Nawab Malik's Right To Health Not Curtailed, Says Bombay High Court, Refuses Bail

Nationalist Congress Party leader Nawab Malik is getting "specialized medical assistance" and his right to health or right to life is not infringed in any manner, said the Bombay High Court while refusing him medical bail in a money laundering case being probed by the Enforcement Directorate (ED).

The HC further said Malik's medical report does not indicate he is suffering from any critical ailment.

On the contrary, the report says the former state minister does not need further hospitalization, the HC observed.

A single bench of Justice Anuja Prabhudessai had rejected Malik's plea seeking bail on medical grounds on July 13. The detailed order was made available on Saturday.

Malik was arrested in February 2022 by the ED in a case linked to alleged activities of fugitive gangster Dawood Ibrahim and his associates. He is in judicial custody and currently undergoing treatment in a private hospital here.

Malik's counsel Amit Desai had argued his client's health was deteriorating over the last eight months and he was in stage 2 to stage 3 of chronic kidney disease.

In its order, the HC bench said there can be no dispute that the right to health is recognized as an important facet of Article 21 (of the Constitution).

"It is a right available to every person, including an under trial prisoner or convict. In fact, failure of the state to provide proper medical aid to prisoners, who are largely dependent on the jail authorities, would be in violation of the right guaranteed under Article 21 of the Constitution," the HC order said.

In the instant case, Malik has several pre-existing ailments, it observed. He was admitted to the state-run JJ Hospital in Mumbai from February 25 to 28, 2022 and on subsequent dates.

"He is admitted and is being treated in Criti Care Asia, a multi specialty hospital of his choice, since May 17, 2022. The applicant is provided adequate, effective and specialized medical assistance, and his health condition is being monitored by the doctors specialized in the field. Hence, his right to health or right to life is not curtailed or infringed in any manner," the court observed.

The bench was of the view that there can be no straight jacket formula in cases of medical bail and exercise of discretion under the proviso depends on facts and circumstances of each case.

The thumb rule essentially is the nature of the sickness, health condition as well as availability of specialized and sustained medical treatment to the inmates confined within the four walls of the jail, the court said.

The medical report of Malik does not indicate the applicant is suffering from any critical ailment or that his right kidney is functioning in a compromised manner. On the contrary, the report states that the applicant does not need further hospitalization, the court said.

A medical board to examine the health condition of the accused was constituted on the direction of the HC and its report reveals he has a small left kidney with few benign cysts and a solitary functioning right kidney, the court said.

It also does not indicate the right kidney of the applicant has deteriorated or that it is functioning only at 60 per cent (as claimed by the accused).

The report otherwise does not indicate that the applicant is suffering from any such chronic illness, which justifies grant of medical bail, the court added.

The court is expected to hear his plea seeking bail on merits after two weeks.

The ED's case against Malik is based on an FIR filed by the National Investigation Agency (NIA) against Dawood Ibrahim, a designated global terrorist and a key accused in the 1993 Mumbai serial bomb blasts, and his associates under the Unlawful Activities (Prevention) Act.

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