2025 INSC 141
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO._______/2025
[@ SPECIAL LEAVE PETITION (CRIMINAL) NO.1136/2023]
DIRECTORATE OF ENFORCEMENT APPELLANT(S)
VERSUS
SUBHASH SHARMA RESPONDENT(S)
J U D G M E N T
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
Signature Not Verified
ground, he was granted bail.
Digitally signed by
KAVITA PAHUJA
Date: 2025.02.01
14:31:49 IST
Reason:
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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 6 th
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
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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 6 th 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
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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 21 and 22 of the Constitution.
9. 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.
10. Hence, we find no error in the impugned order, and
accordingly, the appeal is dismissed.
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11. Pending application(s), if any, shall stand disposed
of.
..........................J.
(ABHAY S.OKA)
..........................J.
(UJJAL BHUYAN)
NEW DELHI;
JANUARY 21, 2025.
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ITEM NO.14 COURT NO.5 SECTION II-C
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition for Special Leave to Appeal (Crl.)No.1136/2023
[Arising out of impugned final judgment and order dated
21-09-2022 in MCRC No. 5288/2022 passed by the High Court
of Chhatisgarh at Bilaspur]
DIRECTORATE OF ENFORCEMENT Petitioner(s)
VERSUS
SUBHASH SHARMA Respondent(s)
(IA No. 16672/2023 - EXEMPTION FROM FILING O.T.)
Date : 21-01-2025 This matter was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE ABHAY S. OKA
HON'BLE MR. JUSTICE UJJAL BHUYAN
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.
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UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal is dismissed in terms of the signed
Reportable Judgment.
Pending application(s), if any, shall stand disposed
of.
(KAVITA PAHUJA) (AVGV RAMU)
ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)
[Signed Reportable Judgment is placed on the file]
