The Delhi High Court recently comprising of a bench of Justice Mukta Gupta said a citizen cannot be detained, arrested, or prevented from leaving the country under Look Out Circular (LOC) unless suspected to be involved in the commission or facing investigation or trial for cognizable offences under the law. (DHRUV TEWARI v. DIRECTORATE OF ENFORCEMENT)
It said an originating agency can only seek intimation of arrival and/or departure of such a citizen.
The bench said that when such a LOC of intimation is issued, the authorities at the point of departure or arrival cannot restrain the citizen even on the pretext of giving such intimation to the concerned agency.
Facts of the case
A plea was filed in a money laundering case registered for the Enforcement Directorate against the petitioner who sought the withdrawal of the LOC.
It referred to the office memorandum issued in 2010 by the foreigners regional registration office regarding LOCs relating to Indians and foreigners.
The relevant clause stated that “In cases where there is no cognizable offence under IPC or other penal laws, the LOC subject cannot be detained/ arrested or prevented from leaving the country.”
“The originating agency can only request that they be informed about the arrival/ departure of the subject in such cases.”
Hence the order underscored that the authorities using LOC could be used the same as a preventive LOC to restrain or detain a person.
The petition was filed by Dhruv Tewari who challenged the LOC issued against him concerning a money laundering case being probed by the Enforcement Directorate (ED). He approached the court after he was detained last year for three hours at the airport upon his arrival in India on account of the LOC.
Courts Observation and Judgment
The court said that a "preventive/detentive LOC" which resulted in the detention of the petitioner in the present instance was "clearly unwarranted" as he was not an accused either in the predicate offence or the two cases initiated by the ED.
The court noted that the petitioner was admittedly a minor at the time of the commission of the transactions purportedly resulting in the alleged offences.
The bench observed, "From clause (h) of para 8 of the O.M. dated 27th October 2010, it is evident that unless a citizen is suspected to be involved in the commission or facing investigation or trial on the accusation of offences which are cognizable under the Indian Penal Code or other Statutes, the citizen can neither be detained, arrested or prevented from leaving the country and the originating agency can only seek intimation of his arrival and/or departure."
The court stated, "Further in LOC of intimation the authorities at the airport/ or any other port of departure or arrival cannot restrain or detain the person on the pretext that intimation of his arrival or departure is required to be given to the originating agency which would indirectly serve as a detentive/preventive LOC."
The court disposing off the petition remarked, "In the present case the petitioner was not an accused either in the predicate offence nor the 2 ECIRs as he was admittedly a minor at the time of commission of the transactions purportedly resulting in the alleged offences under IPC, PC Act or even under PMLA. Thus, a preventive/ detentive LOC leading to the detention of the petitioner was clearly unwarranted. It is only when the petitioner filed the present writ petition that this preventive/ detentive LOC was converted into an intimative LOC. Since the respondent no.1 has already taken remedial action, no further directions are required to be passed in this petition. Needless to note that in the garb of LOC of intimation, the petitioner will not be detained or prevented at the airport or any other port on the pretext that first intimation has to be given to the originating agency."
Read Judgment ;
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(With input from news agency language)
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