Nawab Malik "Voluntarily" Visited Enforcement Directorate Office - ED Defends Allegations Of Illegal Arrest, Says Habeas Corpus Petition Not Maintainable

In a reply affidavit before the Bombay High Court, ED defended allegations by Malik of being forcibly picked up and served summons in the ED's office

The ED claimed that Malik was arrested at 2.45pm on February 23, before which his he was served summons and his statement was recorded after he "voluntarily" visited the ED office accompanied by his son.

"The purported allegation of a forcible pickup is even belied by a tweet from the office of the Petitioner (Nawab Malik)," the ED said.

The State Minority Development Minister alleged "illegal arrest," for being a "vocal critique of the misuse of Central agencies since actor Rhea Chakraborty's arrest" He further claimed that he is not the first to be targeted and this is a worrying trend across the nation where central agencies are being misused by the party in power."

The ED claimed that the petition was not "politically motivated" as alleged by Malik and that it was an "independent agency."

Not Maintainable

The ED claims that Malik's petition seeks to combine multiple causes of action being habeas corpus, quashing of the ECIR and release/bail in one writ petition, which amounts to a clear mis joinder of causes of action and the Writ Petition on this ground alone is not maintainable and is liable to be dismissed.

Moreover, the plea of habeas corpus is not maintainable as Malik's arrest is in accordance with Section 19 of the PMLA and he was subsequently remanded to custody by a judicial order of the Special PMLA court. Therefore, a habeas corpus plea pursuant to a valid judicial order remanding him in custody would not be illegal.

Money laundering a continuing offence, no retrospective application

Regarding the Malik's allegations that PMLA is being applied retrospectively for transactions between 1999- 2005, before the Act even came to force, and thus, violates his fundamental rights, the ED said "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."

Moreover, the offence being continuing there is no question of retrospective application. The ED further said that the timing of the commission of scheduled offence would be irrelevant since the test for money laundering would be the performance of any of the activities mentioned in sections 3 and 4 of the Act. "It is trite that money laundering is separate and independent offence." Proceeds of crime have been laundered/are being laundered after the enforcement of the PMLA and hence it is not a retrospective application.

It is trite law that merely because an antecedent event is considered whilst applying the law that would not make the law retrospective, the ED claims.

Power of Attorney Had a Clause Not to Sell Without Owners Permission

In their remand against Malik, ED alleged that that Malik in connivance with D-gang members i.e. Haseena Parker , Salim Patel and Sardar Khan hatched a criminal conspiracy for usurping one Munira Plumber's ancestral property in Kurla of 3 acres. Thus, it is proceeds of crime under section 2(1)(u) of PMLA. The ED relied on documents executed between March 1999 to September 2005.

The ED further claimed that sale happened through a power of attorney executed by Munia and Salim Patel's favour under the guise of removing encroachments.

Significantly Malik claimed that the hotly contested power of attorney given by Munira Plumber to Salim Patel in 1999 included power to sell.

However, ED said that according to clause 11 of an unregistered power of attorney, power of sale was granted subject to the "consent and consultation" of the owners. Further the said Power of Attorney is not registered and hence, the question of relying upon an unregistered document does not arise, the ED said.

ED Clarifies Allegation

After ambiguity regarding how much money actually exchanged hands the ED has said,

"It appears from the statement of an eyewitness that an amount of Rs 55 lakh was to be paid illegally to Haseena Parkar for this property. Out of which Rs 5 lakh in cash was paid by Faraz Malik (son of Petitioner) and Aslam Malik (brother of Petitioner) to Haseena Parkar. Further, it is matter of record that Rs 15 lakh by cheque was paid to Salim Patel and Rs. 5 lakh by cheque to Sardar Khan.. The Registry/Ready Reckoner rate of the property was Rs 3.54 Crore at the material time as against the payment of Rs 20 lakh by M/s Solidus Investments Pvt Limited. The beneficiaries of the payment were Mr. Salim Patel and Mr. Sardar Shahvali Khan @Sardar Khan who were associated with D-Gang. Mr. Salim Patel worked as driver and bodyguard of Haseena Parkar and was a close associate of Haseena Parkear and was indulging in land grabbing, extortion etc. on her behalf. Sardar Khan was convicted for life in 1993 Mumbai bomb blast case."