Article Summary: In a significant move towards procedural fairness, the GST Investigation Wing issued a instruction on January 13, 2025, requiring the grounds of arrest to be provided in writing alongside the arrest memo. Under Section 69 of the Central Goods and Services Tax Act, 2017, commissioners are authorized to arrest individuals suspected of serious tax offenses like evasion and fraudulent activities. Previously, only verbal explanations were mandated, leading to concerns of arbitrary arrests. Recent judicial precedents, including the Supreme Court’s stance distinguishing between ‘grounds’ and ‘reasons’ of arrest, emphasized the fundamental right to be informed clearly about the basis of arrest. This directive aims to prevent misuse of authority and ensures individuals can effectively challenge remand and seek bail, thus upholding constitutional principles of due process.
A consequential instruction has been recently notified by the GST Investigation Wing on 13th January, 2025 which mandates the grounds of arrest to be furnished in writing to the arrestee as an annexure to the arrest memo. Section 69 of the Central Goods and Services Tax Act, 2017 qualifies the commissioner to authorize arrest of any individual suspected of committing offences specified under section 132. These offences include tax evasion, failure to pay collected tax, falsifying financial documents, fraudulently issuing invoices, availing input tax credit or obtaining refund. Furthermore, certain offences specified in section 132(5) are cognizable and non-bailable and entails a maximum punishment of 5 years of imprisonment. Thus, the arrestee necessarily requires to be informed about the facts for which he is arrested so that he can efficaciously defend himself against custodial remand and seek bail.
The preceding instruction issued on 17th August, 2022 merely required the tax authorities to verbally explain the grounds of arrest to the arrestee and note this fact in the arrest memo. As a result, the reasons of arrest were recorded in writing in the arrest memo but the grounds of arrest were only orally explained to the arrested person. This lacuna in the procedure for arrest was exploited by the tax authorities leading to numerous instances of arbitrary arrests. The Hon’ble Supreme Court in Prabir Purkayastha v. State (NCT of Delhi), Criminal Appeal (D. No. 42896/2023), distinguished between the ‘grounds of arrest’ and ‘reasons of arrest.’ Reasons of arrest are general in nature and are indicated in the arrest memo as purely formal parameters. These reasons may include, “to prevent the accused from committing any further offence; for proper investigation of the offence; to prevent the accused from tampering with the evidence; to prevent the accused from making any inducement, threat or promise to any person acquainted with the facts of the case in order to dissuade him from disclosing such facts to the court or the investigating officer.” Conversely, the grounds of arrest are the basic facts which constitute the offence and which necessitates the arrest of an individual. Unlike the reasons of arrest, they are personal to the arrestee and are fundamental for constructively resisting custodial remand.
The right to be informed of the grounds of Arrest is a fundamental right and emanates from Article 22 of the Indian Constitution. Section 47 of BNSS also mandates a police officer arresting a person without warrant to forthwith communicate to him full particulars of the offence for which he is arrested. The Delhi High Court in Pranav Kuckreja (In Police Custody) v. State (NCT of Delhi), (W.P. (Crl) No. 3476/2024), stipulated that the grounds of arrest are mandatory and without exception since they serve as fundamental basis for arrestee to seek legal remedy and/or challenge remand. Moreover, the Delhi High Court in Kshitij Ghildiyal v. Director General of GST Intelligence, (W.P. (Crl) No. 3770/2024), gave two primary reasons for which the grounds of arrest must be furnished in writing to the arrested person as a matter of course and without exception. Firstly, a situation where the grounds of arrest are orally explained to the arrested person and this fact is subsequently disputed by him may culminate into a case of he said-she said leading to procedural impediments. Secondly, the legislative intent behind the requirement of communication of grounds of arrest is not only to apprise the arrestee but to enable him to seek legal remedy and present a case for release on bail. Thus, to satisfy the constitutional objective behind Article 22, the communication of the grounds of arrest must be unambiguous, categorical and meaningful.
Hitherto, the authorities could arbitrarily arrest and detain individuals by exploiting procedural lapses. Devoid of written grounds of arrest, the accused could not seek bail before the courts. The legal implication of recent judicial pronouncements and the concomitant instruction is that non-communication of grounds of arrest in writing will vitiate the entire process of arrest and remand. Thus, the recent instruction upholds the basic constitutional tenets enshrined in Article 22 and checks departmental excesses.
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