Bombay HC refuses to release Nawab Malik

“As certain debatable issues are raised in the petition, these issues are required to be heard at length. We are not inclined to allow the prayers in the interim applications and resultantly, they are rejected,” the HC said. It added that once Malik’s lawyers move his plea for final hearing, it will fix the date for the same.

A division bench of Justice Prasanna B Varale and Justice Shriram M Modak had on March 11 concluded the hearing in the case and reserved the interim order in Malik’s Habeas Corpus plea that had claimed that his arrest was “illegal”, done with “political vendetta” and without following due process under CrPC.

Malik had told HC that the ED wants to keep him in jail by alleging that he continues to have under his possession the Goawala Building in Kurla, which is reportedly involved in a money laundering case. He had alleged that the ED retrospectively applied Prevention of Money Laundering Act (PMLA), which came into force after the alleged transaction reportedly took place nearly 22 years ago. Senior advocate Amit Desai, along with advocates Taraq Sayed and Kushal Mor, appearing for Malik, said that he had been implicated, though no predicate offence or transaction, for which he has been booked had taken place in 1999, 2003 or 2005.

The HC observed that though the plea to release Malik looked “very attractive at first blush”, it was not inclined to grant such a prayer. “There is no dispute on the factual aspect that custody is an order passed by a competent court of jurisdiction, that is, the special court. Secondly, merely because the order is against the petitioner it cannot be termed as patently illegal or suffered from non application of mind,” it said.

The ED, through Additional Solicitor General Anil Singh, denied Malik’s charge that it had forcibly picked him up.

The HC noted that Malik himself has admitted that he appeared before the ED on February 23 in response to its summons and was then served with the arrest order. It said there was an endorsement of petitioner admitting that he has been informed about the grounds of his arrest.

The court found merit in ED’s submission that requirements of Sections 19 (power to arrest) of PMLA Act has been followed. It noted that as the “process or activity connected with proceeds of crime” is a “wider term” as per PMLA and since its constitutional validity is not challenged in court, the contention of retrospective operation of law cannot be accepted at this stage.

The court also refused to examine evidence or record findings on material collected by ED, stating that the same would be “premature” and “would adversely affect rights and contentions” of the petitioner. It said that Malik is entitled to take appropriate proceedings, including a bail application.

The HC said that previous FIRs and ECIRs have been merged by ED and a combined probe has been undertaken. It said that “it was not impressed” by arguments that there is no objectionable act attributable to Malik to attract provisions of PMLA.