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

The Bombay High Court will hear 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.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 him to ED custody reasoned that sufficient time would be required to investigate proceeds of crime which traversed over the last 20 years.The special judge today morning sent Malik to judicial custody till March 21.Read live updates from Bombay High Court below..ASG tenders copy of reply..ASG: Before he starts, I am raising issue of maintainability. This habeas corpus petition..Sr Adv Amit Desai: I want to open my submission. ASG Anil Singh: I have to place this point forward.. If I am saying that there is issue of maintainability. If I can convince the court that the petition is not maintainable, then how can he begin on merits..Court: We will hear you both.. Desai: That faith we have in the Court..Court: Please give preliminary facts. Desai: I am not arguing finally. This is first hearing. I am asking for interim relief..Desai: This is a matter where, I don’t, I know the contours of the scope of the proceedings...Desai: This petition, has been filed, as can be seen from prayers. Writ of Habeas corpus, nature of certiorari to quash ECIr against Malik, and summons and declare the arrest as illegal..Desai: To forthwith release Malik from illegal custody. These facts are not into merits.. The petition is to challenge arrest and custody..Desai: How the issue of art 14, 20 and 21 arose.. Feb 23, 2022 he was placed under arrest by ED. In what context he was under arrest is elaborated in the remand. I do not propose to go on facts of the case..Court: Before you proceed, you have placed on record orders. We have arrest order.. Taking this as first point - the starter point… Desai reads arrest order..Desai: In this arrest memo apart from reproducing section 19 of PMLA, which is a section reproduced..Desai: “Reason to believe” is language.. “found to be guilty” … is all mentioned. There is a remand application which sets out many things..Desai: There is a detailed remand application filed. Many things are said, that is not… Court: Quite descriptive, it goes to 10 pages. Desai: And it mentions names I have nothing to do..Desai: There are Nia accused with whom I have nothing to do. PMLA is always triggered by predicate offence..Desai: NIA registered some Fir on Feb 3, against Dawood Kaskar..Desai: But it is feb 3 which is the starting spot for NIA. To commence investigation against them, an ECIR was registered on Feb 14. They referred to two other FIRs with predicate offence with which I am not concerned..Desai: Then there are yet other FIRs, with which I am not concerned..Court: So, nowhere are you concerned? Desai: I am only saying that there no is predicate offence with which I am concerned. Then there is an old FIR. Then there is an ECIR which they claim are based on Mumbai FiRs but no details are given..Desai: Two prosecution complaints have been filed and there has been attachment, but I am not concerned..Desai: There is some FIR and some chargesheet of THane with which I am not concerned..Desai: Para 13 - is where they start about investigation, they talk about searches of other people. Then a statement of one gentleman some relative of Chhota Shakeel. And he refers to several people, who aid in activities..Desai: Not concerned. Again Para 14 - not concerned with them. They are all in jail. Undertrials.. they have all been usurping properties. Against 15 no connection..Desai: In statement of Haseena Parker’s son’s statement there is mention of Malik. Court: Dates are not there? Desai: but this seems during the Feb 14 ECIR when the investigation began..Desai: Iqbal Kaskar was arrested on Feb 18 by ED. ASG states he was arrested in another ECIR..SPP Hiten Vanagaonkar: Kaskar was arrested in another ECIR of 2017, but then all the earlier ECIRs were merged together..ASG: There are three ECIRs that have been merged..Desai: What they are telling us that all old ECIRs are merged for comprehensive investigation probably because of overlaps of the persons and multiple conspiracies or conspiracy. There may be joinder and misjoinder of charges..Desai: In one of the ECIRs, prosecution complaint has been filed. cognizance has been taken and now it is probably listed for charges. Court: What we understand is that all ECIRs are merged. Where is the new ECIR number?.Desai: There is one of 2022 mentioned.. no wait, I have been told that there are separate Numbers but then they are only combined here for investigation..Venegaokar: There are several cases against Dawood Ibrahim, hence there is one against him, but then there are ECIRs against Iqbal Mirchi, Iqbal Kaskar but for investigation they are merged..Venegaokar: They are being investigated to investigate common tranches, and transactions, common properties. The complaints will be against each individual separately, but then since they are all part of the same gang, they are being investigated together..ASG: There is no merging of ECIR. There is only investigation together for convenience. Desai: Anyway I am not concerned of that. Wish them luck, but then why is Malik bearing the consequences of such merging and no -merging..Desai: Then they go and record statements of various persons. They are not credible, they are all gangsters. mr. Malik has been in public service for more than 25 years..Desai: Haseena Parker is important here, because she is Dawood Ibrahim’s sister..Desai: There is one Munira Plumber who is supposed to be one of the victim. The property value is ₹3 crores.. Court: But it is ₹300 crores. ASG: The property was of ₹3 crore but now the property is worth ₹300 crore..Desai: The allegation is that Malik usurped the property, but keep in mind the property is not in the name of Malik..Desai: She (Munira) gives details of Solidus and she is the owner of the property. And during investigation it was revealed that she never interacted with Malik, never met with him. She was in touch with one Salim Patel who was with Parker..Desai: Munira in 2022 says that her property has been sold. She has admitted to have an association with the Haseena Parker group, on her own admission..Desai: Her case is she is owner of Goanwala compound, there is tenancy with Solidus. she says that in March 1999 she gave PoA to Haseena Parker’s driver. The authorization was never to sell the property..Desai: She is not saying she did not receive any consideration under the agreement. There is one PoA..Desai: Her position is that she never executed the PoA, so the transfer of tenancy was never valid..Court: How is petitioner connected t Solidus? Desai: One Kanubhai Patel sold his shares to the family members of Malik. Court: So earlier shareholders transferred the shares? Desai: Yes and so now Malik’s family members are the shareholders..Desai: What we have in the remand are transactions of Malik family, July 2003, September 2005. These are 20 year old transactions...Desai: The question to be considered for Milords is with a gentleman’s liberty..Desai: There is invocation of PMLA under section 3 and section 19 powers. The PMLA act was notified in 2005. There was no Pmla in 1999, 2003. Can section 3 be made applicable to 1999 and 2003..Desai: Can the doctrine of retrospective and ex-post facto and be applied?.Desai: first question to be considered is: son says it is sold to Malik family, then they rely on people in jail, henchmen of Malik. Court: They are relying on Munira’s statement….Desai: She says there is a sale of property based on some newspaper report, then she says in 2022 that she never made the transaction..Desai: There was a rent collector, she did not get rent for 22 years, she forgot the property worth ₹300 crores today..Desai: Malik was not given benefit of doubt, to go back home and get details on the property transaction like an underworld accused..Desai: some person gets up after 20 yrs and says she still owns the property on oral statements despite registered documents..Desai: Should Munira not face consequences? But it is Malik who is suffering, he is behind bars for the last 15 days without being given an opportunity to give an explanation. The misuse of the power goes to the jurisdiction for exercise of power..Desai: There are provisions for attachment of property, not arrest of Malik. Only the one who commits money laundering.. but not the innocent third party. What happened was between Munira and Patel, Malik is a victim..Desai: 22 yrs later I am in jail for 14 days. Court: so you are saying remedy is attachment? Desai: no there are provisions to be considered under PMLA. if there is no commission of offence, how can there be guilt of the offence!.Court: What are the ingredients of Section 3? Desai: I will show that. I will also show the provisions from MCOCA because provisions are similar..Desai: section 3(1) of the MCOCA, kindly see..Desai: proceeds of crime has been defined. “any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property”.Court: So criminal activity has to be defined under one of the schedules. Desai: Yes it is given. But section 3 must be prevalent, you cannot have proceeds without laundering..Desai: The terrorist acts were not part of the PMLA schedules. I think it is because those acts had provisions already in place. But now PMLA has been amended, and then there is UAPA is also added..Desai: Flip through the remand application please, there is no provision of PMLA invoked. Court: So what is the offence invoked apart from Section 3? What is the criminal activity? Are there IPC offences added?.Court: In MCOCA there is a chargesheet. But like is there some offence? Desai: We don’t know the transactions, in this remand there are some FIRs mentioned..Court: What is an ECIR? ASG: It is an internal document for our convenience. There is debate going on whether the copy should be given. But out DB has held that copy need not be given..Desai: Just one clarification, that MCOCA - information needs to be recorded. But issues under sec 3 are different. What is that predicate offence, either 1999, 2003? Where is the indenture of sale? Even if there is an offence committed, it will be an offence under 3..Desai: Article 20 is still sacrosanct. Could Malik have been arrested under sec 3 as has been done? Some of this was also argued as objection to the remand..Desai: See the obligations in Court, as laid down, the observation that was made in Arnesh Kumar. See how arrest has to be undertaken..Desai: Your remand says your transaction is of 2003 and 2005. Allegation of laundering is I purchase property from Haseena Parker and that they say is laundering. The Judge did not consider where the committal of section 3.Desai: Otherwise anybody will be arrested and the judge will say sorry need not go into the offence and give remand because some officer has asked..Desai: I am only on the limited interim relief that is if prima facie case is made out..Desai: In the paragraph of the remand order - all the facts mentioned are of prior to 2005..Desai reads out first remand order..Desai: What the judge understood - these are acts prior to 2005, he had to look into the continuing offence.. the argument was that Malik’s family was still in possession.. this is the offence..Court: Property was in possession.. Desai: Even today. Court: That is what judge observes. Desai: He says the offence under Section 3 continues till today..Desai: This ingredients were introduced in 2013 and subsequently in 2019 explanation has been added in Section 3. An explanation can go back to 2013, but not 2005. Your ingredients have to be prospective..Desai: I am only on interim today. I am not saying a person has to be deprived of personal liberty. There is nothing in a remand application..Desai: How do you keep this person in prison to say that this person is involved in a continuous offence and hold him guilty just because Munira Plumber woke up after 20 years?.Desai: if the amendment was later and the offence is of prior than the amendment, can it be included? These are serious debatable questions on constitutional laws..Court: The constitution courts may have taken some decision. Desai: No, the arguments are still going on. Tushar Mehta is on his legs, then there will be rejoinders. And we do not know how many issues will be decided..Court: The issues you are referring to have been put up? Desai: Those Mehta has put up for ED. Once Supreme Court decides, we are all to bow down to it. But, a person’s liberty cannot be taken away because ED believes that it can be retrospectively applied..Desai: The last question of rule of law for for personal liberty is that.. ASG interjects: These questions are not put by ED, we have collected all questions from different SLPs and submitted to the Court. It is not what we have submitted and what ED wants to decide..Court (to ASG): even assuming the alleged transaction took place in 2005, you must revert back to the act. The predicate offence is of 2005, consider what the position of law was then and argue..Desai: 22 years later you pick up a man and say continuing offence. But you want to bypass 45(2) and keep the man in custody. We have all kinds of judgments on retrospective. With consistent views..Desai: I am sure Milords will be with me on this instead of them..Court: How long will you take? Desai: I have to argue on maintainability, i knew this will be their argument. Court: We will hear you tomorrow at 10 AM, finish within an hour..Desai: I do not want to burden milords with too many judgments. I have many judgments. Court: If you have 5 judgments, read 2 of the best. You are essentially seeking a stay on order..Desai: I am being candid. It is for his release. The judgment says release..ASG: What he is seeking is bail… Desai: This is a question of liberty. I wish my learned friend could come and argue from this side. This is someone’s liberty..Court: Okay, Mr. Desai, you argue tomorrow 10 -11, and then Mr. Singh, argue from 2.30 PM..ASG: I have some difficulty at 2.30. Can I come at 10 day after? Desai: We will see tomorrow..Desai’s submissions to continue tomorrow at 10 AM.

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

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