The Bombay high court on Tuesday rejected Maharashtra minister Nawab Malik’s interim application seeking that he be released from judicial custody immediately, in an alleged money-laundering case related to fugitive gangster Dawood Ibrahim.
Malik had filed a habeas corpus (produce person in court) petition challenging his ‘illegal’ arrest by the Enforcement Directorate (ED). Pending hearing in the petition, he had sought immediate release in the interim.
A division bench of justices P B Varale and S M Modak, while dismissing the interim plea, said in its 47-page order, that the minister had raised certain ‘debatable issues’ in the petition, and “these issues are required to be heard at length”.
The court further noted that merely because the special PMLA court’s order remanding Malik in custody in the case was not in favour of the minister did not make such an order illegal or wrong. Malik had access to the best possible legal representation and his counsel had vehemently opposed the ED’s request for custody. Yet, the special court had remanded him in the ED’s custody and subsequently, in judicial custody, based on valid legal grounds.
“There is also merit in the submissions of the learned ASG (additional solicitor general, appearing for the ED) that merely because learned Special Court granted the custody of Petitioner (Malik) would not make that order illegal ipso facto because the Petitioner is aggrieved,” observed the HC.
The court also agreed with ASG’s arguments that Malik had a remedy for “raising his grievance against arrest” and that he had the option to file a bail application before the special court.
The bench held that Malik had been arrested by the ED in accordance with the law, and had subsequently been remanded in the ED’s custody, and then in 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.
Referring to the chain of incidents, the court noted that Malik had gone to the ED office for questioning on February 23, in response to the summons by the investigating agency. He was then issued an arrest order and taken into custody by the ED. He 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 i.e., the Special Court,” HC said. “And secondly, merely because the order is against the petitioner it cannot be termed as patently illegal,” it said.
The court refused to interfere at this stage, observing that the “investigation is initiated recently and at this initial stage” and that the HC is “not expected to assess evidence” and “record any finding” in respect of material collected by the ED, as it is “in the process of investigation”.
“Such an observation would not only be premature but it may also adversely affect the rights and contentions of the petitioner himself, who is an accused,” it added.
Malik was arrested by the ED on February 23 for allegedly hatching a criminal conspiracy to usurp one Munira Plumber’s ancestral property in Kurla having current market value of around Rs 300 crore. After 13 days of being in ED custody, he is currently in judicial custody
