9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (3) TMI 1566 - HC - Money LaunderingSeeking a direction by issuance of a writ in the nature of mandamus to respondents 2 and 3 to consider the representation - Recalling of a Look Out Circular (LOC) issued against the petitioner - HELD THAT - It is deemed appropriate to notice the office memoranda issued by Government of India in the Ministry of Home Affairs from time to time. It would suffice for the journey to commence from the judgment of the Delhi High Court in the case of SUMER SINGH SALKAN v. ASSISTANT DIRECTOR AND OTHERS ILR 2010 (8) TMI 1083 - DELHI HIGH COURT wherein it is observed that Since the matter pertaining to these offences is subjudice it will not be appropriate to comment on this aspect but suffice it to say that the action against the petitioner of issuing RCN was uncalled for in view of the fact that neither offence for which the petitioner is facing trial in India is an extraditable offence nor any request for extradition of the petitioner has been made for the last 7 years despite knowing whereabouts of the petitioner. I therefore consider it a fit case for quashing the RCN issued against the petitioner at the behest of Delhi Police. The RCN is therefore hereby quashed. The petitioner is issued summons on 26-11-2021 after his arrival and stay in India for more than three months by the ED for investigation or questioning in a criminal case registered against one Mr. Srikrishna brother of the petitioner in Crime No.153 of 2020. On registration of the crime against several persons the ED also registers an Enforcement Case Information Report in ECIR No.1 of 2021 which was registered on 04-01-2021. Therefore there are two proceedings pending against the brother and father of the petitioner and several others in the predicate offence or under the provisions of the Prevention of Money Laundering Act 2002. An accused or any other person who is connected with the proceeds of crime but may not be accused in the predicate offence has a bounden duty to co-operate with the investigation. If the investigation does not get completed on account of his noncooperation which would result against others not being taken to logical conclusion it would defeat the delivery of justice as it would defeat discovery of crime. Therefore it is for the petitioner to give complete details and desist answering vaguely to the ED explain as to why temporary mails were created for transactions and reveal the password that the ED is asking. Therefore his travel beyond the shores of this nation will be subject to such clearance by the ED. It cannot also be ignored by the ED that the petitioner cannot be kept on tenterhooks by the sword of LOC hanging on him for all time to come. The LOC is issued on 13.01.2022 and more than a year has passed by. The ED shall also bear in mind plethora of judgments rendered by constitutional Courts from time to time where emphasize is on the right to travel abroad being a fundamental right. A positive direction is not rendered in the peculiar facts of the case at hand - it is deemed appropriate to direct the Enforcement Directorate to complete the investigation insofar as the petitioner is concerned within an outer limit of 6 weeks from the date of receipt copy of the order for which the petitioner shall co-operate and give such information that is necessary for completion of such investigation. After 6 weeks the ED shall consider the representation of the petitioner for withdrawal of LOC issued against him. Conclusion - The ED is directed to complete the investigation related to the petitioner within six weeks and to reconsider the LOC based on the petitioner s cooperation. Petition disposed off.
1. ISSUES PRESENTED and CONSIDERED
The core legal questions considered in this judgment include:
2. ISSUE-WISE DETAILED ANALYSIS Legal Framework and Precedents: The legal framework for the issuance of LOCs is derived from the Passport Act, 1967, and sections 10A and 10B, which provide for the suspension of passports and travel documents. The guidelines for LOCs have been established through various Office Memoranda issued by the Ministry of Home Affairs, as well as judicial precedents such as the Delhi High Court's decision in Sumer Singh Salkan v. Assistant Director and Others, which outlines the circumstances and procedures for issuing LOCs. Court's Interpretation and Reasoning: The Court interpreted the LOC guidelines to require a balance between the need for investigation and the fundamental rights of the individual. It emphasized that while LOCs serve as a tool for law enforcement, they must be used judiciously and not infringe upon constitutional rights without sufficient justification. The Court noted that the LOC was issued due to the petitioner's connection to ongoing investigations involving his brother, who was accused of serious offenses under the Prevention of Money Laundering Act (PMLA). Key Evidence and Findings: The petitioner was summoned by the ED for questioning related to his brother's alleged criminal activities. The ED claimed that the petitioner was not cooperating with the investigation, particularly by not providing passwords and other information. The petitioner argued that he had cooperated fully and that the LOC was unjustified as he was not an accused in any crime. Application of Law to Facts: The Court applied the guidelines for LOC issuance, noting that the petitioner had not been charged with any crime but was connected to the investigation due to familial ties. It recognized the petitioner's right to travel and livelihood but also acknowledged the ED's concerns about non-cooperation. The Court directed the ED to complete the investigation concerning the petitioner within six weeks and to consider the petitioner's representation for LOC withdrawal thereafter. Treatment of Competing Arguments: The Court balanced the petitioner's rights against the ED's need for investigation. It acknowledged the petitioner's claims of cooperation and the adverse impact on his employment and family due to the LOC. Simultaneously, it considered the ED's assertion of non-cooperation and the potential risk of the petitioner fleeing the country. Conclusions: The Court concluded that while the LOC could not be immediately withdrawn, the ED must expedite its investigation and reconsider the LOC after six weeks, provided the petitioner cooperates fully. 3. SIGNIFICANT HOLDINGS Core Principles Established:
Final Determinations on Each Issue:
|
