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TMI BlogARRESTX X X X Extracts X X X X X X X X Extracts X X X X ..... s less than Rs. 5 Crore, the offences are classified as non-cognizable and bailable and all such arrested persons shall be released on Bail by Deputy/Assistant Commissioner. But in case of arrests for specified offences where the tax amount involved is more than Rs. 5 Crore, the offence is classified as cognizable and non-bailable and in such cases the bail can be considered by a Judicial Magistrate only. 10.2. Section 132 of CGST Act, 2017 provides that the offences relating to taxable goods and /or services where the amount of tax evaded or the amount of input tax credit wrongly availed or the amount of refund wrongly taken exceeds Rs. 5 Crore, shall be cognizable and non- bailable. Other offences under the act are non-cognizable and bailable. 10.3. Offences listed under clauses (a), (b), (c) or (d) of Section 132(1) of the CGST Act, 2017 and punishable under sub-clause (i) or (ii) of Section 132(1) and offences punishable under Section 132(2) of the CGST Act, 2017, in respect of which powers for arrest are provided under Section 69(1) of the CGST Act, 2017, require Commissioner's warrant, commonly understood as 'arrest warrant', to be executed by any Authorized Officer. 10.4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act or rules made thereunder; (i) Receives or in any way, deals with any supply of services which he knows or has reason to believe are in contravention of any provisions of this law; (j) Tampers with or destroys any material evidence or documents; (k) Fails to supply any information which he is required to supply under this law or supply false information; (l) Attempts or abets the commission of any of the offences mentioned above. 10.9. Section 132 of the CGST Act, 2017 enables institution of prosecution proceedings both against the offenders and also against those persons who are instrumental in committing such offence. Such persons who are aiding the commission of the offence are punishable only if they retain the benefits arising from the offence. 10.10. If any person commits any offence specified in points (f), (g) or (j) in para 10.8 above, he shall be punishable with imprisonment for a term which may extend to six months or with fine or with both. 10.11. Repetitive offences, without any specific/ special reasons recorded in the judgment of the Court, will entail an imprisonment term of not less than 6 months and can extend up to 5 years plus fine. All the offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r non-existent persons, etc. for passing fraudulent input tax credit etc; (e) As unless such person is arrested, his presence before investigating officer cannot be ensured. 10.16. Arrests in case of offences committed by companies or partnership firms: (I) In case the offence has been committed by a limited company or a partnership firm, then as per the provisions of Section 137 of CGST Act, 2017, the following persons are vicariously liable for the offence: (a) Person who, at the time of commission of the offence, was in charge of (i.e. in overall control of the day to day business of the company/ firm) and was responsible to the company/ firm/ association of persons for the conduct of the business of the company, unless he proves that the offence was committed without his knowledge and that he had exercised all due diligence to prevent the commission of the offence. (b) Director of the company, partner of a firm, manager, secretary or any other officer of the company/ firm, if it is proved that the offence has been committed with their consent or connivance or is attributable to their neglect. (II) In the case against companies and firms, therefore, the persons vicario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these documents in original, at the time of search proceedings / recording of statement, etc. for the purpose. (V) An Arrest Memo containing brief facts of cases, details of person arrested, gist of evidence, relevant sections under the CGST Act, 2017, the grounds of arrest, date and time of arrest etc., needs to be given to the arrestee under proper acknowledgement. The Arrest Memo should be made in triplicate and the original should be furnished to the accused. Dated signatures of the person arrested along with the time should be obtained on the other two copies as a token of having received the Arrest Memo. At least one independent witness needs to be present while furnishing arrest memo to the accused. A separate arrest memo has to be made and provided to each individual/ arrested person. This should be kept in mind in the event there are several arrests in a single case. Format of arrest memo prescribed under Circular No.128/47/2019-GST dated 23.12.2019 is a useful reference. Arrest Memo should be in a language which the accused can understand. In case of an illiterate person or when the Arrest Memo is in a language not understood by the person arrested, the Arrest Memo shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner. (e) In case of non-cooperation of the arrested person either during the arrest or post arrest formalities such as refusal to sign the arrest memo, obstruction of medical officer from performing examination, refusal to divulge contact details of family members, etc., while all means may be adopted to effect arrest, it is prudent to document the non-cooperation and obstruction of duty in the form of panchnama for the purpose of record and also for undertaking further necessary legal action. (f) After the medical examination, the arrestee should be produced in the Court of Chief Judicial Magistrate with the least delay and within 24 hours of the arrest for seeking remand. In case, it is not possible to produce him before the CJM for reason that the court is situated at a distant place, then the arrested person should be produced before a local duty Magistrate for seeking transit remand. Further, in case the arrestee is declared as medically unfit and is prescribed further examination/observation by the medical officer, he/she may still ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of the Code of Criminal Procedure, 1973. (II) One important provision to be taken note of is Section 57 of Cr.P.C., 1973, which provides that a person arrested without warrant shall not be detained for a longer period than, under the circumstances of the case, is reasonable but this shall not exceed twenty-four hours (excluding the journey time from place of arrest to the Magistrate's court). Within this period, as provided under Section 56 of Cr.P.C., 1973 the person making the arrest shall send the person arrested without warrant before a Magistrate having jurisdiction in the case. 10.19. There are certain safeguards provided under Section 69 of the CGST Act, 2017 for a person who is placed under arrest. These are: (i) If a person is arrested for a cognizable offence, he must be informed in writing of the grounds of arrest and he must be produced before a magistrate within 24 hours of his arrest; (ii) If a person is arrested for a non-cognizable and bailable offence, the Deputy/ Assistant Commissioner of CGST/SGST can release him on bail and he will be subject to the same provisions as an officer in-charge of a police station under Section 436 of the Code of Crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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