GUIDELINES, PRECAUTIONS AND SAFEGUARDS FOR ARREST UNDER GST

[Dr. Sanjiv Agarwal]

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 (now Bharatiya Nagarik Suraksha Sanhita, 2023) 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.

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