Sunday, October 2, 2016

Çognizable offence in GST

Model GST law (MGL) envisages enforcement thereof both by the Central Excise officers as well as by the officers of the State VAT department.  One of the provisions of MGL is pertaining to arrest – power of which the state government officers never had and the Central Excise officers were reluctant to use in order to avoid the ‘headaches’ following the arrest.

MGL provides for arresting[1] a person who commits an offence punishable under section 73(1)(i), (ii) or 73(2).  Every person who is authorised to arrest should produce the arrested person before a Magistrate within 24 hours, if the offence is a ‘Cognizable offence’.  In case the offence is non cognizable, the Deputy Commissioner or the Assistant Commissioner of CGST/SGST have the powers to release him on bail subject to Section 436 of CrPC.

Now, what is a ‘Cognizable offence’?  MGL has no answer – Cognizable offence is not defined here. Therefore the Criminal Procedure Code, 1973 is referred to, which defines a ‘Cognizable Offence’ as
Cognizable offence means an offence for which and ‘cognizable case’ means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant[2]

However, Section 73(3) and (4) of MGL makes a distinction between cognizable and non-cognizable offences.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Act, except the offences referred to in sub-section (4) shall be non-cognizable and bailable.”
(4) The offences relating to taxable goods and/or services where the amount of tax evaded exceeds two hundred and fifty lakh rupees shall be cognizable and non-bailable”.

Now, let us examine a situation if this act is passed as such, and if an overzealous or a hyperactive police officer arrests a person for evading GST of more than Rs. 2.5 Crores.  Since it is a cognizable offence as per Section 73(4), the police officer is well within his powers to arrest the offender and one cannot find fault with him. But however, if the arrested person is produced before the court, the court would not be able take cognizance of the offence![3]  The said police office officer can neither investigate or adjudicate a case under the Act, but can arrest a person!   Still the law doesn’t require him to produce the arrested person before any adjudicating authority of GST.

Therefore, ideally, it is felt that “Cognizable offence” for the purpose of this Act should be defined in an unambiguous manner.  May be this fact has to be taken into consideration seriously by the law makers, before the law is finalized.

 ______________________________________________________
Tail piece:
Section 74 discusses the cognizance of offences
No Court shall take cognizance of any offence punishable except with the previous sanction of the designated authority, and no Court inferior to that of a Magistrate of the First Class, shall try any such offence”.

It is felt that for better clarity, words “under this act” should have followed the words “any offence punishable” in Section 74, so that it becomes meaningful.





[1] Section 62
[2] Section 2(c) of CrPC
[3] Section 74

Tuesday, September 13, 2016

Cloud computing and Forensic Investigation

What is cloud computing? According to Oxford Dictionary, Cloud Computing means the practice of using a network of remote servers hosted on the Internet to store, manage, and process data, rather than a local server or a personal computer.
The definition of the term ‘Cloud Computing’ given by the US National Institute of Standards and Technology (NIST)  is as follows:
“Cloud computing is a model for enabling ubiquitous, convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction[1]”.
The above definition of ‘Cloud computing’ has been widely accepted in India[2].
However, to put it in simple terms, Cloud computing means storing and accessing data and applications on the Internet rather than one’s own computer system. Cloud in the term of Cloud Computing refers to set of hardware, networks, storage, services, and interfaces that combine to deliver aspects of computing as a service[3].   The initiative of the Ministry of Electronics & Information Technology, Government of India in this direction is named as ‘Meghraj’[4].  According to Worldwide Quarterly Cloud IT Infrastructure Tracker, April, 21st 2015 Cloud computing accounted for about 33% of the total IT expenditure in 2015 across the world and the cloud IT infrastructure spending is expected to be 45% of total IT infrastructure spending[5].
At a time when the corporate are going through a time of recession and are looking for ways and means to reduce costs, the concept of ‘Cloud Computing’ is a boon for them, which helps in enhancing the capacity without actually investing anything extra in infrastructure, training, purchase of new software etc. Of late, this concept has grown by leaps and bounds and is presently one of the important segment of the IT industry.
For those who provide the ‘Cloud computing’ services, called ‘Cloud Service Providers’ or CSP,  it is not an easy task to co-locate the virtual machines from multiple organizations in the same physical server and calls for extreme caution while handling.  Major CSPs such as Microsoft, Google, Amazon, Salesforce.com, GoGrid etc. ) are leveraging virtualization technologies combined with self-service capabilities for computing resources via the Internet[6].
Though most of the corporates are looking upto ‘Cloud computing’ in order to expand their horizons, what worries them is the security issues.  The risk of the confidential data being available in the public domain is something they dread of and there is no way that they can afford to compromise on the security of their applications and data.
Well, this is exactly the point the writer is looking at.  The corporate needn’t worry too much as the CSPs invest a lot of amounts in ensuring foolproof security to their data by devising various methods.  But on the part of the laws enforcing agencies of the government, it is a real tough task to gather intelligence on the possible financial frauds and successfully expose the fraud before the competent courts along with adequate material evidences to prove the case, lest all the efforts would be in vain.  The six aspects that worry the corporate - i.e., availability, confidentiality, data integrity, control, audit, cause a lot of concerns to these agencies too, albeit for a different reason.
As we know, the law enforcing agencies and their investigating officers in India still depend a lot on human intelligence and human caliber rather than the technological aids, compared to the developed countries. But at the same time, our business, technology and the corporate sector are almost at par with any developed country, if not more efficient.  This technological lag often creates a barrier at the field level investigation.  Recently, an officer of a central agency who was in charge of investigating a multi-crore scam reached the corporate office of a company named in the FIR and came across a certain material evidences in the system.  Excited with the discovery of the clinching evidence, the officer ordered the concerned person to immediately give ‘print’ of the entire data, in the same style as he would seize the entire register for the evidence available in some half page of the register.   When the executive informed that it would take at least two days to print the entire data, the confused officer had to consult his senior in the office to go back, without actually ‘seizing’ the material evidence.
In a case of financial fraud few years ago by an IT giant in India in order to evade huge tax amount investigated by one of the premier agencies, the investigators found it hard to collect the data from the company, as the data were stored in a server located in a different country.  It was only the sheer dynamism, command, presence of mind and perseverance on the part of the investigators that resulted in collection of the required data as well as the documents required for the purpose of investigation.  If this was the case before the introduction of ‘cloud computing’ just imagine the fate of the investigators in the present scenario.
The need of the hour is to strengthen the Forensic Investigation skills of the investigator along with adequate and updated knowledge about the compliance requirements and the laws governing the said technology.  Since the ‘cloud’ can cross multiple countries, the privacy laws applicable in the respective countries have to be taken into consideration.  Further, the details of the agreements of the CSPs and their clients have to be studied in order to find about the availability or the destruction of older data. 
Now, what is Forensic Investigation? The word forensic comes from the Latin term forensis meaning of or before the forum[7].  In the modern use, the term Forensic Investigation can be broadly understood as something related to authentic collection of evidence which would be accepted before a court of law.  And when it comes to the frauds and investigations related to computers and internet, the term Çyber Forensic' is used.  Further, digital forensics is the application of proven scientific methods and techniques in order to recover data from electronic / digital media[8].
Therefore, unless the investigators in general and investigators of financial fraud in particular should know thoroughly well about the techniques to collect evidence in the ‘cloud’ atmosphere.  A conventional investigator need not know how to do post mortem, but he should definitely know how it would help him solve the case. Similarly, a financial fraud investigator need not be an IT expert, but he should be trained to understand what he wants and how to collect it effectively.

(With the given facilities for training in the field in India, an ordinary investigator trained on basics of cyber forensics would be on cloud nine and would not know about cloud computing!!)





[1] National Institute of Standards and Technology (NIST), US department of Commerce Special Publication 800-145
[2] Cloud Computing & IP Challenges  by Himanshu Sharma and Martand Nemana, Singh & Associates published in www.mondaq.com on 6 September 2016
[3] http://www.erewise.com
[4] http://meity.gov.in/content/gi-cloud-initiative-meghraj
[5] Consultation Paper on Cloud Computing 10th June, 2016 by Telecom Regulatory Authority of India, http://www.networkworld.com/article/2175333/cloudUcomputing/idcUUcloudUwillUbeUU107bUindustryUbyU 2017.html
[6] Cloud computing security issues and challenges, Krešimir Popović, Željko Hocenski, Faculty of Electrical Engineering, Institute of Automation and Process Computing, Croatia

[7] https://en.wikipedia.org/wiki/Forensic_science
[8] https://en.wikipedia.org/wiki/Forensic_science