HC rejects Maha minister Nawab Malik’s interim plea for release, says spl court’s custody order can’t be termed illegal

PTI, Mar 15, 2022, 4:04 PM IST

Mumbai: The Bombay High Court on Tuesday rejected Maharashtra cabinet minister and NCP leader Nawab Malik’s interim application seeking immediate release in a case of money laundering, saying just because the special PMLA court’s order remanding him in custody is not in his favour, it does not make that order illegal or wrong. A bench of Justices P B Varale and S M Modak also said in its order that Malik had access to legal representation, both before the special court and the high court. After the Enforcement Directorate arrested Malik last month under provisions of the Prevention of Money Laundering Act (PMLA), he had filed a habeas corpus plea in the HC, claiming that his arrest by the ED and the consequent remands were illegal.

The HC said Malik’s counsel had argued before the PMLA court and vehemently opposed the ED’s request for the minister’s custody. Yet, the special court had remanded him to ED’s custody and subsequently to judicial custody based on valid legal grounds.

”There is also merit in the submissions of the Additional Solicitor General (ASG) that merely because the special court granted the custody of petitioner (Malik) would not make that order illegal ipso facto because the petitioner is aggrieved,” the HC said. ”The ASG was also justified in submitting before this court that the order passed by the special judge granting custody of the petitioner would not make him remediless for raising his grievance against arrest,” it said.

The HC said the minister still had the option to apply for bail in the case before the special court. The bench held that Malik was arrested by the ED in accordance with the law, and subsequently been remanded to the probe agency’s custody and then to judicial custody following due process. Therefore, there was no reason for the high court to pass any interim order directing Malik’s release from custody, it said.

It noted that Malik had gone to the ED’s office for questioning on February, 23, the day he was arrested, in response to previous summons issued to him by the central agency. He was then issued an arrest order and taken into custody by the ED, the HC said.

The court also said that arguments made by Malik’s senior counsel Amit Desai and ED’s counsel ASG Anil Singh showed that due process was followed. The arguments showed that Malik had clearly been made aware of the grounds of his arrest.

”In the present case, there is no dispute on the factual aspect that custody order is passed by the competent court of jurisdiction- the special court,” the HC said. ”And secondly, merely because the order is against the petitioner, it cannot be termed as patently illegal,” the court said.

Malik was arrested by the ED over a property deal allegedly linked to the aides of gangster Dawood Ibrahim. Soon after his arrest, the minister filed a habeas corpus plea in the HC, challenging his arrest and the remand orders. As an interim prayer, he had sought that he be released from custody immediately.

However, the HC on Tuesday said Malik’s petition had raised some debatable issues and the court needed to hear at length the arguments from both sides before passing any final orders.

The ED’s counsels, ASG Anil Singh and Hiten Venegaonkar, had argued that Malik was arrested following due process under the law. The central agency has accused Malik of being part of an alleged criminal conspiracy to usurp a property in Mumbai’s Kurla area which currently has a market value of Rs 300 crore and belongs rightfully to one Munira Plumber.

Malik contended before the HC that he had bought the property in a bonafide transaction three decades ago, and Plumber has now changed her mind about the transaction.

The ED’s counsels said the probe agency had adequate evidence and eyewitness accounts to prove that Malik conspired to purchase the property illegally. The probe agency had further contended that a habeas corpus plea in the present case was not maintainable and Malik should seek bail instead.

The bench held in its order that the ED’s investigation was in the initial stages and it would not be proper to get into the details of its probe and the evidence on record.

Advocate Desai had also cited the retrospective application of some provisions of the PMLA in the case. But, the HC held that those provisions of the Act were not challenged in the petition, so it need not dwell upon the issue.

”Considering all the above-referred grounds, we are not inclined to allow the prayers in the said application. Resultantly, the interim applications are rejected,” the HC said.