TIOL-DDT 1036 · the untouched capture
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<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><font color="#663399" size="3">TIOL-DDT 1036</font><br>
21.01.2009<br>
Wednesday</strong></font></p>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Arrest – Cr.P.C Amendments carry out Supreme Court Directions</strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Supreme Court had in the famous <em>DK Basu </em> case –[</font><font size="1" face="Verdana, Arial, Helvetica, sans-serif"><strong><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=50&filename=legal/sc/2002/2002-TIOL-230-SC-MISC.htm" target="_blank">2002-TIOL-230-SC-MISC</a></strong></font><font size="2" face="Verdana, Arial, Helvetica, sans-serif">]
directed</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">We therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention <strong>till legal provisions </strong> are made in that behalf as preventive measures:</font></p>
<blockquote>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.<br>
<br>
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.<br>
<br>
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.<br>
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(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.<br>
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(5) The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.<br>
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(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.<br>
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(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer affecting the arrest and its copy provided to the arrestee.<br>
<br>
(8) The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. Director, Health Services should prepare such a panel for all Tehsils and Districts as well.<br>
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(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.<br>
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(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.<br>
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(11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.</font></p>
</blockquote>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">This judgement was delivered in 1996 and now the Cr.P.C is amended to include these provisions in the Code, in various Sections.</font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">41B . Every police officer while making an arrest shall—</font></p>
<blockquote>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif"><em>(a) </em>bear an accurate, visible and clear identification of his name which will facilitate easy identification;</font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif"><em>(b) </em>prepare a memorandum of arrest which shall be—</font></p>
<blockquote>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif"><em>(i) </em>attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;</font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif"><em>(ii) </em>countersigned by the person arrested; and</font></p>
</blockquote>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">(<em>c</em>) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.</font></p>
</blockquote>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">41C . (<em>1</em>) The State Government shall establish a police control room—</font></p>
<blockquote>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif"><em>(a) </em>in every district; and</font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif"><em>(b) </em>at State level.</font></p>
</blockquote>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">(<em>2</em>) The State Government shall cause to be displayed on the notice board kept outside the control rooms at every district, the names and addresses of the persons arrested and the name and designation of the police officers who made the arrests.</font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">(<em>3</em>) The control room at the Police Headquarters at the State level shall collect from time to time, details about the persons arrested, nature of the offence with which they are charged and maintain a database for the information of the general public.</font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">Section 46:—</font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">“Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.”</font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>S </strong>ection 54:—</font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">54. (<em>1</em>) When any person is arrested, he shall be examined by a medical officer in the service of Central or State Governments and in case the medical officer is not available by a registered medical practitioner soon after the arrest is made:</font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">Provided that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner.</font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">(<em>2</em>) The medical officer or a registered medical practitioner so examining the arrested person shall prepare the record of such examination, mentioning therein any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted.</font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">(<em>3</em>) Where an examination is made under sub-section (<em>1</em>), a copy of the report of such examination shall be furnished by the medical officer or registered medical practitioner, as the case may be, to the arrested person or the person nominated by such arrested person.”</font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">55A . It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Advocate allowed during Interrogation; </strong>A new Section 41 D is added which stipulates - 41D. <font color="#FF6633">When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not <strong>throughout interrogation</strong>.</font></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Now
who decides when the advocate should leave?</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>(<a href="http://www.taxindiaonline.com/RC2/pdfdocs/Crpc.pdf" target="_blank">See
full text of Amendment in Cr Pc</a>)</strong></font></p>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Are the changes applicable to arrest under Customs Act?</strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">All the amendments state about arrest/interrogation by Police – But there is a classic concept that Customs officers are not police officers and that is exactly why the statements recorded before them are valid pieces of evidence.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Supreme Court had in the <em>DK Basu </em> case held that – “These (directions) would apply with equal force to the other governmental agencies also to which a reference has been made earlier.”</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Anyway perhaps to remove the cobwebs from the Customs minds, the Parliament has clarified that in a new Section 60A which stipulates,</font></p>
<blockquote>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>60A . No arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force providing for arrest.</strong></font></p>
</blockquote>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">So the amended provisions apply to Customs arrests with equal vigour.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">That brings us to another important issue. The amendments also provide that routine arrests cannot be made for offences for which the punishment is seven years and less. So you can't really arrest for a Customs offence.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">More about that in another edition of <strong>DDT</strong>.</font></p>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Finance Ministry offers Internship to Law Students</strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">To familiarize the willing and eligible Undergraduates pursuing five year integrated course in Law and Graduates pursuing Post-Graduation /Postgraduates pursuing Research in Economics/Finance/Management with the overall process of formulation of economic policies of the Government at macro level, the Department of Economic Affairs has launched an Internship Programme. The interns will get a token remuneration of Rs. 5000/- per month.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><a href="http://www.taxindiaonline.com/RC2/pdfdocs/wnew/notification_internship.pdf" target="_blank">F.No.A.48011 /20/2008- Admn.I – Dated 16th January, 2009</a></strong></font></p>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Present crises should not be compared to the Great Depression: 2009 difficult - Montek</strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Dr. Montek Singh Ahluwalia , Deputy Chairman Planning Commission, addressing the Valedictory Session of CII Partnership Summit 2009 said that, the present crises cannot and should not be compared to the 'Great Depression'. The effect of global crises has been far beyond than was expected and unlike the case of great depression, the industrialized countries have now realized the importance of fiscal stimulus. Concerted efforts towards fiscal stimulus are being made around the world. Dr. Ahluwalia warned that the year 2009 would be difficult. He further said that economic revival was the top priority for the Indian government as of date. He was hopeful that towards the end of the year things would look up.</font></p>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Black in White</strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Or the first time a Black man is in the White House and that is History, but those in the <em>legal </em> profession can relate to the President and the First Lady as both of them have the LAW background.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">43 MEN, 42 of them white have occupied the most prestigious political office in the world and they came from different backgrounds and professions.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Lyndon Johnson was a teacher at a small school in South Texas. Woodrow Wilson was president of Princeton University. James Garfield was a preacher.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">William Howard Taft is the only President who served as both President and Chief Justice of the Supreme Court. John F. Kennedy won a Pulitzer Prize in 1957 for his collection of essays. George Washington and Jimmy Carter were farmers; Carter made peanuts very popular. Woodrow Wilson became the first President to marry in office.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">President Obama taught constitutional law at the University of Chicago.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">One of my editorial colleagues was so carried away with the inaugural speech that he insisted that we carry it. He says, “This is indeed a remarkable speech - every word of it. It has a strong message for everybody on this Planet. He not only addressed his fellow Americans but sent out a message to the world leaders - good, bad and ugly that now is the time to take a deep breath and change course.”</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><a href="http://www.taxindiaonline.com/RC2/inside2.php3?filename=bnews_detail.php3&newsid=8468" target="_blank"><strong>Please see our Editorial.</strong></a></font></p>
<p align="center"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"> <strong><font color="#006600">Jurispruden</font><font color="#FF6633" size="5">tiol</font><font color="#006600">– Tomorrow's cases</font></strong></font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><strong><strong><strong><strong><strong><strong><b><img src="http://www.taxindiaonline.com/RC2/image/stories/ddt_hammer.jpg" alt="Legal Corner Icon" width="100" height="84" hspace="5" border="0" align="left"></b></strong></strong></strong></strong></strong></strong></strong></font><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>NDPS</strong></font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Search - when information or intimation or knowledge comes to the notice of the Investigating officer in course of the regular patrolling or an investigation of some other offence, it is not necessary to follow the conditions incorporated in section 42 (like informing the superior officer) – Supreme Court</strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>IT</strong> is settled proposition of law when such an information or intimation or knowledge comes to the notice of the Investigating officer in course of the regular patrolling or an investigation of some other offence, itis not necessary to follow in all cases the conditions incorporated in section 42.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The question as to whether the officer who conducted the proceedings was empowered officer or not was not raised before the trial court and the High Court and, therefore, that plea cannot be entertained.</font></p>
<p align="justify"><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Income Tax</strong></font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Non-resident - services provided and service tax collected - assessee cannot exclude service tax from total receipts to be reckoned for determining presumptive tax under Sec 44BB : ITAT</strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>ONE</strong> unmistakable change that has taken place on the horizon of tax disputes in the past few years is the rise of service tax to the numero uno place. And it is evidently not confined only to the domain of indirect taxes. It has already significantly pervaded even the direct tax horizon. And this is the bone of contention between a non-resident company and the Revenue. The issue was whether service tax collected by the assessee from its client for services provided was includible in the taxable receipts under Sec 44BB ? And the verdict has gone in favour of the Revenue on the ground that Sec 44BB is a special provision and prescribes presumptive tax on total receipts linked to the services provided or supplied made. In other words, Sec 44BB is a self-contained code which cannot be guided by Sec 5 for arriving at total income. It is a presumptive tax on total receipts and makes no room for any exclusion if a payment is directly linked to the services provided in the areas of exploration or prospecting of mineral oil.</font></p>
<p align="justify"><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Customs</strong></font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Unconstitutional 'collection' of Sugar Cess is subject to the Doctrine of Unjust enrichment – Tribunal allows Revenue appeal by way of limited remand</strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>THIS </strong> is a “ <em>sweet and refined </em>” Revenue appeal.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Brief facts of the case are that the respondents had imported refined sugar which was assessed under Customs Tariff Heading 1701 11 09. The sugar so imported was charged Cess at the rate of Rs.14 /- per quintal under Sugar Cess Act, 1982 and accordingly the <strong><em>importer </em></strong> paid an amount of Rs.5 ,25,000 /- towards Sugar Cess.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The levy of Sugar Cess was challenged by the importer in Bombay High Court and it was held that the sugar cess cannot be levied on imported sugar. The respondent, thereafter, filed a refund claim in respect of Sugar Cess so paid by it. The claim was sanctioned by Asst. Commissioner but was credited to the Consumer Welfare fund on the ground that the respondents could not produce sufficient evidence to show that incidence of duty has not been passed on to others.</font></p>
<p align="justify"><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Drawback</strong></font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Drawback allowable only if goods which are re-exported are 'the goods' which are identified as having been imported into India: High Court</strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>THE </strong>appellant, M/s Gujarat State Fertilizers Co Ltd (Fibre unit) (actually their predecessor-company) imported ‘extruder screws with motor' for their spinning lines on payment of appropriate duty. Out of these imports, they decided to re-export four ‘extruder screws' that were found defective. Shipping bills were filed for export against a claim of drawback. The Assistant Collector (Drawback) disallowed the drawback claim on the ground that the re-export is not in accordance with the provisions of s. 74 of the Customs Act, 1962 (as it stood then). He observed that the drawback claim fails as the goods re-exported are not identified as the same goods which were imported into India. An appeal filed with the Collector (Appeals) and the Revisionary Authority also failed. With the result the appellant approached the High Court for relief.</font></p>
<p align="justify"><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>See our columns tomorrow for the judgements</strong></font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">Until tomorrow with more <strong>DDT</strong></font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">Have a nice Day.</font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">Mail your comments to</font><font size="2" face="Verdana, Arial, Helvetica, sans-serif"> <a href="mailto:vijaywrite@taxindiaonline.com">vijaywrite@taxindiaonline.com</a></font></p>
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