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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Prasanna B. Varale, S. M. Modak, JJ.
Mohammad Nawab Mohammad Islam Malik @ Nawab Malik - Appellant
Versus
Directorate Of Enforcement & Ors. - Respondents
Writ Petition No. 648 of 2022, Interim Application No. 774, 807 of 2022
Decided On : 15-03-2022
MONEY LAUNDERING - ARREST - MAINTAINABILITY OF HABEAS CORPUS PETITION - SCOPE OF SECTION 19 OF THE PREVENTION OF MONEY LAUNDERING ACT, 2002 - WHETHER THE ARREST OF THE PETITIONER WAS ILLEGAL - WHETHER THE ORDER PASSED BY THE SPECIAL COURT GRANTING CUSTODY OF THE PETITIONER IS ILLEGAL - WHETHER THE AMENDMENT TO SECTION 3 OF THE ACT OF 2002 WOULD HAVE ONLY PROSPECTIVE EFFECT - WHETHER THE PETITIONER IS ENTITLED TO THE DISCLOSURE OF THE MATERIAL IN THE INVESTIGATION - WHETHER THE PETITIONER IS ENGAGED IN CONTINUING OFFENCES - WHETHER THE ECIR IS A PRIVATE AND INTERNAL DOCUMENT OF THE DEPARTMENT AND AS SUCH, THERE IS NO QUESTION OF QUASHMENT OF THE SAID DOCUMENT.
Fact of the Case:
The Petitioner, a person active in social and political life, challenged the action initiated by the Respondent No. 1, firstly of registration of ECIR bearing No. ECIR/MBZO-I/10/2022, and secondly, arrest of the Petitioner effected vide order dated 23rd February, 2022, thirdly, the order passed by the learned Special Judge for PMLa dated 23rd February, 2022 on PMLa Remand application No. 184 of 2022 and order passed by learned Special Judge thereby granting judicial custody vide order dated 07th March, 2022, and by way of Interim applications No. 774 of 2022 & 807 of 2022 submitted to this Court as the order of arrest is an illegal ab-initio, unsustainable and by way of an interim prayer submitted that the Petitioner be released so as to protect his personal liberty.
Finding of the Court:
The Court held that the arrest of the Petitioner was not illegal and the order passed by the Special Court granting custody of the Petitioner is not illegal. The Court also held that the amendment to Section 3 of the Act of 2002 would have only prospective effect and the Petitioner is not entitled to the disclosure of the material in the investigation. The Court further held that the Petitioner is not engaged in continuing offences and the ECIR is not a private and internal document of the department and as such, there is no question of quashment of the said document.
Issues: 1. Whether the arrest of the Petitioner was illegal? 2. Whether the order passed by the Special Court granting custody of the Petitioner is illegal? 3. Whether the amendment to Section 3 of the Act of 2002 would have only prospective effect? 4. Whether the Petitioner is entitled to the disclosure of the material in the investigation? 5. Whether the Petitioner is engaged in continuing offences? 6. Whether the ECIR is a private and internal document of the department and as such, there is no question of quashment of the said document?
Ratio Decidendi: 1. The Court held that the arrest of the Petitioner was not illegal as all the necessary formalities and pre-requisites of the provisions of the Act were followed while effecting the arrest. 2. The Court held that the order passed by the Special Court granting custody of the Petitioner is not illegal as the Court considered the grounds raised in the remand application on its own merit and allowed the application. 3. The Court held that the amendment to Section 3 of the Act of 2002 would have only prospective effect as the amendment was in the nature of clarification added to the provision. 4. The Court held that the Petitioner is not entitled to the disclosure of the material in the investigation as such disclosure would frustrate investigation. 5. The Court held that the Petitioner is not engaged in continuing offences as the act of possession and enjoyment of the property and projecting the property is an untainted property are the factors so as to initiate an action against the Petitioner. 6. The Court held that the ECIR is not a private and internal document of the department and as such, there is no question of quashment of the said document.
Final Decision: The Court dismissed the Petition.
Key Points:- The Court held that the arrest of the Petitioner was not illegal and the order granting custody was not illegal. (!) - The amendment to Section 3 of the PMLA would have only prospective effect. (!) - The Petitioner is not entitled to disclosure of material in the investigation as disclosure would frustrate investigation. (!) - The ECIR is not a private/internal document of the department and there is no question of quashing it. (!) - Interim applications seeking release of the Petitioner were rejected; custody/remand upheld as valid. (!) (!) (!)
JUDGMENT
1. The Petitioner, a person active in social and political life, is before this Court challenging the action initiated by the Respondent No. 1, firstly of registration of ECIR bearing No. ECIR/MBZO-I/10/2022, and secondly, arrest of the Petitioner effected vide order dated 23rd February, 2022, thirdly, the order passed by the learned Special Judge for PMLa dated 23rd February, 2022 on PMLa Remand application No. 184 of 2022 and order passed by learned Special Judge thereby granting judicial custody vide order dated 07th March, 2022, and by way of Interim applications No. 774 of 2022 & 807 of 2022 submitted to this Court as the order of arrest is an illegal ab-initio, unsustainable and by way of an interim prayer submitted that the Petitioner be released so as to protect his personal liberty.
2. Mr. Desai, learned Senior Counsel appearing for Petitioner, in his detailed submissions, referred to various factual aspects firstly and then vehemently submitted that as the arrest of the Petitioner is clearly an act of violation of freedom in the nature of personal liberty granted to the Petitioner in the Constitution of India, the present Petition is filed so as to seek issuance of writ of habeas corpus. Mr. Desai further submitted that lodging the Petitioner in custody pursuant to his arrest is an act of illegal custody and incarceration and this Court being termed as protector of the fundamental rights of the citizen, the Petitioner is before this Court for protection under article 22(1) of the Constitution of India. Mr. Desai further submitted that the Petitioner is in public life for more than two decades and was elected as the representative of the people for as many as five occasions and presently Petitioner is enjoying his fifth terms as a Member of Legislative assembly. Mr. Desai further submitted that in the early hours of 23rd February, 2022 i.e. nearly at about 08.00 am the officers of Respondent No. 1 reached the house of the Petitioner, effected an arrest of the Petitioner vide order dated 23rd February, 2022 and served a summons upon him on the very day in the morning hours with a plea for recording his statement. The copy of the summons is also placed on record at Exhibit a-1, page 57 and the copy of the arrest order is placed on record at Exhibit a-2, page 58.
3. Mr. Desai then submitted that the Respondent No. 1 acting clearly in undue haste submitted remand application to the learned Special Judge seeking 14 days custody of the Petitioner. It was further submitted that arrangements were made by the family members of the Petitioner to provide legal assistance to the Petitioner and accordingly, the learned Counsel appearing for the Petitioner opposed the remand application and learned Special Judge on a very day i.e., 23rd February, 2022 allowed the application and the Petitioner was remanded in the custody of Respondent No. 1 till 03rd March, 2022. Mr. Desai further submitted that the Petitioner is still in the custody of Respondent No. 1. Mr. Desai further submitted that the only material on which the Petitioner can lay his hand to submit before this Court as a material against the Petitioner is in the form of arrest order and the remand application. Learned Counsel further submitted that the allegations as reflected in the remand application against the Petitioner is the Petitioner in connivance with the notorious offender namely, Dawood Ibrahim Kaskar and his associates acquired certain property from the proceeds of crime and till date is in occupation of the said property and using and projecting the said property as untainted property and as such, the Petitioner has committed an offence under Section 3 of the Prevention of Money-Laundering act, 2002 (for short 'act of 2002').
4. Mr. Desai by inviting our attention to the material placed on record submitted that the property referred to an alleged was purchased by the Petitioner in the year 2005 by complying all the legal formalities and now after lapse of 1
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