MOHAMMAD NAWAB MOHAMMAD ISLAM Vs. DIRECTORATE OF ENFORCEMENT
LAWS(BOM)-2022-6-90
HIGH COURT OF BOMBAY (AT: STATE)
Decided on June 17,2022

Mohammad Nawab Mohammad Islam Appellant
VERSUS
DIRECTORATE OF ENFORCEMENT Respondents

JUDGEMENT

- (1.) The Applicants who are the members of the Maharashtra Legislative Assembly, have preferred these Applications seeking, inter alia, the following reliefs : "(a) That this Hon'ble Court be pleased to grant relief to the Applicant to enable him to vote in the Maharashtra Legislative Council Election being conducted on 20/6/2022 from 9 am to 4 pm by releasing him on personal bond with sureties or on such other terms and conditions as this Hon'ble Court may deem fit; (b)Alternatively, this Hon'ble Court be pleased to permit the Applicant to go to Vidhan Bhavan under medical escort, the charges of which will be borne by the Applicant to enable him to vote in the Elections for Maharashtra Legislative Council being conducted on 20/6/2022 from 9 am to 4 pm on such terms and conditions as this Hon'ble Court may deem fit;"
(2.) The background facts necessary for determination of these Applications are few : 2.1 The Applicant - Nawab Malik is in custody since 23/2/2022 in connection with ECIR/MBZO-I/10/2022 for the offence punishable under Sec. 3 of the Prevention of Money Laundering Act, 2002 ('PMLA'). 2.2 The Applicant - Anil Vasantrao Deshmukh is in custody in connection C.R.No.ECIR/MBZO-I/66 of 2021 for the offence punishable under Sec. 3 of the PMLA since 2/11/2021. 2.3 The Applicants, with a view to exercise the right of vote in Rajya Sabha Biennial Elections in the capacity of the members of the Maharashtra Legislative Assembly, had preferred Applications for release on bail. The learned Special Judge, PMLA, by an order dtd. 9/6/2022 rejected the Applications. 2.4 A notification to call upon the members of the Legislative Assembly of the State to fill in the seats of the members of the Legislative Council has been issued by the Governor and the election is scheduled to be held on 20/6/2022. 2.5 The Applicants claim they have a constitutional duty to cast vote in the said election. The fact that the Applicants are incarcerated in connection with the aforesaid offence, cannot preclude them from discharging their constitutional duty. Since the learned Judge, PMLA, has negatived the plea of the Applicants qua the Rajya Sabha Election, recording a view on the construct of Sec. 62(5) of the Representation of the People Act, 1951, the Applicants are constrained to directly approach this Court by way of these Applications.
(3.) A limited Affidavit in Reply is filed by the Directorate of Enforcement - Respondent No.1. The tenability of the Applications is assailed on the ground that the Applicants have not availed efficacious remedy of approaching the learned Judge, PMLA. Since the Applicants have prayed for bail, the interdict contained in Sec. 45 of the PMLA comes into play. Even otherwise, in view of the settled position in law that a right to vote is nothing more than a statutory right, and the Applicants are precluded from exercising the said right by a statute itself, the prayer of the Applicants does not deserve to be entertained.;


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