Is Nawab Malik a sick person as per PMLA provisions and entitled to bail, asks Bombay HC; posts hearing on Feb 21

The Bombay HC has asked if NCP leader Nawab Malik is a "sick person" as defined under the provisions of the PMLA and hence would be entitled to bail.

Mumbai :The Bombay High Court on Tuesday asked if NCP leader Nawab Malik is a "sick person" as defined under the provisions of the Prevention of Money Laundering Act (PMLA) and hence would be entitled to bail.

A single bench of Justice M S Karnik while posting the former Maharashtra minister's bail plea for hearing on February 21 also said that his lawyers would have to first satisfy the court that Malik is unwell and hence has sought bail on medical grounds. Malik was arrested on February 23, 2022, under provisions of the PMLA by the Enforcement Directorate (ED) in connection with a probe linked to the activities of fugitive gangster Dawood Ibrahim and his aides.

"If I am not satisfied on medical grounds then you (Malik) will have to wait for your turn (for the bail plea to be heard on merits). There are many other urgent matters on board. Tomorrow, I don't want anyone to say anything," Justice Karnik said.
The bench also asked Malik's counsel Amit Desai and Additional Solicitor General (ASG) Anil Singh, appearing for the ED, to argue on the point of who is a "sick person" as per the provisions of the anti-money laundering act.

Section 45 of the PMLA lays down 'twin conditions'- - reasonable grounds to believe the accused is not prima facie guilty of the offence and the accused shall not commit any offence while on bail- for granting bail. These conditions are to be ascertained by the court. The twin conditions would not apply if the accused is below 16 years or is a woman or is sick or infirm, and then he or she may be released on bail.

"I have some questions on this as many matters are now coming up where the person (accused) says grant me bail as I am sick. So I want to know who is a sick person. I want you to argue on this 'sick person', who will be a sick person".

"If I am satisfied that the applicant in the present case (Malik) is a sick person then the twin conditions won't apply. But if I am of the opinion that he is not a sick person or is being treated well while in judicial custody then his bail plea would be heard later on merits," Justice Karnik said.

ASG Singh said he would submit to the court that Malik was not a sick person and hence the twin conditions of the Act would apply and he cannot be released on bail. Desai referred to the judgment passed by Justice Karnik while granting bail to Anil Deshmukh, the former Maharashtra home minister.

"In the Anil Deshmukh matter, this court passed the order on medical grounds and merits," Desai said. The bench said it would hear arguments on Malik's plea on February 21. Deshmukh was granted bail on December 12, 2022, by Justice M S Karnik in the corruption case registered by the Central Bureau of Investigation.

In May 2022, the special court designated to hear cases related to PMLA refused to grant bail to Malik on medical grounds but permitted him to get admitted to a private hospital for treatment. The 62-year-old politician approached the HC on November 30. He is in judicial custody and currently undergoing treatment at a private hospital in Mumbai. PTI