Page 87 - GSTL_23rd July 2020_Vol 38_Part 4

2020 ]HANUMANTHAPPA PATHRERA LAKSHMANA v. STATE, SENIOR INTELLIGENCE 453
ed under sub-section (1) for an offence specified under sub-section (5) of Section
132, the officer authorized to arrest the person shall inform such person of the
grounds of arrest and produce him before a Magistrate within 24 hours. Sub-
section (3)(a) of Section 69 of the CGST Act empowers that where a person is ar-
rested 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. Sub-section 3(b) of Section 69 of the CGST Act em-
powers that in a case of non-cognizable and bailable offence, the Deputy Com-
missioner or the Assistant Commissioner shall, for the purpose of releasing an
arrested person on bail or otherwise, have the same power and be subject to the
same provisions as an Officer in-charge of a Police Station.
15. On bare reading of Section 69 of the CGST Act clearly empowers
the Commissioner to authorize any Officer to arrest a person, if the Commission-
er has reasons to believe that if a person committed the offence specified in
Clause (a) or (b) or (c) or (d) of sub-section (1) of Section 132 and as per Section
132(4) of the CGST Act, if any offence is committed, other than the offence,
Clause (a) or (b) or (c) or (d) of sub-section 1 of Section 132 shall be non-
cognizable and bailable. As per sub-section (5) of Section 132, the offences speci-
fied in Clause (a) or (b) or (c) or (d) of sub-section (1) of Section 132 shall be cog-
nizable and non-bailable and punishable under Clause (i) up to 5 years and fine.
Therefore, if the petitioner is arrested for the offences other than the offence stat-
ed under sub-section (4) of Section 132 of the CGST Act which are non-
cognizable and bailable, wherein the Deputy Commissioner or Assistant Com-
missioner has power to release the petitioner on bail. If the Commissioner has
reasoned to believe that the petitioner is arrested for the offence committed un-
der Section 132(1)(a) or (b) or (c) or (d) which is punishable under sub-section (5)
of Section 132 of the CGST Act, which is cognizable and non-bailable offence, the
Officer authorized by the Commissioner after informing the grounds of arrest
has to produce before the Magistrate within 24 hours. If the assessee is arrested
and produced before the Magistrate, the petitioner/assessee is likely to be re-
manded to judicial custody. Therefore, when the offences punishable under sub-
section 1 Clause (a) or (b) or (c) or (d) of Section 132 of the CGST Act which falls
under the provisions of sub-section 5 of Section 132 of the CGST Act is a cog-
nizable and non-bailable offence punishable with imprisonment up to 5 years
and fine. Once a person apprehends his arrest in the hands of the Commissioner
under Section 69 of the CGST Act, the assessee has statutory right to seek antici-
patory bail under Section 438 of the Cr.P.C. At this juncture, it is relevant to men-
tion Section 438 of the Cr.P.C. which is as under :
438. Direction for grant of bail to person apprehending arrest. -
(1) Where any person has reason to believe that he may be arrested on ac-
cusation of having committed a non-bailable offence, he may apply to the
High Court or the Court of Session for a direction under this section that in
the event of such arrest he shall be released on bail; and that Court may, af-
ter taking into consideration, inter alia, the following factors, namely :-
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to
whether he has previously undergone imprisonment on con-
viction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and.
(iv) where the accusation has been made with the object of injur-
ing or humiliating the applicant by having him so arrested,
GST LAW TIMES  23rd July 2020  87