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TMI Blog2022 (6) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... to show that he is misusing the liberty granted to him. In view of the previous conduct of the applicant there is no reasonable apprehension to presume that in the absence of LOC he will not come and appear before ED authorities in compliance of the summons. Further, if the applicant fails to appear in response to summons of the ED, without seeking exemption from the authorities of ED, fresh LOC can always be issued for taking coercive measures to secure the presence of the applicant. It is to be observed that as per the complainant / ED LOC is a measure to ensure that the applicant joins investigation. The present applicant though a citizen of India is a permanent resident of Dubai, UAE. It is the case of the complainant that the entire family and business of applicant in abroad. In such circumstances the applicant does not have much interest in India. It was argued on behalf of the complainant that no blanket protection can be given to the applicant. In this regard Ld. Counsel for the applicant fairly submitted that the applicant is willing to cooperate with the investigating agency and abide by any condition imposed by the court - this court does not see any justifiable reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The applicant is a citizen of India however he is a permanent resident of Dubai, UAE. His family is already living in Dubai. The applicant has businesses in Dubai as well as Iran (where he was born). The applicant used to visit India rarely for short periods. 2.1 The applicant voluntarily visited India and arrived at Mumbai Airport on 14.10.2021. He was detained at the airport. He was served summons requiring him to join investigation at the office of Directorate of Enforcement. The applicant joined investigation at Directorate of Enforcement office at Mumbai and he was allowed to leave at about 07:00 AM on 15.10.2021. Thereafter, on several occasions the applicant continuously appeared at the office of Directorate of Enforcement. 2.2 An application was moved by the applicant seeking permission to travel abroad and suspension of said Look Out Circular (LOC) against the applicant. Vide order dated 14.01.2022 the LOC was kept in abeyance for a period of two months from the date of order. The applicant was allowed to travel to Dubai subject to conditions as contained in para no. 16 of the said order. 2.3 The applicant moved another application for modification of the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant that the applicant has always joined investigation. Ld. Counsel for the applicant narrated the previous conduct of the applicant. It was further submitted that the applicant has always complied with the court orders. He has always returned after traveling. At page no. 93 of paper book is the notice dated 06.04.2022 given to the applicant. In this notice he was given liberty to either appear in person or through authorized representative. The bonafide of the applicant is clear from the fact that instead of sending some authorized representative the applicant himself personally appeared before the Directorate of Enforcement authorities. On 18.04.2022 and 22.04.2022 he returned in response to the Directorate of Enforcement notice in compliance of order dated 09.02.2022 of the Hon ble High Court. After the suspension of the LOC the applicant has never misused the said liberty. The applicant is 75 years old despite his age he travelled to physically appear before the Directorate of Enforcement authorities. Still the complainant / ED is alleging the applicant is not providing the required documents. 4.1 Ld. Counsel for the applicant read out the allegations of the Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused however till date he was neither arrested nor any charge-sheet filed against the petitioner. The respondent i.e CBI was directed to recall its request for opening the LOC against the petitioner. In Rana Ayyub Vs. Union of India Anr. W. P. (Crl.) 714/2022 decided by the Hon ble High Court on 04.04.2022 again it was held that LOC is a coercive measure to make a person surrender and consequentially interferes with a petitioner s right of personal liberty and free movement. It is to be issued in cases where the accused is deliberately evading summons / arrest or where such person fails to appear in Court despite non-bailable warrant. A balance has to be struck qua the right of the investigating agency to investigate the matter and the fundamental right of the petitioner of movement and free speech. 4.4 It was submitted on behalf of the complainant / ED that in the order dated 14.01.2022 para no. 14, last three lines Ld. Predecessor observed that if LOC is quashed the applicant will not join investigation. It was further submitted that the present applicant join investigation only when LOC was issued. So far though the applicant has been appearing before the Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned by the person concerned at the immigration check posts only for that period. In Sumer Singh Salkan Ors. Vs. Asstt. Director Ors. (Supra) Hon ble High Court answered the references:- The questions raised in the reference are as under:- A. What are the categories of cases in which the investigating agency can seek recourse of Lookout-Circular and under what circumstances ? B. What procedure is required to be followed by the investigating agency before opening a Lookout-Circular ? C. What is the remedy available to the person against whom such Lookout-Circular has been opened ? D. What is the role of the concerned court such a case is brought before it and under what circumstances, the subordinate courts can intervene ? The questions are answered as under :- A. Recourse to LOC can be taken by investigating agency in congnizable offences under IPC or other penal laws, where the accused was deliberately evading arrest or not appearing in the trial court despite NBWs and other coercive measures and there was likelihood of the accused leaving the country to evade trial / arrest. B. The investigating officer shall make a written request fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved as follows :- iii. That while the State argues, that the applicant has not cooperated in the investigation, the only aspect cited is that the applicant did not give to the I.O. original documents relating to the sale of goods against which money was received by the applicant/M/s Harshit Enterprises from M/s Heico Electronics. However, this demand of the I.O. must be taken as answered on point of fact, when the original, signed office copies of invoice/s dated 28.03.2014 were delivered by the applicant s counsel to the I.O. in court, as recorded in order dated 27.09.2017 made by the Sessions Court; and copies thereof were also placed on the court record. It is reasonable to assume that the original invoices would have been delivered to the person upon whom the invoices were raised, in this case M/s Heico Electronics, and would therefore not have been available with the applicant. iv. That the I.O. s allegation that the applicant was not cooperating in the investigation also needs to be put in legal perspective. Is the I.O.saying that an accused would be taken to be not cooperating in the investigation till he furnishes all material that the I.O. thinks is ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluded investigation insofar as the applicant is concerned. Viewed from this perspective, no further indulgence is deserved by the investigating agency and it cannot say that the applicant be kept in prison as an undertrial since he has not cooperated in the investigation. 5.4 In view of the above observations it is clear that the investigating agency cannot endlessly go on saying that the required documents are not being supplied by the applicant. It is pertinent to observe that these observations of the Hon ble High Court came in bail application. Here the applicant is not even an accused. 5.5 It was argued on behalf of the complainant / ED that if the LOC is quashed the applicant may not join the investigation. There is nothing in the previous conduct of the applicant to show that he is misusing the liberty granted to him. In view of the previous conduct of the applicant there is no reasonable apprehension to presume that in the absence of LOC he will not come and appear before ED authorities in compliance of the summons. Further, if the applicant fails to appear in response to summons of the ED, without seeking exemption from the authorities of ED, fresh LOC can always ..... X X X X Extracts X X X X X X X X Extracts X X X X
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