Bombay High Court says health condition of Nawab Malik serious; agrees to hear bail plea on merits

The Bombay High Court on Friday agreed that medical condition of undertrial Nationalist Congress Party (NCP) is serious and, therefore, agreed to hear his plea for bail next week..Justice MS Karnik had in an earlier hearing asked Malik and the Enforcement Directorate (ED) to explain if Malik could be considered a “sick person” under the provisions of the Prevention of Money Laundering Act (PMLA), for the purpose of deciding his bail plea in a money laundering case.After short arguments by Malik’s counsel, Justice Karnik agreed that Malik is suffering from serious medical issues, and agreed to hear the plea for bail on merits starting next week.“I am taking that he is suffering from serious medical condition. We will hear this matter on merits from next week,” the Court said..Before agreeing to hear the plea on merits, Justice Karnik was of the opinion that the Court must first be satisfied about the medical condition of Malik in order to determine whether or not urgent hearing is required. .Senior Advocate Amit Desai and advocate Kushal Mor argued that Malik had been in custody for over a year. He has severe kidney problems and had lost one kidney and the other kidney on which he is surviving is also weak, it was submitted.“It takes 2-3 weeks for permissions from courts for tests, that is not how it should work,” Desai said.He pointed out the exception under Section 45 of PMLA which provides that in cases where the Court is satisfied that the accused is under 16 years of age or is a woman or is sick or infirm, the Court may grant bail even for non-bailable offences under PMLA.Desai pointed out that the legislature had carved out exceptions which were required to be considered. “If the investigation is over, and if the court finds that the accused is no longer required, then the larger principles of bail will kick in. Then the offence, the circumstances and the provisos will all have to be considered. what needs to be seen is that the accused is available for trial. The balancing will have to be done” Desai said.Desai also contended that in order to secure presence of the accused for trial, it is not necessary to burden the public treasury. “If there is no necessity for a man in custody, and the primary object is to secure his presence in trial, then why burden the public treasury? His (Malik) bed (in a hospital run by State) can be used by someone else. He (Malik) can look after himself. Do not burden government unnecessarily if the man can look after himself,” Desai argued..The judge was then satisfied about the medical condition, but also asked Malik to not only satisfy the Court on merits of the case, but also argue on the twin conditions under Section 45 of PMLA in the factual context of his case..The ED had arrested Malik on allegations that he had purchased certain property at a rate lower than market value.After the Special PMLA Court took cognizance of the chargesheet in May 2022, Malik filed for regular bail.Malik moved High Court after a Mumbai special court had rejected his bail plea in the matter on November 30.In his plea, filed through Rashmikant & Partners, Malik stated that the Special Court had failed to take into consideration the observations made by the High Court in its order granting bail to former Maharashtra Home Minister, Anil Deshmukh.Malik also claimed that the Special Court had erred in disregarding Malik's medical condition.On December 13, 2022, the High Court had refused to grant urgent hearing after noting that Malik had been admitted to a private hospital and was receiving treatment.