2021 (11) TMI 344 - HC - Customs

Seeking stay of Look Out Circular (LOC) - it contended that the Respondent is fully aware not only of the whereabouts of the Petitioner but also of the address of the factory premises. Respondent is also aware of the residential address of the Petitioner at Delhi, from the date of initiation of investigation, as the Show Cause Notice has been issued mentioning the residential address in para 2 thereof. HELD THAT - Perusal of the prayer clause in the writ petition reveals that the Petitioner has not laid a challenge to the Show Cause Notice or the Supplementary Show Cause Notices and has only assailed the LOC. Contents of the Show Cause Notice dated 29.11.2019 do indicate that Respondent is aware of the residential as well as official addresses of the Petitioner, both in India and abroad, as the same have been clearly referred to in the Show Cause Notice. Petitioner has categorically averred that no summons have been received by him from any Competent Court and there is no denial by the Respondent to the said averment. Mr. Gulati is also right in pointing out that there is no allegation against the Petitioner that he has not been co-operating in the investigation, as and when required. The LOC was issued on 08.07.2019. Applying para 8(i) of the O.M. dated 27.10.2010, clearly period of one year has expired long back and therefore by a deeming fiction, the name of the Petitioner is automatically removed from the LOC, unless it was renewed, which is not the pleaded case of the Respondent. We also cannot help but note that the Show Cause Notice was issued on 29.11.2019, followed by Supplementary Notices on 20.04.2020 and 18.09.2020, respectively, but till date the adjudication process is incomplete. Additionally, the Petitioner has categorically averred in the writ petition that the Petitioner suffers from several medical ailments and has annexed medical certificates as Annexure 5 (colly). For each of the aforesaid reasons, in our view, Petitioner has made out a prima facie case for grant of interim relief. In these circumstances, we hereby stay the operation, execution and implementation of the LOC issued against the Petitioner, till the next date of hearing. Directions issued. - to be listed on 24.12.2021

Summary

Issues Involved:
Challenge to Look Out Circular (LOC) issuance, Validity of LOC, Compliance with Office Memorandum provisions, Prima facie case for interim relief.

Analysis:
1. The petitioner, a Senior Advocate, challenged the Look Out Circular (LOC) issued against him, contending that the respondent was aware of his whereabouts and addresses, making the LOC unnecessary. The petitioner emphasized that he had not received any summons or complaints, and there were no allegations of non-cooperation during the investigation.

2. The petitioner's counsel argued that the LOC should be automatically removed as per an Office Memorandum (O.M.) issued by the Ministry of Home Affairs, which states that the LOC is valid for one year from the date of issue unless renewed. The petitioner claimed that more than a year had passed since the issuance of the LOC, and he should be removed from it.

3. Reference was made to another provision in the O.M. stating that if there is no cognizable offense, the LOC subject cannot be detained or prevented from leaving the country. The petitioner's counsel highlighted this to support the argument that the petitioner should not be restricted by the LOC.

4. The court found merit in the petitioner's contentions, noting that the petitioner had not challenged the Show Cause Notices but only the LOC. Additionally, the court observed that the adjudication process was incomplete, and the petitioner's medical condition, residing abroad, warranted interim relief from the LOC.

5. Consequently, the court stayed the operation of the LOC against the petitioner until the next hearing, with conditions that the petitioner would cooperate with any investigation, inform authorities of his whereabouts, and not leave the country without notification. The petitioner was required to file an affidavit of undertaking within 15 days, with a warning of consequences for violating the terms.

This detailed analysis outlines the key arguments, legal provisions, and court decision regarding the challenge to the LOC issuance, its validity, compliance with relevant provisions, and the grant of interim relief based on a prima facie case presented by the petitioner.