Maharashtra Cabinet Minister and NCP leader Nawab Malik has filed a special leave application with the Supreme Court asking for his immediate release in the money laundering case being investigated by the Law Enforcement Branch.
The petition stems from the order of the Bombay High Court dated March 15, 2022, denying interim release in a habeas corpus petition filed on the grounds that his arrest was “totally unlawful”, therefore challenging the order of the Special Court remanding him in custody.
The ED arrested the Minister for Minority Development on February 23 on the basis of a registered FIR against global terrorist Dawood Ibrahim, alleging “Malik’s involvement in the financing of terrorism” on the basis of a land agreement from 1999-2005 involving Dawood Ibrahim’s late sister, Haseena Parkar.
The ED alleged that Parkar and Malik usurped a property in Kurla from a plumber Munira. In 2003, Malik, through his family, purchased a company called Solidus Investments Private Limited – which was also a tenant of the affected property. He then, through Solidus, paid Parkar the money to get the ownership rights to the land in 2003 and September 2005. And since Parkar was allegedly part of the Dawood gang, the money that got him paid became proceeds of crime, the ED claimed.
While denying Malik’s request for interim measures, the HC had observed that “certain debatable matters need to be heard at length”, however, the arrest requirements under section 19 of the PMLA were met on a prima facie basis. .
Significantly, he had also observed that, prima facie, to claim that property is undefiled would amount to an offense under section 3 of the PMLA 2002.
Malik asserts that since his motion was strictly on statute, the HC could not have made a prima facie finding regarding section 3 of the PMLA without reasoning.
“The High Court, having also already found prima facie that questionable issues arose, could not then have taken a contrary prima facie opinion on section 3 of the PMLA, without any reasoning as to how, in the case present, there was a predicate offense, not to mention any offense under the PMLA against the petitioner.”
Malik claimed that the High Court, when issuing the rule, upheld this deprivation of liberty and refused to grant provisional release, in violation of the position established in Arnab Manoranjan Goswami v. State of Maharashtra (2021) 2 SCC 427 and the principles established in a writ of habeas corpus.
“The arrest being therefore unlawful and in violation of the applicant’s fundamental rights as well as of the legal provisions, he was entitled to a writ of habeas corpus.”
Malik claims his arrest was unlawful as he was picked up in the early hours without the issuance of a CrPC u/s 41A summons. “ED has sought to complete this entire exercise on the alleged strength of a transaction from over 22 years ago, at a time when PML was not on the statute books,” adds the petition.
Malik states that the FIR against Dawood, on the basis of which the ECIR is registered against him, neither the crime nor the duration was stated.
Additionally, ED’s case is based on Munira’s refusal of an additional irrevocable power of attorney dated July 23, 1999 given by her to Salim Patel (now deceased driver of Haseena) by which he was authorized to manage the property. , including transferring it.
Before that, also in March 1999, she had executed a PoA. This is the case of ED whom Malik’s family dealt with Parkar through the PoA-supported driver.
“These proxies, both original and additional, have never been challenged by the said Munira to this day. executed by her was for the limited purpose of removing encroachments upon said property and the additional power of attorney was never executed by her.”
Malik’s claims before the Supreme Court are as follows:
- 1. ED’s case is based solely on statements filed under Section 50 PMLA. The statements, in particular that of Munira Plumber, are contrary to the documents on file.
- 2.Munira denies PoA after 22 years, without initiating proceedings even after allegedly discovering the sale in 2021.
- 3.Munira was certainly in contact with Haseena Parkar and her driver Salim Patel and she had dealings with members of the D gang;
Retrospective applicability of the PMLA
The petition was purely legal. First, the alleged fraudulent transaction took place in 1999 when the powers of attorney were executed in favor of Salim Patel. In 1999, the PMLA was neither legislated nor notified and was not part of the statute books and therefore the PMLA cannot be applied retrospectively.
Even if the 2005 transaction is considered, even then the transaction would not fall within any of the offenses under Part A or Part B of the PMLA as it then existed in 2005.” Therefore , the claimant’s case was that there was no infringement when the property purchase transaction was concluded and therefore there can be no retroactive application to the 2013 as well as 2019 amendments, which would otherwise violate Part III of the Constitution of India.