Search proceedings does not require an advocate to be a witness of the proceedings.

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

Court: High Court of Madhya Pradesh

Petition No.: Writ Petition No. 9184 of 2020

Date of Judgement: July 3, 2020

Category of Dispute: Search and Seizure under CGST

Relevant Section: Section 67 of the CGST Act, 2017

Facts of the Case

1. The petitioner, Subhash Joshi, is a manufacturer of sweet betel nut, operating from leased premises belonging to Shri Kishore Wadhwani at Plot No. 15-A/B-1, Sector-B, Industrial Area, Sanwer Road, Indore. He holds all necessary licenses and pays GST regularly. [¶2]
2. On June 20, 2020, officers from DGGI sealed the petitioner’s factory premises allegedly in connection with proceedings initiated against Shri Kishore Wadhwani, with whom the petitioner claims to have no business link apart from the lease. [¶2]
3. Petitioner was not present during the sealing and claimed a breach of procedure under Section 67 of the CGST Act. He feared coercion or an unfair process if a search were conducted without the presence of his advocate. [¶3]

Questions in Consideration

1. Whether the sealing of the premises without completing the search violates Section 67 of the CGST Act. [¶3]
2. Whether the petitioner is entitled to have his advocate present during the search and seizure process. [¶3]
3. Whether the requirement of two independent witnesses during search, as per Section 67 and CrPC, is mandatory. [¶3, 6, 7]

Observations of the Court

1. The court noted that the department sealed the premises instead of breaking open the lock to ensure the search could later occur in the presence of the petitioner. This was held as a reasonable and legal course of action. [¶4, 5]
2. Section 67(4) of the CGST Act permits sealing of premises if access is denied, and the applicable search and seizure provisions under CrPC require two independent witnesses. The respondent assured compliance. [¶5–7]
3. As the search had not yet occurred, and the department confirmed adherence to procedural safeguards including independent witnesses, no interference was required. [¶8]
4. On the plea to allow the presence of an advocate during the search, the court cited Supreme Court’s ruling in Poolpandi v. Superintendent, Central Excise (1992), and Delhi High Court’s view in Sudhir Kumar Aggarwal v. DGGI, holding there is no statutory right to have an advocate present during questioning or search. [¶10–12]
5. The court also rejected reliance on Akhil Krishan Maggu v. DGGI (P&H HC), noting that case pertained to arrest, not search and seizure. [¶13]

Judgement of the Court

The High Court dismissed the writ petition, ruling that:

• The search had not yet occurred and respondents assured compliance with Section 67 and CrPC.
• The request for advocate presence during search has no legal basis.
• No procedural violation had yet occurred to warrant court interference. [¶14]

Between Fine Lines

• A taxpayer cannot insist on advocate presence during GST search and seizure proceedings.
• Authorities are permitted to seal premises pending search if entry is not possible.
• The procedural safeguard of two independent witnesses must be ensured under CrPC and CGST Act.
• Courts will not interfere preemptively if search is yet to occur and procedural compliance is assured.
• Misplaced reliance on arrest-related rulings cannot extend to mere search actions.

Summary of Referred Cases