Nawab Malik's PMLA Arrest Violates Doctrine Of Ex Post Facto Laws : Amit Desai Argues Before Bombay High Court

"The only people who are alleging involvement of Mr Malik are the officers (of ED), people who are in jail for the 1993 bomb blast or Munira Plumber (original owner)," Malik's counsel argued.

The bench of Justices PB Varale and SM Modak began hearing arguments in Nawab Malik's habeas corpus petition challenging his arrest by the Enforcement Directorate and seeking immediate release in the interim.

Senior Advocate Amit Desai submitted that the retrospective applicability of the PMLA was already challenged before the Supreme Court and a person's personal liberty cannot be curtailed when there are serious constitutional questions to be addressed. Desai says that the PMLA Act came into existence only in 2005 but Malik has been arrested for allegations over a 20 year old transaction.

"His arrest under section 3 of PMLA is against the doctrine of retrospectively and expost facto laws", Desai argued.

"You call it bail, I call it liberty under the realms of the constitution," Desai said in response to Additional Solicitor General's comment that Malik was essentially seeking bail in a habeas corpus petition.

Desai will continue his arguments tomorrow.

Nationalist Congress Party (NCP) leader and state Minorities Development Minister - Malik was arrested on February 23 in a case of alleged money laundering and "active involvement in terror funding" in connection to a 1999- 2005 land deal involving Dawood Ibrahim's sister.

Malik was remanded in judicial custody yesterday.

In his plea before the HC, Malik has sought to quash the money laundering ECIR (FIR) registered against him as also the Special Court's first order remanding him in the ED's custody. Malik has also sought a declaration of illegal arrest.

Desai contended that Malik's arrest was illegal as he was forcibly picked up from his house on the morning of 23rd February, 2022 at about 6.00 am without any summons/notice under Section 41-A CrPC being issued to him and thereafter detained in the EDs office. He further alleged being served with a summons while in ED's custody, asking him to remain present at 8 am.

However, the crux of Desai's argument was the retrospective applicability of PMLA for two reasons. The first that an alleged offence dating back to 1999-2005 could not be used to book him under sections of the PMLA, as the act came into force in 2005.

Moreover, while remanding Malik in custody, the court had used the amended definition of Section 3 of PMLA instead of the original simplistic definition of Section 3 from 2005. Desai contended that the acts allegedly committed by Desai were not an offence in 2005.

Desai questioned that how for 22 years the original owner of the property - Munira Plumber- is not bothered about her property. "Not even to collect rent," Desai said about her statements that she was unaware Malik had even purchased the property till 2021.

Conversely the ED in their reply said that Malik's petition seeking to combine multiple causes of action being habeas corpus, quashing of the ECIR and release/bail in one writ petition, was not maintainable.

Moreover, Malik voluntarily came to the ED office and was arrested after his statement was recorded, the agency claimed.

ED asserted that "the offence of money laundering is a continuing offence as even provided in the statute. There is no challenge to the provisions of the statue." Therefore, there was no question of retrospective application.