.

c. During the course of hearing before the High Court, the Department

filed an affidavit averring that no order under Section 69 of the CGST Act

had been passed as the investigation was still at a nascent stage and the

material facts were under verification.

d. The High Court rejected the application for anticipatory bail noting that

in the absence of an order under Section 69 of the CGST Act, there could

be no apprehension of arrest and, hence, an application for anticipatory

bail could not be entertained; nonetheless, the High Court granted relief

of the nature noticed above.

5. It is an admitted position on either side, in view of the decision of this

Court in Radhika Agarwal v. Union of India5, that mere issuance of

summons under Section 70 of the CGST Act — as is the situation in the present

case — does not make the person summoned an accused. For convenience,

the relevant passage from this Court’s decision in Radhika Agarwal (supra)

is reproduced thus:

“71. However, we may clarify that a person summoned under Section 70 of

the CGST Act is not per se an accused protected under Article 20(3) of the

Constitution, as has been held in Deepak Mahajan6. This is because the

prohibitive sweep of Article 20(3) of the Constitution does not go back to the

stage of interrogation. Reference in this regard has been placed

on Poolpandi v. CCE7 and Dukhishyam Benupani v. Arun Kumar Bajoria8. It is

obvious that the investigation must be allowed to proceed in accordance with

5 (2025) 6 SCC 545

6 (1994) 3 SCC 440

7 (1992) 3 SCC 259

8 (1998) 1 SCC 52

law and there should not be any attempt to dictate the investigator and at

the same time, there should not be any misuse of power and authority.”

6. Since the respondent had merely been summoned when he

unsuccessfully applied for pre-arrest bail, rejection of such application by the

High Court, though not under challenge, stands affirmed.

7. What falls for our consideration is whether the High Court could have

granted the relief of protection from arrest for a period of one week of

communication of the order passed under Section 69, CGST Act while

dismissing the application.

8. As far back as 1951, a 5-judge Bench of this Court in State of Orissa

v. Madan Gopal Rungta9, albeit in the context of writ jurisdiction, laid down

the law that a petition under Article 226 of the Constitution of India cannot be

used for the sole purpose of issuing interim relief when the high court is of the

considered opinion that the petition itself is not maintainable. It held so on

the established principle that an interim relief can only be in the aid of and

ancillary to the main relief. This principle, reiterated in several other decisions

of this Court, was recently noticed and echoed by this Court in Mangal

Rajendra Kamthe v. Tahsildar, Purandhar10.

9. In the context of criminal matters, while dealing with orders dismissing

petitions seeking quashing of FIR or charge-sheet, this Court specifically

examined whether a high court could grant further relief against arrest for a

specific period or till the completion of trial. Relying on Madan Gopal Rungta

9 1951 SCC 1024

10 2026 SCC OnLine SC 297

(supra), this Court speaking through Hon’ble K.S.P. Radhakrishnan, J. in

Hema Mishra v. State of U.P.11 held in the negative. His Lordship held that

no further interim relief could be granted while declining interference and

dismissing a writ petition. A profitable reference may be made to the relevant

portion of the decision hereunder:

“22. I am also faced with the situation that on dismissal of the writ by the

High Court under Article 226 of the Constitution of India, while examining the

challenge for quashing the FIR or a charge-sheet, whether the High Court

could grant further relief against arrest for a specific period or till the

completion of the trial. This Court in State of Orissa v. Madan Gopal Rungta12,

while dealing with the scope of Article 226 of the Constitution, held as follows:

“6. … Article 226 cannot be used for the purpose of giving interim relief as

the only and final relief on the application as the High Court has purported to

do. The directions have been given here only to circumvent the provisions of

Section 80 of the Civil Procedure Code, and … that is not within the scope of

Article 226. An interim relief can be granted only in aid of and as ancillary to

the main relief which may be available to the party on final determination of

his rights in a suit or proceeding. If the Court was of the opinion that there

was no other convenient or adequate remedy open to the petitioners, it might

have proceeded to investigate the case on its merits and come to a decision

as to whether the petitioners succeeded in establishing that there was an

infringement of any of their legal rights which entitled them to a writ of

mandamus or any other directions of a like nature; and pending such

determination it might have made a suitable interim order for maintaining the

status quo ante. But when the Court declined to decide on the rights of the

parties and expressly held that they should be investigated more properly in

a civil suit, it could not, for the purpose of facilitating the institution of such

suit, issue directions in the nature of temporary injunctions, under Article 226

of the Constitution. … the language of Article 226 does not permit such an

action.”

The language of Article 226 does not permit such an action and once the

Court finds no merits in the challenge, the writ petition will have to be

dismissed and the question of granting further relief after dismissal of the

writ, does not arise. Consequently, once a writ is dismissed, all the interim

reliefs granted would also go.”

10. Concurring with the observations made by Hon’ble Radhakrishnan, J.,

Hon’ble Dr. A.K. Sikri, J., expounded further in these words:

11 (2014) 4 SCC 453

12 1951 SCC 1024

“25. Another aspect which is highlighted in the judgment rendered by

Radhakrishnan, J. is that many times in the writ petition filed under Article

226 of the Constitution of India seeking quashing of the FIR or the charge-

sheet, the petitioners pray for interim relief against arrest. While entertaining

the writ petition the High Court invariably grants such an interim relief. It is

rightly pointed out that once the writ petition claiming main relief for quashing

of FIR or the charge-sheet itself is dismissed, the question of granting further

relief after dismissal of the writ petition, does not arise. It is so explained in

para 22 of the judgment of my learned Brother.

26. I would like to remark that in the absence of any provisions like Section

438 CrPC applicable in the State of Uttar Pradesh, there is a tendency on the

part of the accused persons, against whom FIR is lodged and/or charge-sheet

is filed in the Court, to file a writ petition for quashing of those proceedings

so that they are able to get protection against the arrest in the interregnum

which is the primary motive for filing such petitions. It is for this reason that

invariably after the lodging of the FIR, a writ petition under Article 226 is filed

with the main prayer to quash those proceedings and to claim interim relief

against pre-arrest in the meantime or till the completion of the trial. However,

the considerations which have to weigh with the High Court to decide as to

whether such proceedings are to be quashed or not are entirely different than

that of granting interim protection against the arrest. Since the grounds on

which such an FIR or charge-sheet can be quashed are limited, once the writ

petition challenging the validity of the FIR or charge-sheet is dismissed, the

grant of relief, incidental in nature, against arrest would obviously not arise,

even when a justifiable case for grant of anticipatory bail is made out.”

(emphasis ours)

11. Thus, it is a settled position of law that even in cases where a petition

seeking quashing of FIR or charge-sheet is dismissed, no interim relief can be

granted by the high courts. In a similar vein, we have no hesitation to supplant

the principle in cases of application seeking pre-arrest bail. We hold that while

dismissing a petition seeking pre-arrest bail on the ground that the same is

not maintainable – whatever be the ground therefor – the high court or the

sessions court, as the case may be, cannot extend or grant protection which

is in the nature of interim relief that could be granted during the pendency of

the application.

12. For the forgoing reason, we set aside the protection granted to the

respondent vide paragraph 6 of the impugned order.

13. Before parting, we may address a subsidiary question. It is, whether

the order passed by the Commissioner under Section 69 of the CGST Act is

required to be communicated to the person sought to be arrested?

14. To answer this question, we need to read the conditions prescribed

under Section 69 of the CGST Act. It reads as follows:

“69. Power to arrest.—

(1) Where the Commissioner has reasons to believe that a person has

committed any offence specified in clause (a) or clause (b) or clause (c) or

clause (d) of sub-section (1) of section 132 which is punishable under clause

(i) or (ii) of sub-section (1), or sub-section (2) of the said section, he may,

by order, authorise any officer of central tax to arrest such person.

(2) Where a person is arrested under sub-section (1) for an offence specified

under sub- section (5) of section 132, the officer authorised to arrest the

person shall inform such person of the grounds of arrest and produce him

before a Magistrate within twentyfour hours.

(3) Subject to the provisions of the Code of Criminal Procedure, 1973, —

(a) where a person is arrested under sub-section (1) for any offence specified

under sub-section (4) of section 132, he shall be admitted to bail or in default

of bail, forwarded to the custody of the Magistrate;

(b) in the case of a non-cognizable and bailable offence, the Deputy

Commissioner or the Assistant Commissioner shall, for the purpose of

releasing an arrested person on bail or otherwise, have the same powers and

be subject to the same provisions as an officer-in-charge of a police station.”

(emphasis ours)

15. Sub-section (1) of Section 69 grants the Commissioner the power to

authorise any officer to arrest a person. Such order must, as prescribed, be

preceded by “reasons to believe”. Such reasons in turn, must refer to the

material and evidence underlying such opinion and evince application of mind.

These are, among others, the stipulations laid down in Radhika Agarwal

(supra).

16. According to Mr. Agarwal, learned senior counsel for the respondent,

what necessarily follows is that until and unless an order under Section 69 of

the CGST Act is passed by the Commissioner recording the “reasons to

believe” that an offence under Section 132 of the CGST Act has been

committed, no alarm is activated and there cannot be any apprehension of

arrest by the person summoned. In other words, once the Commissioner

concludes that there are “reasons to believe” that any offence of the nature

stated in Section 69 has been committed warranting an arrest and an order

to that effect is passed, the alarm is activated and the person (alleged to be

the offender, whose arrest is authorised) becomes an accused who is open to

be arrested and, thus, acquiring the right to seek pre-arrest bail.

Consequently, an order under Section 69 of the CGST Act would be a sine qua

non to maintain an application seeking such bail.

17. In such circumstances, the contention of Mr. Agarwal has been that

unless the order passed under Section 69 is communicated to the accused, in

this case the respondent, he cannot apply for an anticipatory bail. It has

further been contended that though not mandated by the statute, by

extension of the principles of natural justice and fairness in administrative

action, the requirement of communication of the order passed under Section

69 of the CGST Act to the accused before he is arrested, has to be read into

the statute and communication of such an order to the person sought to be

arrested must be held to be mandatory. If not, it would lead to a catch-22

situation where the accused can neither apply for anticipatory bail till the order

under Section 69 is passed nor does he become aware of the order to subject

the same to a challenge on available grounds before an appropriate forum.

18. We are inclined to accept the contention of Mr. Agarwal. The order

under Section 69 of the CGST Act, as held, being a sine qua non to seek

anticipatory bail, it would be an anomaly to hold that the order need not be

communicated at all, much less, be communicated after the arrest of such

person. In any case, communication of the order would not, in any manner,

obstruct the investigation ensued by the department. On the contrary, it

reinforces the right of the accused to seek anticipatory bail as stipulated in

Sushila Aggarwal v. State (NCT of Delhi)13.

19. A 5-Judge Bench of this Court in Gurbaksh Singh Sibbia v. State of

Punjab14, which has also been relied upon by the Bench in Radhika Agarwal

(supra), intertwined personal liberty as an important facet of Section 438 of

the Code of Criminal Procedure, 197315 (equivalent to Section 482, Bharatiya

Nagarik Suraksha Sanhita, 202316) and cautioned against an interpretation

which imposes unreasonable restrictions. The instructive passage from

Gurbaksh Singh Sibbia (supra) reads thus:

“26. We find a great deal of substance in Mr Tarkunde's submission that since

denial of bail amounts to deprivation of personal liberty, the court should lean

against the imposition of unnecessary restrictions on the scope of Section

438, especially when no such restrictions have been imposed by the

legislature in the terms of that section. Section 438 is a procedural provision

which is concerned with the personal liberty of the individual, who is entitled

to the benefit of the presumption of innocence since he is not, on the date of

his application for anticipatory bail, convicted of the offence in respect of

which he seeks bail. An over-generous infusion of constraints and conditions

which are not to be found in Section 438 can make its provisions

constitutionally vulnerable since the right to personal freedom cannot be

made to depend on compliance with unreasonable restrictions. The beneficent

provision contained in Section 438 must be saved, not jettisoned. No doubt

13 (2020) 5 SCC 1

14 (1980) 2 SCC 565

15 CrPC

16 BNSS

can linger after the decision in Maneka Gandhi17, that in order to meet the

challenge of Article 21 of the Constitution, the procedure established by law

for depriving a person of his liberty must be fair, just and reasonable. Section

438, in the form in which it is conceived by the legislature, is open to no

exception on the ground that it prescribes a procedure which is unjust or

unfair. We ought, at all costs, to avoid throwing it open to a Constitutional

challenge by reading words in it which are not to be found therein.”

(emphasis ours)

20. This also further fortifies the accused’s right to challenge the order and

the “reasons to believe” recorded by the Commissioner, which prompted the

issuance thereof. Such order, being amenable to judicial review by the

constitutional courts, may be tested on settled principles of law. If Section 69

were read as it is, without there being any requirement of disclosure of the

“reasons to believe”, withholding of reasons could have drastic consequences

on the right to liberty of the accused.

21. We note that Rule 8 of the Central Goods and Service Tax Rules, 201718

mandates that a person seeking registration under the CGST Act must provide

an email address and mobile number. Thus, the order may be communicated

through electronic means in addition to the mode, as permitted under the

BNSS, as well as all other permissible modes of communication. This would

enable an accused to seek remedy that the law provides to him, if so advised.

22. In view of the aforesaid, we require the Commissioner to communicate

the order under Section 69 of the GST Act to the respondent in the manner

indicated in the preceding paragraph, whereafter he may pursue such remedy

17 Maneka Gandhi v. Union of India, (1978) 1 SCC 248

18 CGST Rules

as he may be advised. We reiterate, without such communication, question of

arrest would not arise.

23. The criminal appeal stands disposed of on the aforesaid terms.

24. We record that the observations made herein are confined to the

extent necessary to address the point of law canvassed and do not constitute

a finding on facts or the merits of the matter. The pending investigation shall

proceed uninfluenced by the observations made hereinabove.

25. Connected applications, if any, stand closed.

………………………………….J.

(DIPANKAR DATTA)

………………………………….J.

(SHEEL NAGU)

NEW DELHI;

AUGUST 12, 2026.