"Offence of Money Laundering of Continuing Nature; Crime Has Traversed 20 Years," – Special Court In Nawab Malik's Remand Order

Observing that as per section 3 of the Prevention of Money Laundering Act, 2002, the offence of money laundering is "continuing in nature and it continues till such time a person [is] enjoying the proceeds of crime by its concealment or possession or acquisition or use of untainted property or use or projecting the same as untainted property" the special judge rejected the argument made on behalf of Nawab Malik that an offence from the year 1999 cannot be investigated now and custody cannot be granted. Nawab Malik, a cabinet minister in Maharashtra government, was arrested by the Enforcement Directorate on February 23, 2022 under PMLA and remanded in ED custody till March 3 by Special Judge Rahul Rokade. The Maharashtra Minister is now admitted to the State-run JJ Hospital. The judge, in his detailed remand order, has also observed that prima facie, there was material to indicate that the accused was in possession of the property as alleged by the ED and therefore, the court was not inclined to accept the submission advanced by Malik's counsel. "Prima facie, there are reasonable grounds to believe that the accusations are well-founded under PMLA. The investigation is at the nascent stage. Having regard to the serious allegations and statements in support of it, I am of the considered view that custodial interrogation of the accused is necessary to unearth all the ramifications involved in the crime," the court observed in its remand order. On the grounds on which the remand was required, the court said, "It is imperative to note that custodial interrogation of the accused is necessary to collect seized, recovered documents at the instance of the accused. The proceeds of crime has traversed since last 20 years and more. Therefore, sufficient time is required to be granted for the investigation of the offence." According to the case presented by Additional Solicitor General Anil Singh, appearing for the agency along with Hiten Venegaonkar, Malik and global terrorist Dawood Ibrahim Kaskar's sister Haseena Parkar (died in 2014) planned to usurp property in Goawala Compound in Mumbai's eastern suburb, Kurla. The ED claimed that the property belonged to one Munira Plumber and her mother Mariyam. Malik, who was already occupying a premises called 'Kurla General Store' in the plot measuring about 3 acres allegedly took control of one company called Solidus Investments Pvt. Ltd., which was also a tenant on the same property of different premises. It was further argued that Malik, along with Parkar, one Salim Patel and Sardar Khan hatched a criminal conspiracy and illegally took control of the said property as agreed by them in the meetings and Malik illegally paid money to get absolute control and ownership of the said property. He also introduced fake tenants in the said property and, in connivance with Parkar, Patel and Khan hatched a criminal conspiracy for usurping the prime property having current market value of around Rs 300 crore, resulting in proceeds of crime as defined under section 2(1)(u) of PMLA. Senior Advocate Amit Desai, appearing for Malik along with Advocate Taraq Sayed, argued that there was no material for satisfaction that the accused was guilty of the offence of money laundering. It was also argued that most of the transactions took place in the year 1999, before the law PMLA was enacted, therefore it was hit by Article 20(1) of the Constitution, which prohibits retrospective application of the PMLA. They also submitted that Malik was not a member of the Dawood gang; that he was not named in the predicate offence; and that the case was politically motivated to create a perception that an elected representative was involved in anti-national activities. They also argued that Malik was illegally arrested by the ED early in the morning without issuing any notice as per section 41A of the Cr.P.C. The well-known ruling of the Supreme Court in this regard in Arnesh Kumar Vs. State of Bihar And Another (2014) 8 Supreme Court Cases 273, was also cited to argue that before a Magistrate authorises detention under Section 167 CrPC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested are satisfied. The ruling further states that if the arrest did not satisfy requirements of Section 41 of the CrPC, the Magistrate was duty-bound not to authorise further detention and release the accused. The court took note of the basic facts of the case and details of the investigation carried out which involved statements of the alleged victim and a few others. "Prima facie, the aforesaid statements shows that the accused (Malik) usurp the said property through his brother Aslam Malik…..Prima facie, from the statements of the witnesses, it is alleged that the accused usurp the said property which belongs to Munira Plumber and her mother,"...

"Offence of Money Laundering of Continuing Nature; Crime Has Traversed 20 Years," – Special Court In Nawab Malik's Remand Order

Sharmeen Hakim

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