'Once Arrest Is Found Illegal, Duty Of Court To Release Accused On Bail' : Supreme Court Rejects ED Appeal

The Supreme Court recently declared the arrest by the Enforcement Directorate (ED) as illegal and unconstitutional because the agency failed to secure the presence of the arrestee before the magistrate within 24 hours of the arrest. The arrestee was detained on 5th March 2022 at 11 AM at IGI Airport, Delhi by the Immigration Bureau in view of the Look Out Circular issued by the ED, however, the ED showed his arrest at 01:15 Hours on 6th March 2022, claiming that the arrest was not illegal because he was presented the same day at 3 PM before the magistrate within the stipulated 24 hours of the arrest.The ED's attempt to justify the arrest by citing a March 6th, 1:15 am arrest time was rejected by a bench of Justices Abhay S Oka and Ujjal Bhuyan. The bench noted the individual was already in custody by 11 am on March 5th, making the arrest illegal.“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.”, the court observed. The Court added that because there's no inconsistency between the provisions of PMLA and Section 57 of the Cr.P.C., thus the rule to present the arrestee before the magistrate within 24 hours of arrest applied to PMLA cases. Moreover, the Court observed that once it is found that the Articles 21 and 22 of the Constitution is violated, an accused is entitled to bail and the 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. “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 21 and 22 of the Constitution.” “Therefore, 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.”, the court added. Accordingly, the appeal was dismissed. Case Title: DIRECTORATE OF ENFORCEMENT VERSUS SUBHASH SHARMACitation : 2025 LiveLaw (SC) 137Click here to read/download the orderAppearance: For Petitioner(s) : 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 Respondent(s) : Mr.Shivam Batra, Adv.

'Once Arrest Is Found Illegal, Duty Of Court To Release Accused On Bail' : Supreme Court Rejects ED Appeal

Yash Mittal

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