On what grounds is Nawab Malik seeking quashing of money laundering case?

Maharashtra Minority Affairs minister and NCP leader Nawab Malik — who was arrested by the Enforcement Directorate (ED) — approached the Bombay HC on Tuesday (March 1) with a Habeas Corpus plea seeking the quashing of the Enforcement Case Information Report (ECIR) against him, as well as his immediate release and an affirmation that his arrest and detention was “illegal.”

A bench of Justices S.B. Shukre and G.A. Sanap listed the matter for hearing on Wednesday.

Malik was picked up from his home in Mumbai early morning on February 23 and remanded to the agency’s custody by a Prevention of Money Laundering Act (PMLA) court up until March 3.

In his petition in the Bombay High Court, the 62-year-old veteran politician claimed that he was “forcibly picked up from his house” on February 23 at 6 am “without any summons/notice” being issued to him. He was detained at the ED’s office in Ballard Estate and served with a summons at the office itself while he was already in their custody. The central investigating agency then summoned him at 8 pm the same day. He was, thereafter, arrested by the agency at 2.45 pm.

Malik’s plea seeks to set aside the lower court’s order that remanded him to the ED’s custody on February 23; he is urging in the Bombay HC to not only quash and set aside the ECIR, but also the summons, Arrest Order and Impugned Order issued against him on the same day, and to consequently release him.

The ED’s money laundering case against Malik states that the minister and Haseena Parker, underworld don Dawood Ibrahim’s sister, had connived in 1999 to usurp a property at Kurla village that lawfully belonged to someone else. According to the ED, Malik and his family members took control of a company called Solidius Investments Private Limited from Salim Patel (Parker’s driver and bodyguard) who had allegedly deceived the original owners into handing him the power of attorney for the property.

The ED had said in its remand application that Malik had illegally paid money to get ownership and control of the said property, as well as introduced fake tenants.

All in all, the agency makes out a case that claims Malik knowingly hatched a conspiracy with prominent members of the D-company i.e. Haseena Parker, Salim Patel, and Sardar Khan, to usurp the Kurla property that is worth Rs 300 crore (according to ED) and legally belongs to a certain Munira Plumber.

In his plea, Malik has claimed that he has not committed any offence under PMLA. He describes the Kurla land deal as “a simple and perfectly legal transaction of sale and purchase of land from a bonafide purchaser.”

Malik points out (in his plea) that from 1999 till date, there is no FIR in respect of the alleged usurpation by anyone. He also states that since the Act was not in play during the year 1999 (it was notified in July 2005), the PMLA cannot be applied retrospectively now since it is a penal statute.

The plea further states that the ED has relied upon the NIA’s FIR registered against Dawood Ibrahim last month, as “the base” to register its ECIR. However, the NIA only names D-company members i.e. Haji Anees, Chhota Shakeel, Javed Chikna and Tiger Memon, as the accused in its case. Malik is not named in the FIR and has “no connection” to any of the people named in it.

The minister is also seeking his release based on the fact that he does not have any predicate offence to his name. Under PMLA, unless there is a predicate offence, no ECIR can be registered.

Malik claims that the ED “acted in unnecessary haste…while ignoring the constitutional safeguards under Article 21.” His plea states that the ED has “chosen to arrest” him for a transaction that is 22 years old, and “without any satisfactory reason available for the arrest”—even though this was “not a case where the investigation could not continue without carrying out the arrest.”

Malik says that the entire case is politically motivated since he has been a “vocal critic of the misuse of central agencies,” and that his political rivals were “deeply embarrassed” by the “exposes” carried out by him. He alleges that the ED’s actions are “premeditated and done in a calculated manner” since his lawyers, business partners, and even his brother Iqbal Malik were being randomly picked up and/or summoned by the ED.
“Since there was no case at all against the Petitioner and he would have been easily granted protection from arrest, therefore, it became imperative that the agency (ED) throws all the procedure to wind and gives him no chance to seek the remedies available to him by swopping down in the wee hours of the morning at his house with a forty-five man contingent of CRPF personnel,” states the petition.

Also read: ED arrests Nawab Malik for ‘links’ with Dawood, seeks 14-day custody

On Wednesday, the Bombay HC directed the ED to file its reply to Malik’s petition. Additional Solicitor General Anil Singh, who is representing the ED in the case, sought time to file the affidavit. The bench has posted the plea for hearing next on March 7.

On February 3, an FIR was registered by the National Investigating Agency (NIA) against underworld don and India’s top fugitive Dawood Ibrahim Kaskar. Apart from Dawood, the FIR names his close associates Anis Ibrahim Shaikh, Chhota Shakeel, Javed Chikna, and Tiger Memon, as the accused in the case. Based on this FIR, an ECIR was recorded against Dawood by the ED on February 14.

The ED had previously also recorded another ECIR on September 26, 2017, against Dawood’s associates Iqbal Kaskar (Dawood’s brother), Mumtaz Shaikh and Israr Ali Jamil Sayyed for extortion. The ECIR was based on an FIR registered by the Thane police earlier during the same month.

A third ECIR, based on multiple FIRs by the Mumbai police, was recorded by ED in August 2019 against Iqbal Mirchi and others.

These three ECIRs, against Dawood Ibrahim, Iqbal Kaskar and Iqbal Mirchi, have been merged, and a combined investigation by various central agencies has been initiated into the matter so as to cause an effective probe against the D-gang and its associates as a whole.