The High Court of Madhya Pradesh, in the light of the decision of the Supreme Court, held that the presence of a lawyer cannot be allowed at the time of search proceedings and the examination of a person under the Customs Office.
The petitioner, Subhash Joshi is the manufacturer of sweet betel nut and which has all the necessary licenses and permissions for this purpose and is regularly paying the GST.
The case of the petitioner is that the Plot belongs to Shri Kishore Wadhwani and the petitioner has taken this plot on lease and the petitioner is running the manufacturing unit on this plot.
Apart from the above, it has no connection with Shri Kishore Wadhwani. By the impugned notice, the factory premises of the petitioner has been sealed. The petitioner apprehends that since the action was initiated against Shri Kishore Wadhwani for evasion of tax, therefore, the premises of the petitioner has been sealed. According to the petitioner, on 20 June 2020, he was out of the station.
The petitioner contended that though the action relating to search and seizure under Section 67 of the GST Act has been taken, the requisite procedure has not been followed.
The petitioner apprehends that the search and seizure may not be carried out in a fair manner and the confession of the petitioner may be recorded under pressure, therefore, a direction be issued for carrying out the search in the presence of an Advocate. He has further submitted that as per the requirement of Section 67, 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 of Justice Prakash Shrivastava and Justice Vandana Kasrekar held that no legal right has been pointed out by the petitioner to carry out the search and seizure operation in the presence of the Advocate, so it cannot be accepted.
The bench in light of the decision of the Supreme Court also held that the presence of a lawyer cannot be allowed at the time of examination of a person under the Customs Office.