Bombay High Court seeks ED’s reply by March 7 to Nawab Malik’s plea against “illegal” arrest

The court in its order noted, “Any subsequent remand if granted, the same shall be without prejudice to rights and contentions of both parties.”

With this, Malik can argue his habeas corpus plea even if he is further remanded by the special court, which is going to hear the ED’s remand plea on Thursday.

A division bench comprising Justice Sunil B Shukre and Justice Govinda A Sanap was hearing Malik’s plea. The bench, which had taken up the matter as a regular bench was not available, said that it was deferring the case so that it can be heard by a regular bench.

Malik was arrested by the ED on February 23 and later a special court remanded him in the central agency’s custody till March 3.

Malik on Monday filed a habeas corpus (produce the person before court) plea in the high court, claiming that his arrest was “illegal”, with “political vendetta” and without following the due process under the Criminal Procedure Code (CrPC).

Malik claimed that the ED had taken action against him for being a “vocal critique of misuse of central agencies” since 2020. He also sought to quash and set aside the Enforcement Case Information Report (ECIR) in the case. The NCP leader also challenged the remand order and said that a “lengthy” and “obscure” remand plea was filed by the central agency to “obfuscate the real issue” and to try and mislead the special Prevention of Money Laundering Act (PMLA) court judge.

The plea claimed that the special judge failed to consider the fact that the PMLA Act, which came into force in 2013, was applied retrospectively to offences that were alleged to have been committed over 20 years ago.

Malik claimed the ED application revealed that it was a “mere sale purchase transaction of the property in question in Kurla for due consideration” and the central agency could not make out any case or offence against him. He added that the special court order of February 23 of remanding him was without jurisdiction and passed without any power.

The petitioner added that the said order was in breach of his “statutory rights” under Section 41A of the CrPC, which mandates the investigating officer to issue a notice of appearance before the arrest, as well as in violation of provisions of the PMLA Act.

Senior advocate Amit Desai and advocates Taraq Sayed and Kushal Mor argued that Malik has been arrested in connection to two sets of transactions with which he was not involved. Desai said that while the ED recorded statements of certain persons connected with Dawood Ibrahim, many of them have not mentioned Malik’s name.

Additional Solicitor General Anil Singh for the ED sought time to reply, to which, Desai said that the matter can be decided without any reply since the accused had been arrested for the transactions he was not concerned with and his fundamental rights were infringed through “illegal arrest” and subsequent remand by the trial court.

The bench, however, said the ED’s reply was required in the case and granted the central agency time to file its affidavit in reply till the next hearing on March 7.