Illegal arrest by ED : Bombay HC Grants Bail to Kenyan National in PMLA Case [Read Order]

The Bombay High Court has granted bail to a Kenyan national accused in a Prevention of Money Laundering Act (PMLA) case, holding that his arrest by the Enforcement Directorate (ED) was illegal as it violated the constitutional mandate to produce an arrested person before a magistrate within 24 hours.

Justice Valmiki Menezes granted the bail application, which had been previously rejected by the Special Court at Mapusa, pointing out that the procedural lapse vitiated the entire arrest process.

The core legal issue before the court was whether the period of detention by immigration authorities at the Delhi Airport, pursuant to a Look Out Circular (LOC) issued by the ED, should be counted as part of the 24-hour custody period, thereby rendering the subsequent formal arrest illegal for the delay in producing him before a magistrate.

Retrospective GST Cancellation: Delhi HC orders Re-inspection of Business Premises after Address Change [Read Order]

The ED argued that the applicant was prima facie guilty of money laundering, as he knowingly allowed his bank accounts to be used for proceeds of crime from a sex trafficking operation and facilitated illegal transfers abroad. They contended that he was a flight risk and that his detention by immigration was distinct from his formal arrest by the ED, which occurred later, thus complying with the 24-hour rule from the point of formal arrest.

The applicant's counsel contended that his arrest was fundamentally illegal. They argued that he was effectively in custody from the moment he was detained by immigration authorities at Delhi Airport at 10:30 a.m. on December 8, 2023, at the ED's behest. He was only produced before a magistrate in Goa at 7:30 p.m. the next day, a period exceeding 24 hours, which constituted a clear violation of his fundamental rights under Article 22 of the Constitution and Section 57 of the CrPC.

The court's analysis centered on Article 22(2) of the Constitution of India and Section 57 of the Code of Criminal Procedure (CrPC), which mandate that an arrested person must be produced before a magistrate within 24 hours.

The court relied on precedents, including the Supreme Court's decision in Director of Enforcement v. Subhash Sharma, to establish that the "custody" period begins from the moment a person is deprived of their liberty at the behest of the investigating agency, such as during detention by immigration authorities pursuant to an LOC.

After analyzing the facts and relevant precedents,the court held that the detention by immigration authorities was executed on behalf of the ED and was an integral part of the arrest process.

The failure to produce the applicant before a magistrate within 24 hours of his initial detention rendered the arrest illegal and in violation of his fundamental rights under Article 22. The court rejected the ED's arguments as evasive and found that the entire period of detention, without a magistrate's order, was unlawful.

Consequently, finding the arrest to be vitiated, the court allowed the bail application and ordered the applicant's release on bail upon furnishing a personal bond and surety, subject to several stringent conditions, including surrendering his passport and reporting to the ED regularly.

Support our journalism by subscribing to Taxscan premium. Follow us on Telegram for quick updates