Newton Muthuri Kimani Vs Directorate of Enforcement (Bombay High Court)
Bombay High Court held that non-production of arrested person before the nearest Magistrate within 24 hours of the detention renders the arrest completely illegal and in violation of clause 2 of Article 23. Accordingly, the applicant would have to be released on bail.
Facts- This is an Application for bail, filed by the Applicant, who is arrayed as Accused No.3, in Case no. PMLA 02/2024, registered pursuant to Prosecution Complaint dated 06.02.2024, filed by the Assistant Director, Directorate of Enforcement, Panaji under Section 45 of the Prevention of Money Laundering Act, 2002 in compliance with F.I.R No.129/2023, dated 07.09.2023, registered by Anjuna Police Station under Sections 370, 370(A) r/w 34 IPC and 4, 5 and 8 of the Immoral Traffic (Prevention) Act, 1956, based on complaint filed by the complainant, Ashleen Kerubo.
Conclusion- Held that the Enforcement Directorate may not have recorded a formal “arrest” as is required under Section 57 of CrPC but has clearly kept the Applicant under their control and restraint, either through the Immigration Authorities, through whom the Applicant was physically held in a room at Delhi airport and thereafter, brought to Goa, under custody of the officers of the Enforcement Directorate. The entire facts commencing from 10:30 a.m. on 08.12.2023, with the formal arrest effected by the Enforcement Directorate on 09.12.2023, at 6:30 p.m. and on subsequent remand of the Applicant, clearly demonstrate that during this entire period, which is in excess of the 24 hours permissible for seeking a remand, under Sections 57 of CrPC, the Applicant was not a free man. The entire dentition for this period, without the order of a Magistrate, has therefore to be considered in contravention of provisions of Section 57 of CrPC and consequently in breach of the provisions of Article 22 of the Constitution of India.
