Malik’s counsel Senior Advocate Amit Desai was making arguments before a Bench of Justices PB Varale and SM Modak in a Habeas Corpus plea by Malik against the arrest.
Desai contended that Malik has been implicated though there were no predicate offences.
“I am only saying that there no is predicate offence with which I am concerned. Then there is an old FIR. Then there is an Enforcement Case Information Report (ECIR) which they claim is based on Mumbai FIRs but no details are given,” Desai said.
He pointed out that the transactions for which Malik has been implicated are from 1999, 2003 and 2005.
“There is invocation of PMLA under Section 3 and Section 19 powers. The PMLA was notified in 2005. There was no PMLA in 1999, 2003. Can Section 3 be made applicable to 1999 and 2003,” Desai demanded.
He further contended that the case against Malik is based on statements by persons who are not credible.
“They go and record statements of various persons. They are not credible, they are all gangsters. Mr. Malik has been in public service for more than 25 years,” Desai argued.
He questioned how Malik could have been arrested for an offence under Section 3 of PMLA when predicate offences which are prior to 2005.
“In the paragraph of the remand order – all the facts mentioned are of prior to 2005. The argument was that Malik’s family was still in possession, that is the offence,” Desai said.
He also pointed out that amendments to Section 3 were introduced only in 2013.
“Ingredients were introduced in 2013 and subsequently in 2019 explanation has been added in Section 3. An explanation can go back to 2013 but not 2005. Your ingredients have to be prospective,” Desai contended.
“22 years later you pick up a man and say ‘continuing offence’. But you want to bypass 45(2) [of PMLA] and keep the man in custody,” he added.
The Bench then turned told Additional Solicitor General Anil Singh, who was representing the ED, that even if it is assumed that the transaction took place in 2005, the arguments should be based on law which was prevalent in 2005.
“Even assuming the alleged transaction took place in 2005, you must revert back to the Act. The predicate offence is of 2005, consider what the position of law was then and argue,” the Court remarked.
The hearing will continue at 10 am tomorrow.