1. Bail granted under Section 4, PMLA — Arrest legality challenged — Failure to produce accused before Magistrate within 24 hours of custody. (Para 3 , 4 )
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2025 Supreme(SC) 262
SUPREME COURT OF INDIA
Abhay S.Oka, Ujjal Bhuyan, JJ.
Directorate of Enforcement - Appellant
Versus
Subhash Sharma - Respondent
Criminal Appeal No. 310 of 2025 [@ Special Leave Petition (Criminal) No.1136 of 2023]
Decided On : 21-01-2025
Important Points
An illegal arrest vitiates the grounds for denying bail, emphasizing the protection of fundamental rights under Articles 21 and 22 of the Constitution.
Subject
Criminal Law - Bail
Act Referred
Headnote
(A) Prevention of Money Laundering Act, 2002 - Section 4 - Constitution of India - Article 21 and Article 22(2) - Bail granted due to illegal arrest - High Court found that the respondent was not produced before a Magistrate within 24 hours of arrest, violating fundamental rights - The arrest was deemed illegal, thus warranting bail. (Paras 6, 8, 10)
(B) Fundamental Rights - Violation of Articles 21 and 22 - The court emphasized the necessity to uphold fundamental rights during arrest, stating that illegal arrest vitiates the grounds for denying bail. (Paras 6, 8)
Facts of the case:
The respondent was detained at IGI Airport and was not produced before a Magistrate within the required time frame, leading to the conclusion that his arrest was illegal.
Findings of Court:
The court upheld the High Court's decision to grant bail, confirming that the arrest was illegal due to the violation of constitutional provisions.
Issues: The main issue was whether the respondent's arrest was legal and if the violation of constitutional rights warranted bail.
Ratio Decidendi: The court ruled that an illegal arrest vitiates the grounds for denying bail, emphasizing the protection of fundamental rights under Articles 21 and 22.
Result: Appeal dismissed.
(B) Fundamental Rights - Violation of Articles 21 and 22 - The court emphasized the necessity to uphold fundamental rights during arrest, stating that illegal arrest vitiates the grounds for denying bail. (Paras 6, 8)
Facts of the case:
The respondent was detained at IGI Airport and was not produced before a Magistrate within the required time frame, leading to the conclusion that his arrest was illegal.
Findings of Court:
The court upheld the High Court's decision to grant bail, confirming that the arrest was illegal due to the violation of constitutional provisions.
Issues: The main issue was whether the respondent's arrest was legal and if the violation of constitutional rights warranted bail.
Ratio Decidendi: The court ruled that an illegal arrest vitiates the grounds for denying bail, emphasizing the protection of fundamental rights under Articles 21 and 22.
Result: Appeal dismissed.
Legal Category Hierarchy
Advocates appeared:
For the Petitioner: Mr. Suryaprakash V Raju, A.S.G. Mr. Mukesh Kumar Maroria, AOR Mr. 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.
For the Respondent: Mr.Shivam Batra, Adv.
For the Petitioner: Mr. Suryaprakash V Raju, A.S.G. Mr. Mukesh Kumar Maroria, AOR Mr. 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.
For the Respondent: Mr.Shivam Batra, Adv.
Table of Contents
2. Appellant contended that the 24-hour period for production before a Magistrate should be calculated from the time of the formal arrest memo, not initial detention. (Para 5 )
3. Detention by an agency on behalf of another constitutes custody; failure to produce the accused within 24 hours violates Article 22(2) and Article 21. (Para 6 )
4. When an arrest is vitiated by violation of fundamental rights under Articles 21 and 22, bail cannot be denied based on PMLA twin tests. (Para 7 , 8 , 9 )
5. Appeal dismissed; High Court order granting bail upheld. (Para 10 )
6. Does the 24-hour period for producing an accused before a Magistrate begin from the time of detention by an agency acting on behalf of the investigating authority?
Yes. If an agency detains a person on behalf of the investigating agency, the 24-hour period for production before a Magistrate begins from the time the investigating agency takes physical custody. (Para 6 )
7. Is the requirement to produce an accused before a Magistrate within 24 hours applicable to proceedings under the PMLA?
Yes. The requirement under Article 22(2) of the Constitution is incorporated in Section 57 of the CrPC, which applies to PMLA proceedings by virtue of Section 65 of the PMLA. (Para 7 )
8. How does the violation of fundamental rights during arrest affect the application of the twin tests for bail under Section 45 of the PMLA?
If the fundamental rights of the accused under Articles 21 and 22 are violated during arrest, the arrest is vitiated, and bail cannot be denied on the grounds of non-fulfillment of the twin tests under Section 45(1)(ii) of the PMLA. (Para 8 , 9 )
JUDGMENT :
ABHAY S OKA J.
1. Leave granted.
2. Heard learned counsel appearing for the appellant.
3. The appellant is the Directorate of Enforcement. By the impugned order, the High Court has granted bail to the respondent in connection with an offence punishable under Section 4 of the Prevention of Money Laundering Act, 2002 (for short, ‘the PMLA’). The High Court found that the respondent's arrest was illegal, and on that ground, he was granted bail.
4. In paragraph 10 of the impugned judgment, the High Court has recorded factual findings which read thus:
“From the documents available in the case diary and the aforesaid order, it is crystal clear that the applicant 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 LOC issued against the applicant and held him in custody on behalf of ED. It is also not in dispute that ED took physical custody of the applicant from the Bureau of Immigration at 11.00 hours (11 am) at IGI Airport on 05.03.2022 and brought him to Raipur where the ED in the afternoon on 06.03.2022 before the remand Court.” (underline supplied)
5. The submission of the learned counsel appearing for the appellant is that pursuant to the Look Out Circular (for short, ‘the LOC’) issued against the respondent, he was detained at IGI Airport from 11.00 hours, on 5th March, 2022. But he was shown as arrested at 01.15 hours on 6th March, 2022 by the appellant Enforcement Directorate and was produced before the Court of the learned Magistrate within 24 hours from 1.15 hours on 6th March, 2022.
6. This argument cannot be accepted. Admittedly, 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 perusal of the arrest order(Annexure p-1) 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. Admittedly, the respondent 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 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.
7. The requirement of clause 2 of Article 22 has been incorporated in Section 57 of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C). There is no inconsistency between the provisions of the PMLA and Section 57 of Cr.P.C. Hence, by virtue of Section 65 of the PMLA, Section 57 of the Cr.P.C applies to the proceedings under the PMLA.
8. Once a Court, while dealing with a bail application, finds 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 such cases stands vitiated. It is the duty of every Court to uphold the fundamental rights guaranteed under Articles
