GST and CRPC: Arrest, Search and Bail By CS Shubham Budhiraja

Search Conducted by GST Department and Fake Invoice collected on which company were collecting ITC. The Directors filed writ petition contending that the procedure of CRPC is not followed by GST Department.

Court observation on inter-relation between GST & CRPC

In Section 135 of the Act, it is provided that the presumption of culpable mental state is available against such persons. In Section 136 of the Act, it is made clear that the statement recorded under Section 70 of the Act can be used in proceeding like prosecution as whey would be relevant.

Thus, apparently, there is material to make out primal-facile case of fraud against the Petitioners. In Section 67 of the Act, power of proper officer of making inspection of search and seizure is given. This provision shows that even before registration of crime, such power can be exercised. It was submitted that crime is registered under the Act with the officer, authority created under the Act

The provision of Section 67(10) of the Act shows that the provision of Section 165(5) of the Code of Criminal Procedure will not be applicable to such search and seizure and the report needs to be given to the Commissioner instead of Magistrate. This provision shows that this is special in nature and so this provision will have to be followed.

Section 69 of the Act we need to consider as it gives procedure which needs to be followed when arrested accused is not released on bail by officer mentioned in this section. Thus, the Magistrate comes into picture after production of accused before him and then the Magistrate will have to follow procedure given for remand purpose in the Code of Criminal Procedure

The provision of Section 69 (3)(b) of the Act shows that when bailable offence is committed, the Deputy Commissioner or the Assistant Commissioner needs to exercise the power, which is given to the officer in-charge of the police station in the Code of Criminal Procedure (underline added). The provision of Section 69 of the Act shows that subjective satisfaction of Commissioner is sufficient for effecting arrest of a person, who has committed the offence under Section 132 of the Act. In Section 132 of the Act, different kinds of offences are mentioned

The provision of Section 138 of the Act shows that compounding of the offence is possible either before or after institution of prosecution. There are some provisos, which show that in some circumstances the compounding may not be possible. The proviso to Section 138(1) of the Act shows that such compounding shall not affect the proceeding, if any, instituted under any other law and the compounding can be done only after making payment of tax, interest and penalty involved in such offences.

The aforesaid specific provisions and scheme of the Act show that separate Chapters are given in the Act for determination of tax not paid or erroneously refunded or input tax credit wrongly availed and for offences and penalties. In view of the scheme of the Act, this Court has no hesitation to hold that in the cases of present nature, both adjudication and prosecution can be started simultaneously. Further, the aforesaid special provisions shall prevail over the provisions of the Code of Criminal Procedure and it cannot be said that all the provisions of the Code of Criminal Procedure like Sections 154 and 173 of the Code of Criminal Procedure need to be followed for prosecution under the Act

White collar offences are more serious than offences like murder, dacoity etc. Such offences are committed after hatching conspiracy. This circumstance needs to be kept in mind by Court as the granting of relief of anticipatory bail hampers investigation and such approach causes damage to the image of judiciary.

The above mentioned expression is that of the author and it is made available only for the academic exercise. The author claims copyright over the overall content by virtue of Section 15 of Copyright act, 1957 r/w Doctrine of minimum creativity and Skill & Labor. The author extends no legal opinion with respect to the subject matter.

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