Person Against Whom "LOC Of Intimation" Is Issued Can't Be Detained By Airport Authorities: Delhi High Court
The Delhi High Court has observed that when a look out circular (LOC) of intimation is issued against a person, the authorities at the airport or any other port cannot restrain or detain such person on the pretext that intimation of arrival or departure is required to be given to the originating agency.Justice Mukta Gupta observed that such an action would indirectly serve as a detentive...
The Delhi High Court has observed that when a look out circular (LOC) of intimation is issued against a person, the authorities at the airport or any other port cannot restrain or detain such person on the pretext that intimation of arrival or departure is required to be given to the originating agency.
Justice Mukta Gupta observed that such an action would indirectly serve as a detentive or preventive LOC. It added that it is well settled that what cannot be done directly, cannot be done indirectly.
Referring to the Office Memorandum dated 27th October, 2010 issued for issuance of Look Out Circular (LOC) in respect of Indian citizens and foreigners, the Court said:
"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."
"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. It is well settled that what cannot be done directly, cannot be done indirectly."
The Court was dealing with a plea filed by one Dhruv Tewari seeking quashing of the LOC issued against him.
It was argued by counsel appearing for the petitioner that in the seven RCs registered by the CBI against the petitioner's grandfather, late father and late uncle on the allegations of commission of offences under the IPC and Prevention of Corruption Act, 1988 in the year 2012-2013, the petitioner was not made an accused, since admittedly at the time of alleged offence, he was a minor being 8 to 14 years old and was not involved in the family business.
It was added that in the ECIR recorded by the Enforcement Directorate against the petitioner's relatives including his grandmother, the petitioner was never arrayed as an accused nor any complaint has been filed against him.
The Petitioner pursued his Bachelors in Mechanical Engineering from Purdue University, Indiana, USA from April 2016 to February 2021. His father expired on 25th October, 2019. On 23rd February, 2021 upon his return to India, the petitioner was detained at the airport for three hours on account of the LOC opened against him in the second ECIR.
The Petitioner was then asked to join investigation on 24th February, 2021. However, no summons were issued to him. Accordingly, the Petitioner sought quashing of LOC in terms of the decision of Delhi High Court in Sumer Singh Salkan v. Assistant Director & Ors.
The Court observed 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 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," it said.
The Court further opined that since the Enforcement Directorate had already taken remedial action, no further directions were required to be passed in the 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," it said.
The Court thus disposed of the plea with the hope and expectations that respondent authorities will abide by the terms as laid down in the O.M. dated 27th October, 2010.
Case Title: DHRUV TEWARI v. DIRECTORATE OF ENFORCEMENT
Citation: 2022 LiveLaw (Del) 603