REFERENCE TO CRIMINAL PROCEDURE CODE UNDER CENTRAL GOODS AND SERVICES TAX ACT, 2017

[Mr. M. GOVINDARAJAN]

There are four places in the Central Goods and Services Tax Act, 2017 (‘Act’ for short) where a reference is made, directly or indirectly to the Criminal Procedure Code (‘Cr.PC’ for short) as detailed below-

• Section 67(10);
• Section 69 (3);
• Section 132 (4);
• Section 70(2).

Power of inspection, search and seizure

Section 67(1) of the Act gives powers to the proper officer to inspect any places of business of the taxable person or the persons engaged in the business of transporting goods or the owner or the operator of warehouse or godown or any other place.  The authorization for inspecting etc., shall be made in writing.  The other sub sections of section 67 give the procedure for inspection, search and seizure.  \\

Section 67(10) of the Act provides that the provisions of the Code of Criminal Procedure, 1973 relating to search and seizure, shall, so far as may be, apply to search and seizure under this section subject to the modification that sub-section (5) of section 165 of the said Code shall have effect as if for the word “Magistrate”, wherever it occurs, the word “Commissioner” were substituted.

Section 165(1)  of the Cr.PC provides that Whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorized to investigate may be found in any place with the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station.

Section 165(2) of Cr.PC provides that a police officer proceeding under sub- section (1), shall, if practicable, conduct the search in person.  Section 165(3) of Cr.PC provides that  If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may, after recording in writing his reasons for so doing, require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing, specifying the place to be searched, and so far as possible, the thing for which search is to be made; and such subordinate officer may thereupon search for such thing in such place.

Section 165(5) of Cr.PC provides that copies of any record made under sub- section (1) or sub- section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate.

Under the Act the required records shall be forwarded to the Commissioner of CGST instead of Magistrate.

Power to arrest

Section 69 of the Act gives the power to the Commissioner or his authorized person to arrest such person if he 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 central tax to arrest such person.

The second reference to Cr.PC under the Act is in relation to grant of bail for a person arrested in connection with the non cognizance and bailable offences enumerated in Section 132(1)(e) to (l) of the Act under section 69(3) of the Act.

Section 69(3) of the Act provides that Subject to the provisions of the Code of Criminal Procedure, 1973-

• 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;
• 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.

Punishment for certain offences

Section 132(1) of the Act provides the details of the offences that may be committed by any registered person or others under the provisions of the Act and the rules made there under and the details of punishment that could be imposed for such committing of offences. 

A third reference to Cr.PC is, in relation to the non cognizable and bailable offences, made in section 132(4).  Section 132(4) of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 19732, all offences under this Act, except the offences referred to in sub-section (5) shall be non-cognizable and bailable.

Section 132(5) provides that 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.  Therefore the offences enumerated under Section 132(1) (e) to (l) are non cognizable and bailable offences.

Powers to summon persons to give evidence and produce documents

The fourth reference to Cr.PC is in relation to the powers to summon persons to give evidence and produce documents, made in section 70 of the Act. 

Section 70(1) of the Act provides that the proper officer under this Act shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry in the same manner, as provided in the case of a civil court under the provisions of the Code of Civil Procedure, 1908.

Section 70(2) of the Act provides that every such inquiry referred to in sub-section (1) shall be deemed to be a “judicial proceedings” within the meaning of section 193 and section 228 of the Indian Penal Code