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LAW RELATING TO ARREST, FIR, COMPLAINT AND ARREST MEMO

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LAW RELATING TO ARREST, FIR, COMPLAINT AND ARREST MEMO
By: Rachit Agarwal
November 6, 2020
All Articles by: Rachit Agarwal       View Profile
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VIMAL YASHWANTGIRI GOSWAMI VERSUS STATE OF GUJARAT [2020 (11) TMI 40 - GUJARAT HIGH COURT]

Meaning of Term Reasons to Believe

“Reason to believe” consists of two words “reason” and “to believe”. The word “reason” means cause or justification and the word “believe” means to accept as true or to have faith in it. Therefore, there must be justification for it and belief is the result of the mental exercise based on information received. The words “reason to believe' contemplate an objective determination based on intelligence, care and deliberation involving judicial review as distinguished from a purely subjective consideration.

Expression "reason to believe" will equally be applicable to the expression "is of opinion"

The authorised officer exercising power to arrest under section 69 of the CGST Act, is not a Police Officer and, therefore, is not obliged in law to register FIR against the person arrested in respect of an offence under Sections 132 of the CGST Act. They can only lodge a complaint in writing before the Court concerned.

It is required to be made clear that “arrest” and “bail” both are different parallels of law and cannot be mixed together

Section 69 and the section 132 of the CGST Act operates in totally different fields and the attempt on part of the petitioners to canvass that unless and until adjudication proceedings of the assessment determining the tax and penalty liability is completed by the department as provided under Chapter VIII of the CGST Act, the Commissioner cannot form at any opinion to reason to believe that the assessee has committed any offence, is contrary to the entire scheme of the CGST Act.

There is a basic fallacy in the argument of the petitioners that unless and until there is completion of adjudication process by the determination of the demand, as per the provisions of the CGST Act, the power to arrest as provided under sub-section (1) of section 69 of the CGST Act cannot be invoked. We, reject such argument.

While producing the person arrested under Section 69 of the CGST Act, the importance of valid, proper and exhaustive arrest memo should not be undermined. Every authorized officer under the Act, 2017 carrying out arrest must be clear that the preparation of an arrest memo is mandatory. Guidelines issued by the Supreme Court in D.K. Basu to be followed.

 

By: Rachit Agarwal - November 6, 2020

 

 

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