Nawab Malik Habeas Corpus Plea- Bombay High Court Hearing [DAY 4]- LIVE UPDATES

Desai distinguishes an NDPS judgement on continuing offence by possession from the present case.

*When we deal with the concept of possession,we should keep in mind what is being possessed.Narcotics is an inherently banned substance. Like a civilian found with RDX.

Desai - Like if the investigating officer comes forward and says, I've gone and spoken to five people, now, after 20 years they have denied the duly registered transaction. Because property prices have gone up 100 times. 

Desai highlights the multiplicity of litigation if for transactions in the last 50 years if people were to be tried the way Malik is being tried for possession. 

Desai - You have to show he came into possession after the amendment of the PMLA Act. There was no law in force when the accused was alleged to be found in possession of disproportionate assets, the SC said in this judgement.

Desai - The judgement (Sajjan Singh)/is not applicable on the face it because there another judgement of the SC after it.

https://indiankanoon.org/doc/729391/

Desai on "continuing offence" of PMLA as Malik or his family is still in possession of the plot. ASG has placed reliance on Sajjan Singh's judgement. 

Desai - In civil law you can have retrospective application. However,

Prima facie the ingredient of "possession" under PMLA can only be prospective and not retrospective. 

Desai - However, when it is in the same form and not projected as something then primary legislations can deal with it. 

Dealing with the essence of PMLA to say that it was brought in mainly to deal with organised crime in NDPS cases wherein tainted money was then laundered to be projected as untainted. 

Desai - You cannot say that adding ingredients or making additions to section 3 was a clarification. Only whether they should be read conjunctively.

Desai on a query from the court says that the two words were added to section 3 of PMLA by and amendment in 2013.