The Supreme Court has held that the arrest by the Enforcement Directorate (ED) is vitiated if the accused is not produced before the nearest magistrate within 24 hours.
The bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan has observed that the fundamental rights of the accused under Articles 21 and 22 of the Constitution of India have been violated while arresting the accused or after arresting him, it is the duty of the Court dealing with the bail application to release the accused on bail. The reason is that the arrest in cases where the accused is not presented before the nearest magistrate within 24 hours stands vitiated.
The appellant is the Directorate of Enforcement, challenging the High Court’s by which bail was granted to the respondent/accused in connection with an offence punishable under Section 4 of the Prevention of Money Laundering Act, 2002. The High Court found that the accused’s arrest was illegal, and on that ground, he was granted bail.
The high court noted that the applicant/accused was detained and taken into custody at 18.00 hours (6 pm) on 04.03.2022 at IGI Airport, New Delhi when the Bureau of Immigration executed the Look Out Circular (LOC) issued against the applicant and held him in custody on behalf of ED.
The ED contended that pursuant to the LOC issued against the respondent, he was detained at IGI Airport from 11.00 hours, on 5th March, 2022. But he was arrested at 01.15 hours on 6th March, 2022 by the appellant Enforcement Directorate and was produced before the Court of the Magistrate within 24 hours from 1.15 hours on 6th March, 2022.
The court noted that the LOC was issued at the instance of the appellant – Directorate of Enforcement. By executing the LOC, the Bureau of Immigration detained the respondent at IGI Airport from 4th March 2022 on behalf of the Appellant. The finding of fact recorded in paragraph 10 is that undisputedly, the physical custody of the respondent was taken over by the appellant from the Bureau of Immigration at 11.00 hours on 5th March, 2022. Thereafter, at 1.15 hours on 6th March 2022, an arrest memo was prepared by ED at Raipur. He was produced before the Court at 3 p.m. on 6th March, 2024.
The court stated that the perusal of the arrest order shows that the typed order was kept ready. The date and time of arrest were kept blank which appear to have been filled in by hand. The accused was not produced before the nearest learned Magistrate within 24 hours from 11.00 a.m. on 5th March, 2022. Therefore, the arrest of the respondent is rendered completely illegal as a result of the violation of clause 2 of Article 22 of the Constitution of India.
Thus, the court held that continuation of the respondent in custody without producing him before the nearest Magistrate within the stipulated time of 24 hours is completely illegal and it infringes fundamental rights under clause 2 of Article 22 of the Constitution of India. Therefore, his arrest gets vitiated on completion of 24 hours in custody. Since there is a violation of Article 22(2) of the Constitution, even his fundamental right to liberty guaranteed under Article 21 has been violated.
The court held that when arrest is illegal or is vitiated, bail cannot be denied on the grounds of non-fulfillment of twin tests under clause (ii) of sub-section 1 of Section 45 of PMLA.
Case Details
Case Title: Directorate Of Enforcement Versus Subhash Sharma
Case No.: Special Leave Petition (Criminal) No.1136/2023
Date: 21/01/2025
Counsel For Appellant: A.S.G Suryaprakash V Raju, Mukesh Kumar Maroria, AOR, Merusagar Samantaray, Adv. Mr. Arkaj Kumar, Adv. Mr. Ashok Panigrahi, Adv. Mr. B.K. Satija, Adv. Mr. Annam Venkatesh, Adv. Mr. Zoheb Hussain, Adv. Mr. Arvind Kumar Sharma, Aor, Adv.
Counsel For Respondent: Adv. Shivam Batra
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