Nawab Malik’s arrest: HC denies interim relief, says debatable issues involved

A division bench of Justices Prasanna B Varale and Shriram M Modak had on March 11 concluded the hearing in the case and reserved the interim order in Malik’s habeas corpus plea which claimed that his arrest was “illegal”, done with “political vendetta” and without following due process under the Criminal Procedure Code (CrPC).

Malik had told the high court that the ED wants to keep him in jail by alleging that he continues to have under his possession the property Goawala Building in Mumbai’s Kurla, which is reportedly involved in a money laundering case.

The NCP leader was arrested by the ED on February 23 and remanded in the agency’s custody. On Monday, a special court sent him to judicial custody till March 21. Malik told the high court that the ED has retrospectively applied the Prevention of Money Laundering Act (PMLA), which came into force after the alleged transaction which is said to have taken place nearly 22 years ago.

Senior advocate Amit Desai, along with advocates Taraq Sayed and Kushal Mor appearing for Malik, argued that his client has been implicated though no predicate offence or transaction for which he has been booked had taken place in 1999, 2003 or 2005. Desai added that the case is based on statements by persons who are not credible.

He added that mere possession of the property would not imply that he was involved in money laundering as it could have been done by someone else and Malik then came into possession without knowing if the purchase was made out of laundered money.

The ED, in its affidavit seeking dismissal of the plea filed through assistant director (Mumbai zone) Niraj Kumar, said Malik’s plea sought to combine multiple causes of action, including habeas corpus, quashing of ECIR and release/bail in a single petition and it amounted to “misjoinder (improperly joining together)” and therefore, the plea was not maintainable.

The ED is investigating the mode and method of payment used for the purchase of Goawala Building in Kurla.

The agency, through Additional Solicitor General (ASG) Anil Singh, also denied that it had picked up Malik forcibly. It claimed that Malik was arrested at 2.45 pm on February 23 before which he was served a summons and his statement was recorded after he “voluntarily” visited the ED office accompanied by his son.

The bench had asked ASG Singh that even if it is assumed that the transaction took place in 2005, whether the ED’s arguments should be based on a law which came into force in 2005.

Singh responded that the offence under PMLA is a separate or independent offence as per past judgments and assuming that predicate offence is quashed, still the offence under PMLA would continue to be probed. He added that the order remanding Malik in ED custody was not mechanical or illegal and therefore his habeas corpus plea was not maintainable.