NEW DELHI: Alleged hawala dealer Mohammad Aslam Wani, arrested in a case involving Kashmiri resistance leader Shabir Shah, on Friday moved a Delhi court for bail.
Additional Sessions Judge Sidharth Sharma, who had on November 17 denied the relief to Wani in the decade-old case, sought a response from Enforcement Directorate (ED), asking it to file a reply by November 27.
The application said the court had denied the bail while applying the rigour of Section 45 (1) of Prevention of Money Laundering Act (PMLA), a stringent condition for securing bail. As per Section 45 of the Act, a person accused of an offence punishable for a term of three years imprisonment could be granted bail only if the Public Prosecutor was given an opportunity to oppose the application for release.
The provision also says that bail could be granted only if the court was satisfied that there were reasonable grounds for believing that the person is not guilty of such offence or that he is not likely to commit any offence while on bail.
The Supreme Court on Thursday struck down the condition saying it was “manifestly arbitrary” and “unconstitutional” as it drastically intruded into the fundamental rights of the accused.
“Since the section has been declared unconstitutional, the present application is being filed in view of this changed circumstance,” the application, filed today by advocate M S Khan, said.
The trial court had denied bail to the accused while terming the alleged offence as “grave and serious”.
The fresh application filed on Friday submitted that a 2010 trial court judgement clearing Wani of terror funding charges in 2005 case, based on which the current money laundering case was lodged in 2007, was confirmed by the Delhi High Court on October 31.
“The effect of confirmation of acquittal of the applicant (Wani) is that there is no material left to connect him with the co-accused (Shah) as it was not proved that money was recovered or was meant to be used for any illegal purpose (hawala),” the plea said.
The ED had in September filed a charge sheet against Wani and Shah, whose bail application in the case was also dismissed on August 22.
Wani was arrested by the ED from Srinagar on August 6 with the help of the state police and is currently in judicial custody. Shabir Shah was arrested by the agency from Srinagar on July 26.
The ED action against the two was in pursuance of an August 2005 case in which the Delhi Police’s Special Cell had arrested Wani, who is alleged to have claimed he had passed on Rs 2.25 crore to Shah.
In 2010, a Delhi court had cleared Wani of terror funding charges but convicted him under the Arms Act. The ED had registered a criminal case under the Prevention of Money Laundering Act against Shah and Wani.
On August 26, 2005, Wani was apprehended with the ED claiming Rs 63 lakh was recovered from him. It was also alleged that the funds were received through hawala channels from the Middle East, along with a large cache of ammunition.