Is Nawab Malik a ‘sick person’ as per PMLA and entitled to medical bail, asks Bombay High Court, posts bail hearing to February 21

A single-judge bench of Justice Makarand S Karnik was hearing Malik’s plea challenging the November 30, 2022, special court order rejecting his bail plea.

Malik was arrested in February last year by the Enforcement Directorate (ED) in a money laundering case registered over a property called Goawala compound in Kurla, linked to fugitive gangster Dawood Ibrahim.

Malik, who was a minister in the previous Maha Vikas Agadi (MVA) government, faces health issues and has been admitted to a private hospital since May. The special court had said he would remain in the hospital until further orders.

Justice Karnik told Malik’s lawyers, “If I am not satisfied on medical grounds, then you (Malik) will have to wait for your turn (for the bail plea to be heard on merits.) There are many other urgent matters on board (hearing list). Tomorrow, I don’t want anyone to say anything.”

The court asked senior advocate Amit Desai for Malik and Additional Solicitor General (ASG) Anil Singh, representing the ED, on the issue of ‘sick person’ under the PMLA and whether Malik could be construed to be one.

As per Section 45 of the PMLA, the twin conditions have to be fulfilled for the grant of bail by the court for offences punishable with a jail term of more than three years. The court must be satisfied that there were reasonable grounds to believe that the accused was not prima guilty and was unlikely to commit an offence if granted bail.

However, the twin conditions are not applied if the accused is below 16 years of age or is a woman or sick or infirm and he or she can be released on bail. “I have some questions on this as to how many matters are coming up where the person (accused) says grant me bail as I am sick. So I want to know what is a sick person as per PMLA,” Justice Karnik said.

“If I am satisfied that the applicant in the present case (Malik) is a sick person, then the twin conditions will not apply. But if I am of the opinion that he is not a sick person or is being treated well while in judicial custody, then his bail plea would be heard later on merits,” the court said.

ASG Singh for ED said that he would make submissions to establish Malik was not a sick person and the twin conditions will apply in the case to bar him from release on bail. However, Desai, representing Malik, referred to a judgement passed by Justice Karnik in Former Home Minister Anil Deshmukh’s bail plea in the CBI case and argued that in the said case, the court had considered a grant of bail on both health grounds and on merits.

Besides questioning the reliability of dismissed cop Sachin Waze’s statements against Deshmukh, Justice Karnik, while granting bail to him, had also referred to Deshmukh’s age of 73 years and had noted him suffering from multiple ailments was a “factor which deserved to be taken into consideration”.