2023 (3) TMI 334 - HC - FEMA

Violation of the provisions of the Foreign Exchange Management Act - lookout circular against the petitioner - petitioner vehemently contend that the petitioner is not an accused in any crime under the IPC or under any other law - HELD THAT - A lookout circular cannot be issued against any subject in thin air. There has to be reason for issuance of such lookout circular. The categories on which the lookout circulars can be issued are borne out from several official memoranda issued by Union of India from time to time and right to travel can be curtailed only in terms of those ingredients found in the official memoranda. The case at hand does not have a single ingredient as found in those official memoranda for issuance of a lookout circular. The petitioner is not an accused in any case under any penal law. Therefore, the very act of issuance of lookout circular against the petitioner runs counter to law or counter to the guidelines issued by the Union of India from time to time. The Apex Court holds that right to travel abroad is an important basic human right of great significance. Referring to the judgment of the Apex Court in the case of MRS.MANEKA GANDHI V. UNION OF INDIA 1978 (1) TMI 161 - SUPREME COURT the Apex Court holds that refusal of such freedom to go abroad would contravene that genuine human right. Therefore the said right cannot be curtailed except in accordance with law. Communication between the 1st and 2nd respondents, the petitioner cannot be prevented or detained for the purpose of questioning or even questioned at any airport or anywhere else on the pretext of exchange of information between the respondents, the Originating Agency and the Bureau of Immigration. Originating Agency and the Bureau of Immigration shall update on their database with regard to non-questioning of the petitioner, as is observed in the course of the order in compliance of the order. The writ petition is disposed of with the above observations reserving liberty in the petitioner to knock at the doors of this Court in the event of any violation of this order. The writ petition is disposed of with the above observations reserving liberty in the petitioner to knock at the doors of this Court in the event of any violation of this order.

Summary

Issues:
Petitioner seeks recall of lookout circular against him and restoration of fundamental right to travel abroad.

Analysis:
1. Search and Summons: The petitioner, a businessman, was searched by the Enforcement Directorate for alleged violation of the Foreign Exchange Management Act, 1999. Subsequently, he received summons to appear before the Directorate, which was postponed multiple times without any fresh communication issued.

2. Travel Restriction: The petitioner, attempting to travel abroad, discovered a lookout circular preventing his travel. Despite compliance with court directives for travel, the circular hindered his departure. The petitioner approached the Court seeking relief to watch a football event.

3. Legal Arguments: The petitioner's counsel argued that he is not an accused, cooperated with authorities, and the alleged violation is not penal but subject to a fine. They emphasized the petitioner's law-abiding nature and business ties in the country, urging the recall of the lookout circular to restore his right to travel.

4. Enforcement Directorate's Position: The Enforcement Directorate contended that the case pertained to an alleged Act violation, emphasizing the need for travel intimation. They produced communication allowing the petitioner's travel, highlighting the need for only informational updates between concerned parties.

5. Court's Decision: After considering submissions, the Court noted the absence of grounds for the lookout circular against the petitioner. Citing the importance of the right to travel abroad as a fundamental human right, the Court directed that the petitioner not be detained or questioned based on the circular. The circular was modified to require only arrival/departure information, ensuring the petitioner's unrestricted travel.

6. Legal Precedent: The Court referenced the Apex Court's recognition of the right to travel abroad as a significant human right, emphasizing that curtailing this right must be in accordance with the law. Quoting previous judgments, the Court highlighted the importance of this freedom and the need to respect it unless legally justified.

7. Final Order: The Court disposed of the writ petition, instructing that the petitioner should not face any travel restrictions or questioning due to the lookout circular. The Originating Agency and Bureau of Immigration were directed to update their records accordingly, with the petitioner retaining the liberty to approach the Court in case of order violations.