Court Will Have To Balance State’s Interest With Fundamental Right To Health, Custody Not Pre-Trial Punishment: Nawab Malik To Bombay High Court

Justice MS Karnik was hearing Malik’s bail plea in Directorate of Enforcement’s money laundering case against him. Section 45 provides for stringent conditions to grant bail to accused in money laundering cases.

"I take it that he is suffering from serious medical condition. Now what I would like you to address me is merits and how to get over section 45 (of PMLA)", Justice MS Karnik said.

The court had earlier asked whether Malik fell under the “sick person” category for an expeditious bail hearing.

During the hearing today, Senior Advocate Amit Desai for Malik submitted that Malik is suffering with kidney problems. There is continuous deterioration to the extent that he has lost one kidney, the court was told. From May, court has allowed him to be in the hospital under continuous medical supervision.

However, if any test is required getting, court's permission takes 2-3 weeks, Desai submitted.

The ED arrested Malik in February last year alleging that he usurped a property in Kurla with the help of global terrorist Dawood Ibrahim's late sister Haseena Parkar between 1999-2006. It is the agency's case that since Parkar handled the gangsters' illegal businesses, the money was ultimately used for terror funding.

Malik approached the High Court after the special court refused him bail on November 30, 2022.

Desai referred to the proviso to Section 45 of CrPC which provides for court’s discretion in granting bail to sick persons, persons under sixteen years of age, and women in a non-bailable offence.

The proviso is an enabling provision, Desai said, adding that the court will have to balance state’s interest with the fundamental right to health.

Desai said that custody is not pre-trial punishment. It is just to secure his presence in the trial.

Desai submitted that the standard argument against bail is that money laundering is a serious crime, heinous crime etc. However, courts must consider that conviction is a rarity, and the relevant issue is whether the custody of the accused is required to secure his presence at the trial, Desai argued.

Desai further said that the court may deny bail if the case is at a crucial stage or the investigation is not complete. However, once this stage has passed, if the proviso’s conditions are satisfied, it must open itself, he submitted.

Case Title – Nawab Malik v. ED