But with his second remand coming up on Thursday, senior counsel Amit Desai appearing for Malik said a second remand should not then prejudice his rights to argue on merits as the issue is one of his fundamental rights.
“We are observing that if any subsequent remand is granted, it will not prejudice the rights and contentions of both parties, including the State (ED),’’ said HC bench of Justices S B Shukre and G A Sanap which heard the matter for a while before posting it to the bench that hears quashing pleas as its regular assignment.
Desai said it was a question of Malik’s rights to equality, liberty and Article 20 (i)—that prevents conviction of any person of any offence except for violation of law in force when the offence was committed as charged. His argument was that offence alleged by ED dates back to 1999 and 2003-2005 when PMLA Act was not in force, hence the case, arrest and remand is illegal. Malik, arrested on February 23 by the Enforcement Directorate (ED), was remanded by a special court designated under Prevention of Money Laundering Act (PMLA) till March 3.
The bench of Justices Shukre and Sanap was on Tuesday assigned the matter for March 2 hearing, after Malik’s lawyers Taraq Sayed and Kushal Mor had sought urgent hearing before the bench headed by Justice PB Varale, given his next remand date. Justice Varale is not available this week, Desai said when the bench said, “Let this matter be heard by the regular bench on Thursday.
It will be better that the regular bench hears it’’ and sought a reply from ED by then. Additional Solicitor General (ASG) Anil Singh for ED said it was ‘’not possible’’ as the petition was served on it only on Tuesday though the remand order was available on February 24 and the record is voluminous. He sought a week’s time to file a “proper reply’’ and said petition cannot be decided without considering its reply. The bench then posted it next Monday saying “reasonable opportunity is to be given to state to reply
.’’Desai cited details from the ED remand application at some length to show that the property transaction dated back to 1999 and 2003 while PMLA Act came into force in July2005 and hence the ‘ex post facto doctrine’ would be violated. “considering PMLA is a penal statute, it cannot be made applicable retrospectively as that would violate the doctrine of ex post facto, a fundamental right under Art 20(1) (of the Indian Constitution ),’’
Desai said it was an “illegal arrest’’ on “two sets of transactions, one of which he is not concerned with and one which his family members were.’’ Desai submitted, “This is a gross case of abuse of power. That’s why we are here– before the court for relief.’’
The ED case is that Malik allegedly over 20 years ago conspired with Haseena Parkar late sister of ‘Global terrorist’ Dawood Ibrahim and other D-gang members to “usurp property’’ in Kurla belonging to one Munira Plumber and her mother by paying Parker Rs 50 lakh in cash for a property worth Rs 300 crore in Goawalla compound, Kurla.
The court asked Desai to argue on legal points and Desai said he was only citing the remand details to give the context before getting into law points.