Arrest and relevant provisions

of CrPC under GST

GROUP- 2
 GROUP INTRODUCTION
S.NO MEMBER DESIGNATIO EMPLOYEE CODE
. N

1. Virat Pratap Singh ACCT 127312

2. Amit Pandey CTO 127411
3. Ankit Tripathi CTO
4. Manoj Kumar CTO 127388
5. Gangesh Kumar Dwivedi CTO 127415
6. Rakesh Singh CTO 127359
7. Shiv Badan Ram CTO 127337
8. Madhav Nath Dubey CTO 127352
9. Shyam Sundar CTO 127386
10. Praveen Kumar Singh CTO 127347
11. Sadashiv Tripathi CTO 127328
12. Dhruv Narain Pandey CTO 127383
13. Tarachand CTO 127330
RELATED ORGANIZATIONAL STRUCTURE IN CTD, UTTAR PRADESH
 What is meant by "Arrest"?

The term “arrest” has not been defined. However, as per judicial
pronouncements it denotes “the taking into custody of a person
under some lawful command or authority”. In other words a
person is said to be arrested when he is taken and restrained of
his liberty by power or colour of lawful warrant. An arrest is a
procedure in a criminal justice system. The criminal justice
process typically begins when an officer places a person under
arrest, which is when a person has been taken into custody and
is no longer free to leave or move about. This can occur when a
the officer simply tells a suspect that he is "under arrest," and
the suspect submits without the officer's use of any physical
force. The use of physical restraint or handcuffs isn't necessary.
He may question the lawfulness of his arrest when it's
happening, including the basis for it.
No arrest happens when an officer
approaches someone in a public place and
asks if the person is willing to answer
questions, as long as the officer does not
restrain the person.
 Necessity of Arrest

Decision to arrest needs to be taken on case-to-case

basis considering various factors, such as, nature & gravity of
offence, quantum of duty evaded or credit wrongfully availed,
nature & quality of evidence, possibility of evidences being
tampered with or witnesses being influenced,
cooperation with the investigation, etc. To summarize, power
to arrest has to be exercised after careful consideration of the
facts of the case which may include:
(i)to ensure proper investigation of the offence;
(ii) to prevent such person from absconding;
 Necessity of Arrest contd..

(iii) cases involving organized evasion of tax by way of concealment;

(iv) master minds or key operators effecting proxy/benami
transactions in the name of dummy or non-existent persons.
(v) where the intent to evade tax is evident and element of mens rea /
guilty mind is palpable and
(vi) prevention of the possibility of tampering with evidence; (vii)
intimidating or influencing witnesses ;
 Important Legal provisions under CrPC
Section 46. Arrest how made.—
(1) In making an arrest the police officer or other person making the
same shall actually touch or confine the body of the person to be
arrested, unless there be a submission to the custody by word or action:
Provided that where a woman is to be arrested, unless the
circumstances indicate to the contrary, her submission to custody on an
oral intimation of arrest shall be presumed and, unless the
circumstances otherwise require or unless the police officer is a female,
the police officer shall not touch the person of the woman for making
her arrest.
(2) If such person forcibly resists the endeavour to arrest him, or
attempts to evade the arrest, such police officer or other person may
use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person
who is not accused of an offence punishable with death or with
imprisonment for life.
(4) Save in exceptional circumstances, no woman shall be arrested
after sunset and before sunrise, and where such exceptional
circumstances exist, the woman police officer shall, by making a written
report, obtain the prior permission of the Judicial Magistrate of the first
class within whose local jurisdiction the offence is committed or the
arrest is to be made.
 Important Legal provisions under CrPC contd..

Section 50: Right to be informed

It is the fundamental right of a person to be informed of the
actions that are to be made against him. A police officer has to
inform the individual and also inform the person if the offence
falls under the bailable or non-bailable category. Usually,
bailable offences are those offences where bail may be granted,
and it is the right of an individual to be granted bail. On the other
hand, non-bailable offences are situations when bails cannot be
issued and to do so is in the sole discretion of the court.

Section 50A – Obligation of person making arrest to inform

about the arrest, etc., to a nominated person.
 Important Legal provisions under CrPC contd..

Section 51 - Search of arrested person.

• where any article is seized from the arrested person, a receipt
showing the articles taken in possession by the police officer shall be
given to such person.
• Whenever it is necessary to cause a female to be searched, the
search shall be made by another female with strict regard to
decency.

Section 75: Right to see an arrest warrant (Memo)

In situations of non-cognizable cases, an arrest is to be made with an
arrest warrant, and the individual who is to be arrested has every right
to see the warrant as stated in Section 75 of the Criminal Procedure
Code. The warrant must check specific requirements such as that the
warrant must be in writing, signed by a presiding officer, sealed by the
court, name and address of the accused and the offence under which
the arrest is being made. A warrant is termed illegal if any of these
requirements fall short.
Other Rights of Arrestee

The following are the other rights that an accused that is

getting arrested can have.
1. The police officer must be clear with his identity. He must
wear a clear and visible identification of his name which
facilitates easy identification.
2. A memo of arrest should be prepared at the time of arrest
and attested by at least one witness (can be a family member
or a member of the locality) when the arrest is done and must
be countersigned by the accused.
3. Under Section 41D and Section 303 of the Criminal
Procedure Code, the accused and arrestee has every right to
meet an advocate of choice during interrogation.
4. Section 50 of the Criminal Procedure Code states that the
arrestee has the right to inform a member of his family,
relative or a friend of the situation.
Other Rights of Arrestee contd..
5. The arrested person has the right not to be detained for
more than 24 hours without being presented before a
Magistrate. This right is fundamental and prevents unlawful
and illegal arrests as supported by Section 57 and Section 76
of the Criminal Procedure Code.
6. According to Section 54 and Section 55A, the arrested
person has the right to be medically examined to establish
the offence that he charged with was not committed by him
or that he was subjected to torture physically.
7. The arrested individual has the right to remain silent under
Section 20(3) of the Indian Constitution to prevent self-
incriminating statements being extracted with or without his
consent.
Other Rights of Arrestee contd..

Special Protection to Females:

The standard rule is that women are not to be arrested

without the presence of a lady constable. It is also stated
that no woman is to be arrested after sunset unless in
certain exemptions. These exemptions include crimes
that are extremely serious and an arrest is essential and
can be executed under special orders. Separate lock up
rooms are to be provided for females in police stations.
Section 53(2) of the Criminal Procedure Code states that
it is a salutary principle that a medical examination of
the arrested female to be conducted by a female medical
practitioner.
Important Legal provisions under GST

SECTION 69 of CGST Act, 2017: 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, authorize any officer of state tax to arrest such person.
(2) Where a person is arrested under sub-section (1) for an
offence specified under subsection (5) of section 132, the
officer authorized to arrest the person shall inform such person
of the grounds of arrest and produce him before a Magistrate
within twenty-four hours.
Important Legal provisions under GST contd..

Section 69(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.
 Meaning of reason to believe

• ‘Belief’-: Rich Udyog Network Ltd Vs CCIT [2016] 386

ITR 136 (All)
• Belief must be held in good faith.
• It cannot be a mere pretense or a doubt.
• Belief should not be based on mere suspicion but must
be based on information which is in the possession
of the authorizing authority.

• The said “information” must be something more than a

mere rumor, gossip or hunch. It must form the basis
on which the authorizing officer can have “reason to
believe” that an action can be taken.
 Judicial Review of “Reason to Believe”
Balwant Singh V/s R.D. Sharma [1969] 71 ITR 550 (Delhi)

The existence of 'reason to believe' is subject only to a limited scrutiny

and the Court cannot substitute its own opinion for that of the officer
carrying out Inspection.
Inspection must not lightly or arbitrarily invade the privacy of a
subject. Before he acts, he must be reasonably satisfied that it is
necessary to do so but the decision must still remain his and not that
of the Court.
If the grounds on which reason to believe is founded are non-existent
or are irrelevant or are such on which no reasonable persons can come
to that belief, the exercise of power would be bad and court can
interfere.
It is also open to the Court to examine whether the reasons for the
belief have a rational connection or a relevant bearing to the formation
of the belief.
DDIT Vs Mahesh Kumar Agarwal [2003] 262 ITR 338 (Cal) – Court
cannot look into aptness or sufficiency of grounds upon which
satisfaction is based. Satisfaction is subjective. If belief is bona fide
 Important Legal provisions under GST contd..

Section 132: Punishment:

(1) Whoever commits, or causes to commit and retain the
benefits arising out of, any of the following offences, namely:—
(a) supplies any goods or services or both without issue of any
invoice, in violation of the provisions of this Act or the rules
made thereunder, with the intention to evade tax;
(b) issues any invoice or bill without supply of goods or services
or both in violation of the provisions of this Act, or the rules
made thereunder leading to wrongful availment or utilization of
ITC or refund of tax;
(c) avails ITC using the invoice or bill referred to in clause (b) or
fraudulently avails ITC;
(d) collects any amount as tax but fails to pay the same to the
Government beyond a period of three months from the date on
which such payment becomes due;
 Important Legal provisions under GST contd..

(4) Notwithstanding anything contained in the Code of

Criminal Procedure, 1973, all offences under this Act, except
the offences referred to in sub-section (5) shall be non-
cognizable and bailable.
(5) The offences specified in clause (a) or clause (b) or clause
(c) or clause (d) of sub-section (1) and punishable under
clause (i) of that sub-section shall be cognizable and non-
bailable.
Clause (i): amt involved>5crore- jail upto 5 years& fine
Clause (ii): amt involved>3crore- jail upto 3 years& fine
sSection 132(2): convicted person again convicted.
Summary
PRECAUTIONS TO BE TAKEN DURING ARREST
GUIDELINES LAID DOWN BY THE HON'BLE SUPREME COURT
IN D.K. BASU CASE

• The officer carrying out the arrest and handling the interrogation of
the arrestee should bear accurate, visible and clear identification and
name tags with their designations.
• That the officer carrying out the arrest shall prepare a memo of
arrest at the time of arrest and such memo shall be attested by at
least one witness, who may be either a member of the family of the
arrestee or a respectable person of the locality from where the arrest
is made. It shall also be counter signed by the arrestee and shall
contain the time and date of arrest.
• A person who has been arrested or detained and is being held in
custody in a police station or interrogation centre or other lock up,
shall be entitled to have one friend or relative or other person known
to him or having interest in his welfare being informed, as soon as
practicable, that he has been arrested and is being detained at the
particular place, unless the attesting witness of the memo of arrest is
himself such a friend or a relative of the arrestee.
PRECAUTIONS TO BE TAKEN DURING ARREST........... Contd.
IV. The time, place of arrest and venue of custody of an arrestee
must be informed to the notified person.
V. The person arrested must be made aware of his right to have
someone informed of his arrest or detention as soon as he is put
under arrest or is detained.
VI. An entry must be made in the diary/register regarding the
arrest, name of the next friend of the person who has been
informed of the arrest.
VII. Injury – major/minor, if any, must be recorded and signed by
officer and arrestee. Copy should be provided to arrestee.
VIII. The arrestee should be subjected to medical examination.
IX. Copies of all the documents including the memo of arrest
should be sent to the Magistrate for his record.
X. The arrestee may be permitted to meet his lawyer.
NOTE 1: A separate arrest memo has to be made and provided to
each individual/arrested person. This should particularly be kept in
mind in the event that there can be several arrests in a single
case.
NOTE 2: A female should be arrested by or in the presence of an
woman officer.
 Case Study- Piyush Jain case

The Directorate General of GST Intelligence (DGGI) on filed a complaint against

Piyush Jain of Anand Puri locality before the court of special chief judicial magistrate
(Economic offences)/Additional chief metropolitan magistrate-III,
Kanpur Nagar, to prosecute the accused.(on 22.02.2022)

The complaint was filed under section 132 (1) (a) read with section 132(I) (i) and
section 132 (5) of the Central Goods and Services Tax Act 2017, section 132(1) (a)
read with section 132(I) (i) and 132(5) of the Uttar Pradesh GST Act, 2017 . The court
in his order observed that a chargesheet/complaint(section 173 of CrPC) had been
filed by the DGGI Ahmedabad zonal unit Sarvodaya Nagar Kanpur Nagar. As there are
sufficient grounds to take cognizance of the matter under section 190 Cr P C/section
134 GST Act, 2017 and other papers, the court therefore orders to register a case
against Piyush Jain.
The accused was present through video conferencing. The court after
rejecting his warrant under section 167 Cr PC served a warrant under section
309 Cr P C. The court while listing the case for hearing on March 8, has
summoned the accused.

According to special prosecutor of CGST, Ambarish Tandon, a 334 pages

complaint/charge sheet was filed by the prosecution. Additional
director general Ahmedabad Vivek Prasad had given sanction to file a
complaint against Piyush Jain regarding a matter related to unaccounted cash
recovery of Rs 196.57 crore.

The department had made as many as 16 witnesses, including the branch

managers of Kanpur and Kannauj banks, who had counted the money. Piyush
Jain’s statements were recorded on January 6,7 and 8 and February 5 at jail.
The copies of the complaint had been given to the accused Piyush Jain.
Piyush Jain was arrested by the department on December 26, 2021, and was
produced before the court on December 27, 2021.
Section 190(1) in The Code Of Criminal Procedure, 1973
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any
Magistrate of the second class specially empowered in this behalf under sub- section
(2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his
own knowledge, that such offence has been committed.

Section 134:Cognizance of offences.— No court shall take cognizance of any

offence
punishable under this Act or the rules made thereunder except with the previous
sanction of the Commissioner, and no court inferior to that of a Magistrate of the First
Class, shall try any such offence.
 Suggestions/ Way Forward-

1)Commissioner has sole authority of assigning proper officer

for arrest for an entire state; this power should be delegated at
Zone level.
2) DGGI like parallel Institutions should be created in the state
also.
3) special prosecutor should be appointed for such cases.
4) sufficient infrastructure such as prosecution cell and human
resource with technical expertise should be created.
5) mechanism of Intelligence sharing with Central Institutions
such as economic intelligence committee e should be created
6) arrest should be the last resort (main aim optimising tax
collection) without affecting sentiment of fair business.
Covenants without the swords, are but words.

-Thomas Hobbes
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