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Directorate of Enforcement v. Subhash Sharma

Criminal Appeal · 2025 INSC 141Decided 21 Jan 2025
Crl.A. No.-000310-000310 - 2025
Justice Abhay S. Oka · Justice Ujjal Bhuyan

Background

Subhash Sharma was detained at Delhi's IGI Airport on the strength of a Look Out Circular issued at the request of the Directorate of Enforcement (ED) in a PMLA case. The Bureau of Immigration handed him over to ED custody at 11:00 am on 5 March 2022, but ED did not formally record his arrest until 1:15 am on 6 March 2022, and produced him before a Magistrate only around 3:00 pm that day: more than 24 hours after he was first taken into ED custody. The High Court found this arrest illegal for violating the constitutional requirement to produce an arrested person before a magistrate within 24 hours, and granted him bail on that basis. The ED appealed to the Supreme Court.

Decision Breakdown

The Supreme Court dismissed the ED's appeal and upheld the bail. It held that once the Bureau of Immigration detained Sharma on ED's behalf and ED took physical custody of him, the 24-hour clock under Article 22(2) of the Constitution (and Section 57 CrPC, which applies to PMLA proceedings via Section 65) started running from that point, not from whenever ED chose to formally paper the arrest. Since Sharma was not produced before a Magistrate within 24 hours of that custody, his arrest was rendered completely illegal and his fundamental rights under Articles 21 and 22 were violated. The Court held that once an arrest is found illegal or vitiated in this way, bail cannot be denied merely because the accused fails the stricter "twin conditions" test for bail under Section 45 of the PMLA: the constitutional violation itself entitles the accused to be released.

Lesson Learnt

The 24-hour deadline to produce an arrested person before a magistrate starts from the moment the arresting agency actually takes physical custody of that person, not from when it later chooses to formally record the arrest, and if this deadline is missed, the accused is entitled to bail regardless of how strict the bail conditions under a special law (like PMLA) otherwise are.

Official source (sci.gov.in)View Judgment (PDF)

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