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

The Bombay High Court will continue hearing, for the third third day in a row, 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, the ED argued that the order remanding the Cabinet Minister to ED custody was not mechanical or illegal, and hence the Habeas Corpus petition filed by him was not maintainable.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..Senior Advocate Amit Desai: I am re-emphasizing the interim relief. There is prima facie case for prayer clause (a) and the interim relief..Desai: The judgments he has submitted do not really affect the habeas corpus. Lordships should have a look at the judgments. The habeas corpus there was filed at such a late stage. .Desai: Once there is a judicial order, then writ of habeas corpus does not lie. Did I concede in subsequent remands? No, we filed applications stating that remands are contrary to law..Desai: Now I will make comments orally. Lordships may bear in mind - mechanical, illegal and cavalier. Navlakha does not have cavalier, which is higher non-application of mind..Desai: This is order under 167 - which is judicial order. That test is not present in Navlakha. .Desai: The question of complete code (PMLA) - subsequent to this judgment - SC in another matter has held in Ashok Munilal Jain, default bail under 167 applies to Section 45 to PMLA..Desai: Then the question to be considered is prima facie, there is 7-8 pages of order. So much has been said in the order and hence it cannot be mechanical, ASG said..Desai: But if the order does not consider the relevant facts and law on the subject, and in the context of the Navlakha principle..Court: Can we take that the order is descriptive but fails to show application of mind? Desai: Yes otherwise there will lots of orders and then there is no need for anyone to come here..Desai: The argument for maintainability cannot be that because there are 8-10 pages there is no mechanical order passed and hence the challenge does not exist..Desai: I do not know how serious the argument was, but since it was made - power of 45(II) of PMLA under 226 and 32. There are no fetters under the 226 or 32 because those are meant for enforcement of part 3 rights..Desai: When it comes to that, 226 is that saviour in that legislative scheme, and to now say that the saviour ought to be shackled is contrary to settled law..Desai: The law is well-settled that there is self-restraint, but 226 is responsibility of court where legislature cannot create restraints..Desai: I do not want to put any more judgments. The other aspect was - the speech by the finance minister and that these amendments are clarificatory in nature..Desai: That speech, as ASG argued, was of 2019 by which explanation was added..Desai: At this early stage, I am only saying that the speech only sought to clarify that the body of the section proposed to introduce the process or deed leading to the actual act of use, or projecting..Desai: So what ambiguity arose made it a debate as to whether it was disjunctive or conjunctive. But with the word “or” what happened was that it was made disjunctive..Desai: If you amend the section and create rights, then those are prospective. It can never be retrospective..Desai: When it is in the same form and not untainted (drugs, weapons, money) then the primary legislation is equipped to deal with the same..Desai: But in case of money laundering there is tainted money, there is a predicate offence required first..Desai: That primary offence may be committed by someone else and then laundering by a different person. But what is essential is that the person knows that the money is tainted..Desai: When we deal with the concept of possession and we say it is continuous, we should look at what is the item that is in possession. Eg. Narcotics, etc. It is a banned substance and if someone is in possession then it could be a problem..Desai: If a person is found in possession of RDX then the nature of substance is that no one can say that you can't be charged under the explosives act..Desai: When you are dealing with property of commerce, a jewellery, shares, bank, property then the nature of it will be different..Desai: The reasons to believe must be communicated to enable to contest the belief. Court: You have sufficiently canvassed your point. .Desai: There are three persons - one who commits the theft, one who commits the laundering and one of possession. The scheme of the law is that the proceeds of crime be confiscated. And the owner can claim he has legally purchased the property, then the property can be released..Desai: Ipso facto possession of property does not mean commission of crime under Section 3..Desai: My humble submission is your lordships are in possession - brahmashastra of judiciary - habeas corpus- the most powerful weapon to uphold someone’s liberty. .Desai: What I am saying is that the personal liberty of a man should not be taken away in the circumstances of the case..ASG: There are three aspects - there has to be laundering, knowledge of laundering and possession. The laundering and possession has taken place in this case..ASG: The Navlakha judgment but what has to be seen is whether the order is mechanical, and illegal, or not..ASG: Process and activity is there - then projection and possession is not part of that activity. Entire submission is that retrospective, continuing offence are without prejudice to my contention on maintainability of the plea..ASG: With this I conclude, I do not want to take any more time of the Court..Court: Mr. Singh, these are occasions where we also get opportunity to brush up our knowledge and scope of act..Court will pronounce the order shortly. It is yet to preside..Bench has presided. Court: We will pronounce order on interim bail on Tuesday.

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

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