While according the paramount importance to the fundamental rights of an accused, the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Directorate Of Enforcement vs Subhash Sharma in Special Leave Petition (Criminal) No. 1136/2023 and cited in Neutral Citation: 2025 INSC 141 that was pronounced just recently on January 21, 2025 in the exercise of its criminal appellate jurisdiction has minced just no words to hold in no uncertain terms that a Court must release an accused on bail if their fundamental rights under Articles 21 and 22 of the Constitution have been violated during or after their arrest. We thus see that the Apex Court dismissed an appeal that had been filed by the Directorate of Enforcement (ED) challenging the decision that had been delivered by the Chhattisgarh High Court which had granted bail to the respondent-accused under Section 4 of the Prevention of Money Laundering Act, 2002 (PMLA). Very rightly so!

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Abhay S Oka for a Bench of the Apex Court comprising of himself and so also Hon’ble Mr Justice Ujjal Bhuyan sets the ball in motion by first and foremost putting forth in para 1 that:
Leave granted.

As we see, the Bench then states in para 2 of this robust judgment that:
Heard learned counsel appearing for the appellant.

As it turned out, the Bench enunciates in para 3 of this remarkable judgment that:
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 ground, he was granted bail.

To put things in perspective, the Bench then envisages in para 4 of this most commendable judgment while elaborating on the factual findings stating that:
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).

Do note, the Bench then notes in para 5 of this progressive judgment that:
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 6th March, 2022.

Most forthrightly, it is worth noting that the Bench notes in para 6 of this pragmatic judgment propounding that:
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 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 6th 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 right to liberty guaranteed under Article 21 has been violated.

Be it also noted, the Bench then notes in para 7 of this rational judgment that, 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.

Most significantly and so also most remarkably, we see that the Bench then encapsulates in para 8 of this recent judgment what constitutes the cornerstone of this notable judgment postulating precisely that:
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.

As a corollary, we observe that the Bench then deems it fit to hasten to add in para 9 of this noteworthy judgment holding that:
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.

Resultantly, we see that the Bench then in the fitness of things deems it fit to direct and hold in para 10 of this pertinent judgment stating that:
Hence, we find no error in the impugned order, and accordingly, the appeal is dismissed.

Finally, we see that the Bench then draws the curtains of this most sagacious judgment by holding precisely in para 11 that:
Pending application(s), if any, shall stand disposed of.

In a nutshell, we thus see that the Apex Court Bench comprising of Hon’ble Mr Justice Abhay S Oka and Hon’ble Mr Justice Ujjal Bhuyan have made it indubitably clear that it is the duty of the court to release the accused on bail if it finds that their fundamental rights have been violated during or after arrest. To put it differently, we thus see that the bottom-line of this sagacious, short and straightforward judgment is that it is the duty of every Court to uphold the fundamental rights guaranteed under Articles 21 and 22 of the Constitution and an accused is not detained in contravention of them. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh