Bombay High Court hears Nawab Malik Habeas Corpus plea: LIVE UPDATES

The Bombay High Court will continue hearing today a Habeas Corpus plea filed by Maharashtra Cabinet Minister Nawab Malik challenging the case of money laundering registered against him by the Enforcement Directorate (ED) and seeking his immediate release from ED custody.A Bench of Justices PB Varale and SM Modak will hear the matter.Yesterday, Malik's counsel Senior Advocate Amit Desai concluded his arguments, and the Additional Solicitor General (ASG) Anil Singh is expected to begin arguments today. ED had arrested Malik on allegations that he purchased a property at a rate lower than market value from Dawood.Special Judge RN Rokade had initially remanded Malik to ED custody reasoning that sufficient time would be required to investigate proceeds of crime which traversed over the last 20 years.The special judge then sent Malik to judicial custody till March 21.Read live updates from Bombay High Court below..ASG: Before I begin, I want to in shirt give a scheme of the Act. The purpose, object and intent of the Act..Court: If you are starting with the object of the Act.. ASG: I am just giving an overview, not reading the Act. Money laundering has an effect on integrity of the nation. The effect of money laundering has international ramification..ASG: Hence a comprehensive act was sought to be made. international community also took of the same. The purpose is to prevent money laundering and to regulate activities pertaining to money laundering..ASG: With this backdrop, let us go the relevant provision. The definition clause..Court: We accept your submission, that these are the four heads in consonance of the Act. You can read the four objects of the Act..ASG reads the four objects mentioned in the Act. Court: Now proceed further… ASG: See definition clause 2(n)(a) of the Act..ASG: At the stage of investigation, the purpose is collecting evidence. Now see definition of proceeds of crime..ASG: The proceeds of crime relate to criminal activity relating to the scheduled offences. “Concerning” and related to” all included within the criminal activity. Now see section 3..ASG: Any process or activity collected with the proceeds of crime, including adjudication and possession… Court: “directly or indirectly attempts to indulge or knowingly assists or knowingly” - basic is knowledge here, the actual involvement..ASG continues reading. ASG: What existed earlier was direct or indirect involvement. Another part which is important is the explanation: concealment; or possession; or acquisition; or use; or projecting as untainted property; or claiming as untainted property,.ASG: these activities - any process or activity is since beginning or inception, it clarifies that it includes possession.. the second part further clarifies that the process or activity continues till the person is directly or indirectly enjoying the proceeds of crime..ASG: The second clarification is process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever..ASG: Now kindly see section 19 of the PMLA (power of arrest)..ASG: The ED director or any other officer authorised has based on material possession with him has reason to believe that the person is guilty of the Act, may arrest such person..ASG: All the requirements have been fulfilled in the matter. He has shown the copy of the arrest order. I will show the arrest reasons and communication of the same to him to show officer had reasons to believe..ASG: There is a complete compliance of Section 19. Kindly see section 24..ASG: …in the case of a person charged with the offence of money-laundering under section 3, the Authority or Court shall, unless the contrary is proved, presume that such proceeds of crime are involved in money-laundering….Court: This is presumption in favour of the Agency? ASG: Yes there is reverse burden… since this is special act..ASG: Section 44 which states that offence are triable by the special courts..ASG: Offence under money laundering is separate offence. Our court has said that the offence under money laundering is an independent offence. Assuming that the predicate offence is quashed, still the offence continues under money laundering..ASG: Since it is a separate offence, it does not matter what happens under the scheduled offence. Court: This is a departure from the MCOC Act. ASG: The issue is of money laundering, hence it is wide which includes everything, projecting, concealing...Court: MCOCA has scheduled offences, without which there cannot be an offence under MCOC. ASG: that is for registering ECIR. But once the ECIR is registered, then it is for the agency to proceed for investigation..Court: Which is why explanation is there in PMLA. In MCOC, chargesheet filed, and unless cognizance is not taken, no offence is made out..ASG: Where a public prosecutor opposes the application for bail, and the court is satisfied that there are reasonable grounds of believing that he is not guilty of the offence.. these conditions under 45(1) and 45(2) are in addition to what is in CrPC..ASG: There was an issue about the twin conditions - but that has been clarified by our Court that the conditions apply. Court: But he is not seeking bail. ASG: The relief sought is in the nature of bail. Court: 45(2) will have to be considered while considering the prayer?.ASG: Yes but this is without prejudice to my contention that the petition of habeas corpus is not maintainable...ASG: Now kindly see Section 48 and 50 of the Act..ASG shows the judgment passed by Bombay High Court in Anil Deshmukh’s case..Court: It is right that economic offences are serious offences and we will have to be dealt accordingly and they are a threat to the nation and economic and financial offences are serious. It is not in dispute..ASG: I am only showing the intention of the legislature. What are the requirements of 19 and scheme of the things. Court: We are not curtailing you, PMLA offences are serious, there is no dispute. This is an important matter and you are appearing for agency..ASG: As far as scheme of Act is concerned, my submission is, the act has its own offence under 3 & 4..ASG: Once it is an independent offence rigors of 45 apply. Offence of money laundering is applied from Section 3. Criminal activity relating to the scheduled offence, that is the offence. Section 4 is a separate offence, its own authority..ASG: With this background, kindly see the prayers in the petition..ASG: The first prayer is a prayer for Habeas corpus and to release..ASG: The second is to quash ECIR. ECIR is a private document for internal purpose. So there is no question of quashing ECIR, it does not flow from a statute, so the quashing from court does not arise..Court: ECIR is not document flowing of statute, is there a judgment? ASG: There is DB judgment of Charu Mehta. Court: Not reported? Such an important issue?.ASG: There is another judgement of our High Court in Anandrao Adsul..Court: This is not challenged in Supreme Court? ASG: The issue is on whether ED should register FIR like normal police. Not on the specific point as to whether ECIR is public document or not..Court: Even a scheduled offence can be tried by special court? The chargesheet may be filed for scheduled offence in a different court, and the prosecution complaint would be filed in a different court… ASG: The trial by can be clubbed on special request….ASG: prayer clause (b) - no writ can be issued for quashing. No writ can be issued as against a pvt document. Prayer clause (c) - is to set aside summons..ASG: Feb 23 summons has become infructuous. He appeared, there has been an arrest. So that is infructuous..Court: You can issue summons to witness also right? ASG: Yes, against any person..ASG: Now the Court may take the prayer for habeas corpus..Court: What we would like to do? You may make your submission for habeas corpus, interim relief and release. Remand application and all is under challenge. The later part of (c) is at later stage. Arrest is illegal, or otherwise we will hear later..Court: We will hear interim relief and maintainability of the petition. Now you are on habeas corpus? ASG: Yes. my learned relied on the case of Gautam Navlakha… ASG reads the judgment..ASG: Mechanical or absolute illegal order of remand - that was under consideration in Navalakha. In the present case, let us see if the order was mechanical..ASG: The order under remand I will read to show that it was not mechanical or absolutely illegal. .ASG is reading the remand order of February 23, 2022. .ASG: Now where is.. can this order be mechanical or routine or absolutely illegal? If this falls under illegal, then all other remand orders will be challenged under habeas corpus!.ASG: The offence of money laundering is made out, it is continuous. Where the question of going back? There is a finding. There is a valid arrest. Where is the question of section 19 not followed?.ASG: I am satisfied that the accused is involved in money laundering - he has recorded..ASG: Just because you do not agree with an order of the Judge does not make an order mechanical. Matter was argued at length for hours. It is not like he did not hear. He heard till 9 PM. He heard statements of witnesses..ASG: After application of mind on that he is saying I am convinced of probability if involvement and that money laundering is made out..ASG: Once he says it is continuing offence there is no question of going back. All submissions and contentions have been considered. .ASG: Just because you do not agree does not make this order illegal. It will be embarrassing for the sessions judge to come here and say that he has applied his mind..ASG: How does my learned friends case fall under Gautam Navlakha. Our Courts have also time and again cited on habeas corpus..ASG is reading judgement in the case of Chhagan Bhujbal..ASG: My reliance on Chhagan Bhujbal was to show the observation of the court on what type of cases the writ of habeas will lie - Unless the remand is absolutely wrong and illegal, habeas need not be granted..ASG reads another judgement - Even here the court has held that even if the order is mechanical, habeas will not lie..ASG: relying on Gautam Navlakha, the argument was that the order impugned can be an order which is absolutely illegal. You may agree or disagree with the reasons. But, each contention has been read and finding given..ASG: I will place on record the entire file, the same will be handed over to the Court. Court: Whatever material is in the remand order, can be shown to the Court..Desai: I have only argued, not a word on facts. But this attempt to place material on record. ASG: I have not interrupted my friend… I have only cited judgments… You are challenging the order, so there is material recorded there..Desai: I have challenged the order on law. i have only said the order has been challenged on constitutional grounds. Court: You are saying that the offences were before 2005… Desai: Yes but I am saying that to argue that there is no predicate offence..ASG: With this argument, we will have to see what was before the judge. Desai: The remand was before the Court. There was no file. Court: Was the judge given this file? ASG: Yes. Desai: I was in Court till 7 pm or so, and then I left….ASG: When I am saying, I am saying with responsibility. My submission is this - that habeas corpus has to go..ASG: Without prejudice.. on continuing offence.. kindly see Section 3 again..ASG: Money laundering is a continuing offence. We are not looking at the vires today. We are just looking at the statute as it is. Today the section as it stands..ASG: How can the relief be claimed contrary to the provisions of the Act..ASG: As far as the amendment or addition is concerned and what we@say - as clarification - it clarifies as to what the provision intended since inception. The clarification has to be read..ASG: Or has to be given effect as it stood earlier. The wording of the explanation says, process or activity..ASG: Why we say continuing offence - because section 3 by its nature is a continuing offence..ASG: Laundering requires layering, multi-layering. it is not that an offence is committed once and it ends. the scheme also says it is an independent offence..Court: Can you submit to us any judgment that says money laundering is a continuing offence? Also show us how there is compliance with Section 19..Desai: The argument today was about legal violation. It is not on merits. Court: Yes so whatever compliance is required by the authorities, has to be shown to have been done.Desai: There are three aspects - one is arrest memo.. Court: that there has to be recording of the reasons and the satisfaction on the reasons. Desai: Yes, that has to be there in the order..Court: Section 19 has not been amended? Desai: No, but it is draconian in nature, so the threshold for exercising power has to be higher. Which is why they said guilty..Court: Can we day that under the garb of investigation, the personal liberty of a person cannot be taken away?.Desai: There have been submissions to this effect in the Supreme Court as well..ASG continues with his submissions..ASG: There are other two judgments - of two different high courts. Both under PMLA..ASG: It was always intended that offences under sec 3 were to be continuing offences..ASG submits a note of the finance ministry containing arguments when the explanation was added in the Section 3. .Court: We take your submission that the basic thing was there in the Act..ASG: The next point is on arrest..ASG: There are two judgments on retrospective aspect. They deal squarely with possession..ASG is reading a judgment where a person was in possession of contraband prior to coming in force of NDPS. And because the possession continued, there was offence after NDPS Act was brought in. .ASG: The last submission, as far as arrest is concerned - on interim relief. That does not arise in this case..ASG: Kindly see judgment in Navlakha. Court: What it is observed is that twin conditions need to be observed for bail matters also? ASG: I am only pointing out.. He submits the file which contain grounds of arrest..Court: You just show us how there is compliance of Sec 19. Was the reasons given to him? ASG: The reasons need not be given. He was communicated about it..Court: There are reasons recorded, and there are reasons given. But that has to be told to him. The arrest warrant has to reflect these grounds..ASG: He has been informed about the ground of arrest, and he has even acknowledged the same. Court: To his son? Please read the endorsement. ASG: I informed ground of arrest to his son. Not only him but his son also knows about the arrest..Court: Do you have original copy of the letter? There is something here which is not readable. There is signature of assistant director and the copy is not readable..ASG: our courts have also held that the grounds of arrest have to be informed. It is never about the grounds being given to them. Court: You need to show us that all compliances have been done..ASG: I will place on record the original arrest memo. But kindly record my submission..ASG reads from memo “I have been informed about grounds of my arrest”.. Court: Why does it not reflect in our copy? It is a photocopy. Desai: That is because they take endorsement on their copy, Not the copy which is given to is. Their copy is annexed to the affidavit..ASG: Arrest order is in compliance of the PMLA rules dealing with arrest..ASG: I will place the memo. Court is rising for lunch. To continue post lunch from 2.30 PM. Court: How much time will you need? ASG: I will finish in 10-15 mins..Desai: I will take some time. Court: Try and finish in 15 mins. Desai: I will and make my arguments concise..Hearing commences. .ASG is continuing his submissions..ASG: I want to point out from the arrest order. He has been informed of the grounds of arrest. Below are his signatures, twice he has signed and right hand side are his son’s signatures..ASG: Kindly see two paragraphs from the case of Chhagan Bhujbal. .ASG: The point which I want to make is - for the purpose of compliance, the arrest has to be by an authorized officer. The reason to believe is recorded in writing. That is the compliance.ASG: The grounds have been informed to him, which has been recorded in the order as well..ASG: It is not their case that they have not been informed. So there is full compliance of section 19..ASG: now I will just distinguish the cases my learned friend has cited. Tech Mahindra and Arun Mishra..ASG states the judgments pertained to the commission of offence and possession was not in question..ASG pointed out the order of the alternate bench of Justice SB Shukre which recorded that the contentions in the writ will remain unaffected by the subsequent remands..ASG: Ultimately what the court is considering is grant of bail. In habeas corpus also the Court is considering interim bail. Once that comes in, then twin conditions and rigors of section 45 will apply..ASG: Whatever I have argued, other than for prayer for habeas corpus are without prejudice arguments. I am still submitting that the petition is not maintainable as the remand order is not mechanical..ASG has concluded his submissions. .Court has taken up another case which was urgently mentioned. Court: There was urgency in that, let us just check that first. We will hear you after that..Hearing on Malik’s plea may continue post this matter. Counsel are waiting in Court..Before Desai begins, the Court is giving dates to matters in which FIRs are to be quashed by consent..Court: Mr. Desai we will hear you tomorrow now. We have some administrative work also. Tomorrow at 10 AM.

Bombay High Court hears Nawab Malik Habeas Corpus plea: LIVE UPDATES

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