2019 (11) TMI 1779 - HC - Money Laundering

Validity of Look Out Circular issued by the first respondent, in purported exercise of its powers under Section 10-B of the Passports Act, 1967 - whether this Court ought to quash the Look Out Circular and permit the petitioner to go abroad? - restriction on going abroad - violation of fundamental right guaranteed under Article 21 of the Constitution of India or not? - HELD THAT - In the instant case, the C.B.I. and the Enforcement Directorate have placed copious materials to show that there is an active investigation of a gargantuan economic offence in progress. Sufficiency or otherwise of such materials for the issuance of a Look Out Circular is clearly outside the ken of judicial review under Article 226 of the Constitution of India. To permit the petitioner to leave India by lifting the Look Out Circular just because he has, so far, been co-operating with the Investigating Agencies, is tantamount to locking the stable after the horse has bolted. It will defy all credulity if this Court were to believe that the petitioner will return to India obediently and submit himself to legal process in strict adherence to his undertaking affidavit dated 12.08.2019 submitted to this Court. Coming to the contention of Mr. Satish Parasaran qua the petitioner's fundamental right guaranteed under Article 21 of the Constitution of India to go abroad, be it noted that, the right is not absolute, but, is subject to valid restrictions. Petition dismissed.

Summary

Issues Involved:
1. Validity of the Look Out Circular (LOC) issued against the petitioner.
2. Petitioner's claim of diplomatic immunity under the Vienna Convention.
3. Compliance with the guidelines for issuance of LOC.
4. Petitioner's fundamental right to travel under Article 21 of the Constitution of India.

Detailed Analysis:

1. Validity of the Look Out Circular (LOC) issued against the petitioner:
The petitioner, a Seychelles national and holder of a diplomatic passport, challenged the LOC issued by the first respondent under Section 10-B of the Passports Act, 1967, claiming it was arbitrary, mala fide, and ultra vires. The petitioner was detained at Chennai International Airport due to the LOC and subsequently filed a writ petition seeking its withdrawal to permit him to travel abroad. The CBI and Enforcement Directorate justified the LOC issuance, citing ongoing investigations into a large financial scam involving the petitioner, which posed a significant public interest concern. The court upheld the LOC, emphasizing the necessity to prevent the petitioner from fleeing and ensuring his availability for investigation.

2. Petitioner's claim of diplomatic immunity under the Vienna Convention:
The petitioner argued for immunity from prosecution under the Vienna Convention on Diplomatic Relations, 1961. However, the court rejected this claim, stating that the petitioner was not accredited to India as a diplomatic agent under Article 31 of the Vienna Convention. The court clarified that diplomatic immunity does not extend to activities outside official functions, such as engaging in financial transactions and money laundering.

3. Compliance with the guidelines for issuance of LOC:
The petitioner contended that the LOC did not meet the conditions stipulated in paragraph 7(a) of the Office Memorandum dated 27.10.2010, which requires the accused to be evading arrest or not appearing in court despite non-bailable warrants. The court noted that the guidelines in the Office Memorandum are not statutory but merely provide a framework for issuing LOCs. The court highlighted the amended paragraph 8(j) of the Office Memorandum, which allows LOC issuance in larger public interest, including economic interests and prevention of terrorism. The court found the LOC justified given the ongoing investigation into a significant economic offence involving the petitioner.

4. Petitioner's fundamental right to travel under Article 21 of the Constitution of India:
The petitioner argued that the LOC infringed upon his fundamental right to travel abroad under Article 21 of the Constitution. The court acknowledged this right but emphasized that it is not absolute and can be subject to valid restrictions. The court cited previous judgments where LOCs were quashed for Indian citizens with strong roots in India but distinguished the petitioner's case, noting his foreign nationality and potential flight risk. The court concluded that public interest and the integrity of the ongoing investigation outweighed the petitioner's right to travel.

Conclusion:
The court dismissed the writ petition, upholding the LOC issued against the petitioner. It emphasized the importance of public interest and the need to ensure the petitioner's availability for investigation into serious economic offences. The court also clarified the limited scope of judicial review in such matters, focusing on the decision-making process rather than the correctness of the decision itself. The petitioner's fundamental right to travel was deemed subject to valid restrictions in the context of the ongoing investigation.