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2022 (6) TMI 1312 - HC - Indian LawsValidity of Look Out Circular (LOC) issued against her by the Bureau of Immigration, Ministry of Home Affairs, Govt. of India - right to travel abroad is enshrined in Art.21 of the Constitution of India - HELD THAT - In the instant case, the respondents No.3 4 would prevent the petitioner from going to Australia on the basis of LOC dt.28.12.2021 issued at the instance of respondent No.2-Bank by the Bureau of Immigration (Ministry of Home Affairs, Govt. of India) - It is not in dispute that the copy of the same was never furnished to the petitioner till it was filed for the first time by respondent No.2 along with its written response in Court. The respondent 1,3 and 4 have not followed fair, just and reasonable procedure to deprive the petitioner of her fundamental right to travel abroad as they have not followed the principles of natural justice and did not even supply a copy of the LOC to petitioner inspite of her request to do so. When there is admittedly not even an FIR registered against the petitioner, and there is no question of her being accused of any noncognizable offence, no LOC could have been issued by respondent No.3 to detain the petitioner. At best, the respondent No.3 could have only given information to respondent No.2 about the arrival/departure of the petitioner according to the OM dt. 22.02.2021 - no exceptional case or any adverse effect on the economic interest of India has been made out either in the original request dt. 28.12.2021 made by respondent No.2 to respondent No.3 or in the reply/affidavits and recourse could not have been taken for a coercive process like issuance of LOC. The quantum of the alleged default by the borrower by itself cannot be the basis for seeking issuance of an extreme process like an LOC for restricting the personal liberty of the petitioner to travel outside the country without something more. The OM itself does not draw any line about the quantum of default by a borrower to a financial institution which would be considered detrimental to the sovereignty or integrity of India or to the economic interest of India and a quantum of default which would not fall in the said category - merely because the word public is used in the exception clause in the OM, it does not elevate a mere default to an exceptional plane. It cannot be said that the departure of the petitioner from the country would adversely impact the economy of the country as a whole and de-stabilize the entire economy of the country. There has been non-application of mind by respondent No.3 while issuing LOC dt. 28.12.2021 against the petitioner, and mechanically it appears to have been issued without there being any material to show that the petitioner would fall in the category of a person against whom an LOC is permitted to be issued by the guidelines framed in that regard by respondent No.1 - Merely looking at the quantum of loss caused to a banker, it cannot be presumed that there was a fraud committed by the borrower/guarantor, moreso when no criminal case alleging fraud has even been filed against the borrower/guarantor. Suspicion cannot take the place of proof. The action of the respondent No.2-Bank in seeking issuance of an LOC to prevent the petitioner from leaving the country on the ground that she was a guarantor to respondent No.5 s loan and there was more than Rs.100 crores owed to respondent no.2, is arbitrary, illegal and violative of Article 21 of the Constitution of India - LOC issued by respondents No.1, 3 4 against the petitioner at the instance of respondent No.2 is set aside - Petition allowed.
Issues Involved:
1. Legality of the Look Out Circular (LOC) issued against the petitioner. 2. Petitioner's right to travel abroad under Article 21 of the Constitution. 3. Procedural fairness and principles of natural justice in issuing the LOC. 4. Respondent No.2 Bank's justification for the LOC based on loan default. Detailed Analysis: 1. Legality of the Look Out Circular (LOC) Issued Against the Petitioner: The petitioner challenged the LOC issued by the Bureau of Immigration at the instance of the Bank of India. The court noted that the LOC was issued without informing the petitioner or providing her with a copy, which is against the principles of natural justice. The court emphasized that the LOC must be communicated to the affected party to have any legal effect, as per the Supreme Court's ruling in State of West Bengal vs. A.B.K. Ltd. 2. Petitioner's Right to Travel Abroad Under Article 21 of the Constitution: The court reiterated that the right to travel abroad is enshrined under Article 21 of the Constitution of India, as established in Satwant Singh Sawhney vs. D.Ramarathnam and Maneka Gandhi vs. Union of India. The petitioner's fundamental right to travel cannot be infringed without a fair, reasonable, and just procedure. The court found that the respondents did not follow such a procedure in issuing the LOC against the petitioner. 3. Procedural Fairness and Principles of Natural Justice in Issuing the LOC: The court held that the respondents failed to follow fair, just, and reasonable procedures by not providing the petitioner with a copy of the LOC or the reasons for its issuance. The court cited the Supreme Court's decision in Maneka Gandhi, emphasizing that any procedure depriving a person of their right to travel must be non-arbitrary and reasonable. The court found that the respondents' actions violated these principles. 4. Respondent No.2 Bank's Justification for the LOC Based on Loan Default: The court scrutinized the Bank's justification for requesting the LOC, which was based on the petitioner's role as a guarantor for a loan defaulted by respondent No.5. The court noted that the petitioner was not an accused in any criminal case, and there was no declaration of her being a willful defaulter. The court highlighted that mere suspicion or the quantum of loan default cannot justify restricting personal liberty through an LOC. The court found that the Bank's apprehension of the petitioner fleeing the country was not sufficient to warrant such a coercive measure. Conclusion: The court declared the LOC issued against the petitioner as arbitrary, illegal, and violative of Articles 14 and 21 of the Constitution of India. The court directed the respondents to permit the petitioner to travel to Australia to be with her daughter until the end of August 2022. Relief Granted: 1. The LOC issued against the petitioner was set aside. 2. The respondents were directed to allow the petitioner to travel abroad. The writ petition was allowed with no costs.
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