As life on a planet is supposed to evolve gradually as per theory of evolution by Darwin, similarly all factors and forces related thereto get evolved over a period of time and ‘Law’ bears no distinction.
We all have seen n number of notifications, circulars, office orders and trade notices that had been issued by Central Government and State Governments, though mostly out of knee-jerk reaction primarily. However there is a gradual shift that indirect tax law has assumed after the inception of GST in India. One such area of concern and of discussion in this paper is radical shift in the approach of administration of tax as far as displacement of focus from penal provisions to punitive provisions is concerned. When on one hand it is right of Government to collect taxes, on the other hand it is also a prerogative of Government to prevent any leakage thereof by way of evasion (colourable device) and of discouragement to its attempt or abetment hence. The enforcement wings of GST departments have been working in cyclone mode quite lately and such manner of working of authorities do provide that as professionals, we should be well aquantined with provisions so as to enable us, how to deal a possible arrest case both conceptually and realistically. Though people getting arrested and later on being released on bail is an age old law/practice however in this paper we have tried to cover periphery of law of arrest w.r.t. GST r/w Cr.P.C (sections 41 to 60) i.e. why, when, who and how etc., of such punitive provisions.
What technically is an arrest?
Arrest implies “apprehension of a person by legal authority so as to cause deprivation of liberty especially in response to a criminal charge”.
Why does the need for arresting a person arise?
The answer can be multifold and some suitable scenarios could be for better investigation of case, to prevent the person from absconding, to prevent the possibility of tampering with evidence, to prevent intimidating the witness to case. We are on to a very important question i.e.:
Who can get arrested?
The answer lies in words that where GST Commissioner has reason to believe that a person has indulged in any offence as per first quadruplets of section 132 of GST law i.e.,
1. Supplies any goods/ services without any invoice or issues a false invoice with a intention to evade tax.
2. Issues any invoice or bill without supply of goods/services in violation of the provisions of GST leading to wrongful availment or utilisation of input credit or refund of tax.
3. Avails input credit on the bills or invoices on which there will no supply of Goods and Services as mentioned in Para–2.
4. Collects any GST but does not submit it to the Government within 3 months.
Who is authorised to arrest somebody?
Only Commissioner can authorise an officer to arrest a person in four cases (supra). All the field officers are not automatically empowered to take a decision in the matter of arrest and use the powers since the “arrest” in itself is a very sensitive matter. Here authors are of the concerned view that arrest can be of a natural person only hence if any offence is committed by any corporate or distinct legal entity then the person in charge or control may be implicated under arrest provisions.
Can CGST/SGST officers seek assistance from other departments?
Yes, the GST authorities empowered with the power of arrest may require the assistance and services of other law enforcing and other agencies with respect to completing the task and for this purpose it is provided that all officers of police, railway, custom, land revenue and village officials are required to assist the GST officers in enforcing an arrest proceeding.
How the provisions of arrest are executed?
Well, here several legal terminology would necessitate the just and proper understanding answer to this question. One should be well versed with concepts of;
• Monetary limits to invoke wrath of arrest process
• Cognisable and Non-cognisable offences
• Bailable and non-bailable Offences
• Notice, summon and warrant
• Custody and arrest
We shall deal with above concepts individually hereinafter:
Firstly, only such cases of offense u/s. 132(1) to 132(4) can be implicated for arrest where amount of tax evaded is INR 2 crore or more however where monetary quantum involved for tax evasion is found to exceed or equal INR 5 crore then difference in treatment of arrest law crops in.
Secondly, offences restricted between tax evasion value of ₹ 2 crore to ₹ 5 crore have been treated to be as non-cognisable offences and any offence carrying monetary value greater than equal to ₹ 5 crore shall be treated as cognisable offence. A person can be arrested for non-cognisable offence only after issue of warrant by competent authority/court but for cognisable offences an arrest could be made even without issuance of warrant.
Thirdly, all non-cognisable offences are bailable however cognisable offences are non-bailable. Now what does the term non-bailable offense indicate? Please be informed that non-bailable offences does not mean that bail cannot be granted rather it imply merely that bail is to be granted by court, not as a matter of right but as a subject of higher degree of discretion.
Fourthly, legal fiction has created fine difference between a notice, a summons and a warrant. The fundamental variance among them lies in the purpose of their usage. While a notice is issued to seek certain information or document from addressee but a summon is issued to enforce personal appearance of the addressee. Still, the warrant is issued for taking somebody under arrest apprehension. The question of handcuffing the person by authorities is also subject to warrant issued by court in this regard specifically.
Lastly, to take someone under custody is different from arrest in so much that in every arrest there is custody but not vice versa.
Are there any rights provided to arrestee?
In law, there is principle of “presumption of innocence till he has proven guilty” it requires a person arrested to be treated with humanity, dignity and respectfully till his guilt is proved in terms of Article 21.
PATH BREAKING CITATION
D. K. BASU V. STATE OF W.B (1997) 1 SCC 416
Due to frequent instances of police atrocities and custodial deaths. The Hon’ble Supreme Court of India issued some guidelines which were required to be mandatorily followed in all cases of arrest or detention. Some of the principal guidelines are as under :
• Right to be informed of the grounds of arrest under sec. 50 of CRPC and Article 22 of Indian Constitution, it’s a fundamental right to be informed.
• A right to see the warrant under Sec. 75 of CRPC. Warrant of arrest should fulfil certain requirements such as it should be in writing, signed by the presiding officer, should have seal of court, Name and address of the accused and offence under which arrest is made. If any of these is missing, warrant is illegal and challengeable.
• Right of arrested person to meet an advocate of his choice during interrogation
• Arrested person has a right to inform a family member, relative or friend his arrest u/s. 50 of CRPC.
• Arrested person has right not to be detained for more than 24 hrs., without being presented before magistrate, it is to prevent unlawful and illegal arrests. This right is fundamental right under Article 22 of Indian Constitution and supported under section 57 and 76 of CRPC.
• Arrested person have right to be medically examined (Secs. 54, 55A)
• Arrested person has right to remain silent under Section 20(3) of Indian constitution so that police can’t extract self-incriminating statement from a
person without will or without his consent.
To conclude, the main idea for discouragement of evasion of tax remains :
[Source: Article printed in Souvenir of 21st National Convention 2018 held from 22nd to 23rd December, 2018 at Guwahati]