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

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 told the Court that he has been arrested by the ED for a transaction which was 22 years old and the arrest was by retrospective application of provisions of the Prevention of Money Laundering Act (PMLA).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: PMLA is at nascent stage and is being argued at Supreme Court. But let me show the observations made.. a few to facilitate the court..Desai: This is Andhra High court judgement, the judgement of Satyam also became folklore. This is when another company was asked to take over. Mahindra and Mahindra had taken over and PMLA launched a prosecution against tech mahindra for period 2001 and 2008..Court: It is in this context that the high court observed about retrospective date. Desai reads. Court: So offences under IPC were also included in schedule of PMLA in 2009. Desai: part A and Part B had some offences and offences kept getting added to it..Desai: See another judgment of Delhi High Court of Arup Kumar Mishra..Desai submits that for an offence to be a predicate offence under Section 3, it has to be mentioned under the schedule of the PMLA. However the offence allegedly committed was not included in the schedule of PMLA, hence it could not be predicate offence..Desai: Now see case of P Chidambaram case. Para 41 and 42..Desai: Now I will go beyond PMLA. This is the judgment under MCOCA..Desai from judgment: Section 3 cannot be invoked till all ingredients to fulfill that section are brought in. The agency may not know the time of the offence when offence was committed, but date of knowledge of the offence cannot be considered..Desai: Then please see this judgment which is a case of possession..Desai: ED argument was that the possession continues till today and the learned special judge held that there is continuing possession. I am saying possession was not an ingredient in 2005. It came in 2013..Desai: Now let us see a judgment of this Court. The question was about the quashing and that is one of the final questions..Desai: I am addressing on maintainability here. You cannot say orders cannot be passed under 226.. fundamental rights are being violated. .Desai (reads judgement) and then: so it means every second I am continuing in laundering, I will continue to remain in jail… this is what will happen..Desai: I acquired a property in 2003 and 2005. The acquisition is complete, the consequence is that I am in possession in 2022. It will have horrific consequences if it is held that continuing offence...Desai: The time there is no PMLA, 20-30 years later an offence becomes part of the schedule and then it will be predicate offence. It was a bonafide purchase and without there being suit for title…..Desai: The consequence of a construct of this type.. it is continuing offence because possession is there..Deaai: Protection in a draconian legislation is the court - FiR, then chargesheet, then cognizance. While taking cognizance the Court acted as a filter. A continuing offence was when the fine continued contravention which continued everyday.. some acts have that..Desai: In section 3, there is a completed act, there is nothing like that. Act of possession was complete with indenture of sale. That day, the act of possession was complete. The consequence of the act is ownership which continues till date..Desai: In some of these offences there may not be a period of limitation. There are some serious crimes where the state or agency may discover after 10-15 years, some witness turns up, some evidence.. there is nothing to stop them. .Desai: But that does not mean that it is continuing. Criminal law is about knowledge. But that will not continuing..Desai: 40-50% of the remand applications includes facts which is like a cloud.. (reads from judgment) writ court cannot be a silent spectator to the illegalities of the agencies….Desai: Which is why I read this judgment.. Court: finally we come back to our institution only….Court referring to the judgment read by Desai.: As far as this case is concerned that all incidents continued till February 24, 1999 and what continued was the malpractice and that could not be considered as continuing..? Desai: Yes, I am grateful to the Court..Desai: Please see Bharat Shah’s judgement..Desai: Now I will deal with power of Courts to grant interim reliefs...Desai: There is a case of habeas corpus and there was a question of habeas corpus which was considered. There were several remands which happened..Desai: Whether a writ of habeas corpus relies upon remand to police or judicial custody was considered..Desai: Interim is not the final, if the plea is dismissed, the person can go back in custody. We were asked to come before the regular bench hence the without prejudice order..Desai: In PMLA courts have granted interim and released persons when hearing questions of law..Desai: Even on the reading of their own facts from the affidavit, there is no offence..Court: Schedule existing on which date is important. Desai: It is as per when offence is mentioned in the schedule. Section 3 should be in the book, scheduled offence should also be there. It will apply prospectively..Desai: In this case, did the extortion happen post or prior to 2005? 2019, they say there are many FIRs by Mumbai Police, but no details. ECIR of 2022, even till today there are no particulars of predicate offence..Desai: As an accused at this stage I cannot show material, so I am going by remand, but those include only allegations. And who? By the henchmen of the gang. Munira on her own shows that she was associated with them..Desai: Son of Haseena Parker says property is sold based on power of attorney. 22 yrs later someone comes and says there is no PoA, so I am put in jail?.Desai: The indenture under which property is purchased is there. Take the second document and then third. The consideration in third document is ₹25 lakhs. Even in their affidavit.. Court: Purchaser is the company.. Desai: Yes the company, and that is by family of Malik..Desai: They are saying there are separate causes of actions in their affidavit… Court: Mr. Desai, you reserve some energy for the final arguments… Desai: Okay let us skip this..Desai cites Arnab Goswami judgment of the Supreme Court. Desai: I appeared for State, it went from High Court to Supreme Court..Desai: One of the arguments was that this is an indirect way of getting bail..Desai: In that matter they gave up the habeas corpus issue..Desai: Interim relief, because there is substantial question involved. The writ may be listed on any date for final hearing. But he has already spent 16 days in prison, in a matter which involves his rights..Court: Okay, we will hear you tomorrow Mr. Singh at 10 AM.

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

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