ARREST GUIDELINES UNDER GST LAW

[Dr. Sanjiv Agarwal]

Guidelines, precautions and safeguards for arrest

According to section 69(3) of the GST Act, 2017, all arrests made under GST law shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1973, relating to arrest.

The power to arrest a person needs to be exercised with utmost caution. Generally, the competent authority should grant approval for arrest on a non-bailable offence, only where the intent to evade tax is evident and an element of mens rea (criminal intent) is palpable.

On arrest procedure, the provisions of Code of Criminal Procedure, 1973 relating to arrest must be taken care of. It is necessary for officers to be truly conversant with the same. Though there is no prescribed form for arrest memo, an arrest memo should ideally include -

• brief facts of the case;
• details of the person arrested;
• gist of evidences against the person;
• relevant section(s) of the GST law or other laws attracted to the case and to the arrested person;
• the grounds of arrest must be explained to the arrested person and this fact be noted in the arrest memo;
• a nominated person (as per the details provided by arrested person) of the arrested person should be informed immediately and this fact also may be mentioned in the arrest memo;
• the date and time of arrest may be mentioned in the arrest memo and the arrest memo should be given to the person arrested under proper acknowledgment;
• 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 when there are several arrests in a single case.

At the time of arrest and pursuant to arrest, following points should be complied with –

• A female should be arrested by or in the presence of a woman officer;
• Medical examination of an arrested person should be conducted by a medical officer in the service of central or state government and in case the medical officer is not available, by a registered medical practitioner, soon after the arrest is made. If an arrested person is a female then such an examination shall be made only by, or under supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner.
• It shall be the duty of the person having the custody of an arrested person to take reasonable care of the health and safety of the arrested person.

 Supreme Court guidelines on arrest

In view of the increasing incidences of violence and torture in custody, the Supreme Court of India [in SHRI DK. BASU, ASHOK K. JOHRI VERSUS STATE OF WEST BENGAL, STATE OF UP. - 1996 (12) TMI 350 - SUPREME COURT] has laid down 11 specific requirements and procedures that the police and other agencies have to follow for the arrest, detention and interrogation of any person. These are:

(1)  Police arresting and interrogating suspects should wear “accurate, visible and clear” identification and name tags, and details of interrogating police officers should be recorded in a register.

(2)  A memo of arrest must be prepared at the time of arrest. This should:

(a)   have the time and date of arrest.

(b)  be attested by at least one witness who may either be a family member of the person arrested or a respectable person of the locality where the arrest was made.

(c)   be counter-signed by the person arrested.

(3)  The person arrested, detained or being interrogated has a right to have a relative, friend or well-wisher informed as soon as practicable, of the arrest and the place of detention or custody. If the person to be informed has signed the arrest memo as a witness, this is not required.

(4)  Where the friend or relative of the person arrested lives outside the district, the time and place of arrest and venue of custody must be notified by police within 8 to 12 hours after arrest. This should be done by a telegram through the District Legal Aid Authority and the concerned police station.

(5)  The person arrested should be told of the right to have someone informed of the arrest, as soon as the arrest or detention is made.

(6)  An entry must be made in the diary at the place of detention about the arrest, the name of the person informed and the name and particulars of the police officers in whose custody the person arrested is.

(7)  The person being arrested can request a physical examination at the time of arrest. Minor and major injuries if any should be recorded. The “Inspection Memo” should be signed by the person arrested as well as the arresting police officer. A copy of this memo must be given to the person arrested.

(8)  The person arrested must have a medical examination by a qualified doctor every 48 hours during detention. This should be done by a doctor who is on the panel, which must be constituted by the Director of Health Services of every State.

(9)  Copies of all documents including the arrest memo have to be sent to the area Magistrate for his record.

(10)     The person arrested has a right to meet a lawyer during the interrogation, although not for the whole time.

(11)     There should be a police control room in every district and state headquarters where information regarding the arrest and the place of custody of the person arrested must be sent by the arresting officer. This must be done within 12 hours of the arrest.

The control room should prominently display the information on a notice board.

These requirements were issued to the Director General of Police and the Home Secretary of every State. They were obliged to circulate the requirements to every police station under their charge. Every police station in the country had to display these guidelines prominently. The judgment also encouraged that the requirements be broadcast through radio and television and pamphlets in local languages be distributed to spread awareness.

These requirements are in addition to other rights and rules, such as:

• The right to be informed at the time of arrest of the offence for which the person is being arrested.
• The right to be presented before a magistrate within 24 hours of the arrest.
• The right to not be ill-treated or tortured during arrest or in custody.
• Confessions made in police custody cannot be used as evidence against the accused.
• A boy under 15 years of age and women cannot be called to the police station only for questioning.

Possible measures to avoid arrest

Possible Measures to avoid Arrest can be one or more of the following :

• Suo moto compliance
• Independent due diligence
• Promptly attending to notices/summons
• Ensuring timely/full payment of GST – Taxes not to be used for working capital/ funding other requirements
• Where delay is expected, to get in touch with Department.
• Taking aggressive tax positions with utmost care – Risk management
• Strengthen internal processes and controls to avoid unintended failures.