The Supreme Court held that not presenting a person taken into custody by the Enforcement Directorate (ED) for a crime under the Prevention of Money Laundering Act, 2002, within 24 hours is illegal.
Subash Sharma, the respondent in the case, was taken into custody by the ED at 11:00 am on 5 March. However, he was not presented before the Magistrate within 24 hours as stipulated by Article 22(2) of the Constitution and Section 57 of the Code of Criminal Procedure,1973. Taking this into consideration, the Chhattisgarh High Court granted Sharma bail. The ED moved the Supreme Court against the decision of the High Court. It submitted that Sharma was presented before a Magistrate within 24 hours of making the arrest memo on 6 March 2022.
The Supreme Court rejected the ED’s argument and upheld the High Court’s decision. The judges held that once a court dealing with the accused has found a fundamental rights violation in the arrest, it is duty-bound to release the accused on bail. The Court clarified that in such cases, the attest is vitiated and bail must be granted even if all the conditions stipulated under the PMLA are not met.
Key words/phrases: Arrest under Prevention of Money Laundering Act—Article 22 of the Constitution—present accused before Magistrate within 24 hours—fundamental right—grant of bail
Directorate of Enforcement v Subhash Sharma
21 January 2025
Citations: 2025 INSC 141 | 2025 SCO.LR 1(3)[15]
Bench: Justices A.S. Oka and Ujjal Bhuyan
Read the Judgement here.
Case comment
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.
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