Page 73 - GSTL_30th April 2020_Vol 35_Part 5

2020 ] GOVIND AGARWAL v. STATE OF U.P. 559
(e) as unless such person is arrested, his presence in
the Court whenever required cannot be ensured;
and the police officer shall record while making such arrest, his reasons in
writing :
Provided that a police officer shall, in all cases where the arrest of a person
is not required under the provisions of this sub-section, record the reasons
in writing for not making the arrest.
41A. Notice of appearance before police officer. - (1) The police officer
shall, in all cases where the arrest of a person is not required under the pro-
visions of sub-section (1) of section 41, issue a notice directing the person
against whom a reasonable complaint has been made, or credible infor-
mation has been received, or a reasonable suspicion exists that he has
committed a cognizable offence, to appear before him or at such other place
as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that
person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice,
he shall not be arrested in respect of the offence referred to in the notice un-
less, for reasons to be recorded, the police officer is of the opinion that he
ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the
notice or is unwilling to identify himself, the police officer may, subject to
such orders as may have been passed by a competent Court in this behalf,
arrest him for the offence mentioned in the notice.
Arrest - Power to arrest - When to be exercised - Section 69 and 132 of
Central Goods and Services Tax Act, 2017. - Power of arrest should not be
exercised at the whims and caprices of any officer or for the sake of recov-
ery or terrorizing any businessman or create an atmosphere of fear, where-
as it should be exercised in exceptional circumstances during investigation,
which illustratively may be : (i) a person is involved in evasion of huge
amount of tax and is having no permanent place of business, (ii) a person is
not appearing in spite of repeated summons and is involved in huge
amount of evasion of tax, (iii) a person is a habitual offender and he has
been prosecuted or convicted on earlier occasion, (iv) a person is likely to
flee from country, (v) a person is originator of fake invoice, i.e., invoices
without payment of tax, and (vi) when direct documentary or otherwise
concrete evidence is available on file/record of active involvement of a per-
son in tax evasion [2016 (44) S.T.R 481 (Del.), 2019 (25) G.S.T.L. 321 (Mad.);
(2011) 1 SCC 694 relied on]. [paras 9, 10]
12. By drawing attention to the above rulings, the main point which
has been emphasized by the Learned Counsel for the applicant is that because no
proper notice has been served upon the applicant demanding outstanding
amount of GST, therefore, there was no necessity of the accused being arrested.
A legal notice was required to be served upon the applicant to pay the outstand-
ing amount of GST but instead of that FIR has been lodged on the basis of which
the applicant is apprehending imminent arrest which has necessitated him to
move this anticipatory bail application seeking protection from this Court. It was
further emphasized during argument by the Learned Counsel for the applicant
that U.P. Goods and Services Tax Act, 2017 (In short U.P. Act) is a complete code
in itself, therefore, there was no need for imposing offence under the above-
mentioned sections of IPC. He has also drawn attention towards Sections 122 as
well as 132 of the U.P. Act which provides penalties for an offence having been
found committed under the said Act, would be punishable and has again em-
phasized that since no service of notice has been effected of any fixed amount,
which is being stated to have been violated by him, therefore, this kind of FIR is
nothing but an abuse of the process of law.
GST LAW TIMES  30th April 2020  73