'Once Arrest Is Found Illegal, Duty Of Court To Release Accused On Bail' : Supreme Court Rejects ED Appeal 03/02/25, 1:00 AM
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'Once Arrest Is Found Illegal, Duty Of Court To Release Accused On
Bail' : Supreme Court Rejects ED Appeal
Yash Mittal
(/yash-mittal)
1 Feb 2025 7:52 PM
Listen to this Article
0:00 3:49
The Supreme Court recently declared the arrest by the Enforcement Directorate (ED) as illegal and
Trending News
unconstitutional because the agency failed to secure the presence of the arrestee before the
magistrate within 24 hours of the arrest. Supreme Court Annu
Digest 2024: Service
(/supreme-court/supre
The arrestee was detained on 5th March 2022 at 11 AM at IGI Airport, Delhi by the Immigration court-orders-and-judgm
Bureau in view of the Look Out Circular issued by the ED, however, the ED showed his arrest at 01:15 labour-and-service-cases-annual-digest-2024-
282707)
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. Supreme Court Mont
Digest- December 20
Also Read - 'Court Fee Refund Only If Case Settled Through ADR Mechanisms' : Supreme Court Rejects Refund With Statute And
Claim For Private Out-of-Court Settlement (/supreme-court/court-fee-refund-only-if-case-settled-through-adr- (/supreme-court/supreme-court-judgments-a
Subject...
mechanisms-supreme-court-rejects-refund-claim-for-private-out-of-court-settlement-282713) orders-monthly-digest-december-2024-28267
The ED's attempt to justify the arrest by citing a March 6th, 1:15 am arrest time was rejected by a Supreme Court Annu
Digest 2024: Preven
bench of Justices Abhay S Oka and Ujjal Bhuyan
Bhuyan. The bench noted the individual was already in of Money Laundering
custody by 11 am on March 5th, making the arrest illegal. (/supreme-court/supreme-court-judgments-a
Act,...
orders-prevention-of-money-laundering-act-di
2024-282043)
Supreme Court Annu
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'Once Arrest Is Found Illegal, Duty Of Court To Release Accused On Bail' : Supreme Court Rejects ED Appeal 03/02/25, 1:00 AM
Digest 2024: BSA &
“Admittedly, the respondent was not produced before the nearest learned Magistrate within 24 Evidence Act
hours from 11.00 a.m. on 5th March, 2022. Therefore, the arrest of the respondent is rendered (/supreme-court/supreme-court-judgments-a
orders-evidence-act-and-bharatiya-sakshya-
completely illegal as a result of the violation of clause 2 of Article 22 of the Constitution of India. adhiniyam-annual-digest-2024-280893)
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.
Also Read - Supreme Court Annual Digest 2024: Service Law (/supreme-court/supreme-court-orders-and-
judgment-labour-and-service-cases-annual-digest-2024-282707)
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.
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Regular Sanctioned Posts (/supreme-court/supreme-court-orders-regular-pay-to-petitioners-who-were-appointed-
as-part-time-sweepers-on-regular-sanctioned-posts-282698)
“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 SHARMA
Citation : 2025 LiveLaw (SC) 137
Click here to read/download the order (
https://www.livelaw.in/pdf_upload/42431202251458599judgement21-jan-2025-584578.pdf)
Appearance:
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.
Tags
Justice Abhay S Oka (https://www.livelaw.in/tags/justice-abhay-s-oka)
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'Once Arrest Is Found Illegal, Duty Of Court To Release Accused On Bail' : Supreme Court Rejects ED Appeal 03/02/25, 1:00 AM
Justice Ujjal Bhuyan (https://www.livelaw.in/tags/justice-ujjal-bhuyan)
Enforcement Directorate(ED) (https://www.livelaw.in/tags/enforcement-directorateed)
Illegal Arrest (https://www.livelaw.in/tags/illegal-arrest)
Article 21 Constitution of India (https://www.livelaw.in/tags/article-21-constitution-of-india)
Section 57 Cr.PC (https://www.livelaw.in/tags/section-57-crpc)
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