loc: Citizen can’t be detained, prevented from leaving country under LOC unless facing probe, trial:HC
Justice Mukta Gupta 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.
The court noted that the above stand was evident from clause (h) of para 8 of the office memorandum issued by FRRO on October 27, 2010, for issuance of Look Out Circular (LOC) in respect of Indian citizens and foreigners and observed, “what cannot be done directly, cannot be done indirectly”.
The court’s observations were made while dealing with a petition by one 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.
The petitioner informed the court that the ED was carrying out an investigation against his family members and relatives in certain cases but he was neither an accused nor a complaint was filed against him in either one of them.
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.
“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,” the court stated.
The court observed that the detentive LOC was converted into an intimative LOC after the filing of the petition and since the ED has already taken remedial action, no further directions were required.
“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,” the court said.
The court disposed of the writ petition “with the hope and expectations” that the authorities would “abide by the terms as laid down in the O.M. dated 27th October 2010”
