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2017 (1) TMI 1342
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....he same as being arbitrary and illegal, and consequently directing the second respondent to forthwith release the petitioner's passport bearing No.Z3313067. 2. The petitioner is a Non Resident Indian [NRI]. He is a promoter of various businesses in United Arab Emirates. He has been investing money in India by purchasing agricultural lands. While so, the respondents have initiated investigation against him for having purchased agricultural lands in India in violation of Foreign Exchange Management Act (in short) FEMA). In this context, a summon dated 06.11.2012 was issued to the petitioner requiring him to appear for an enquiry on 16.11.2012 at Cochin and the petitioner also appeared for such enquiry on 26.11.2012 and produced the documents required. The petitioner also received series of such summons from the respondents for his appearance in connection with the investigation both at Cochin and Delhi. Challenging the initiation of investigation against him, the petitioner has filed writ petition before the Kerala High Court and obtained interim stay. Ultimately, the Kerala High Court dismissed the writ petition filed by the petitioner on 06.09.2016. Thereafter, summon was issu....
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....Court in Crl.O.P.No.27741 of 2013 dated 31.10.2013 [E.V.PERUMAL SAMY REDDY vs. STATE REPRESENTED BY the DEPUTY COMMISSIONER OF POLICE AND STATE REPRESENTED BY THE INSPECTOR OF POLICE] has set aside an identical LOC holding that there is no allegation to the effect that the petitioner therein has absconded. This Court also categorised the persons against whom such look out circular has to be issued in Paragraphs 9, 13 and 14. Useful reference can be made to the order passed by this Court which reads as follows:- 9. It is basic that merely because a person is involved in a criminal case, he is not denude of his Fundamental Rights. It is the fundamental of a person to move anywhere he likes including foreign countries. One's such personal freedom and liberty cannot be abridged. In the celebrated in MENAKA GANDHI Vs. UNION OF INDIA[AIR 1978 SC 597], the Hon'ble Supreme Court upheld the constitutional right of persons to go abroad. The phrase no one shall be deprived of his "life and liberty" except procedure established by law employed in Article 21, had deep and pervasive effect on fundamental right and human right. MENAKA GANTHI (supra) ushered a new era in the annals of In....
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....ho can be included in the LOC? Ans: i) Persons with Terrorist or Militant Links, ii) Belligerent Foreigners. Iii) Foreigners previously noticed for violations of visa conditions. iv) Persons required by courts in criminal / civil cases who are absconding. v) Absconding Offenders wanted by Police / CBI / Customs / Central excise / Directorate of Rev. Intelligence / other agencies." 19Q: What is the upper limit for maintaining a wanted persons name in LOC? Ans: (i) Visadex cards after expiry of one year will be weeded out unless and otherwise the originator asks for continuance. (ii)MHA warning circulates/look out instructions will be retained permanently until specific instructions are given for deletion. 12. L.O.C. containing full particulars of the person is being sent throughout the world. Even to Interpol also. It is being sent using software techniques. Its effect is that the person against whom L.O.C. has been issued, if lands in an Indian Airport, he will be apprehended. There will be difficulty for him to land in a foreign country also as he will not allowed to enter the country from the Airport. 13. Petitioners are facing criminal prosecutions. They are ....
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....ondents have issued the Look Out Circular. As he is resident of Dubai, to record his statement he was detained at Chennai Airport on 22.12.2016. In this context, the learned counsel for the respondents 2 to 4 relied on the judgment of the Delhi High Court in SUMAN SEHGAL vs. UNION OF INDIA [AIR 2006 DELHI 216] wherein it was held that passport can be impounded even by invoking the provisions of the FEMA Act. Further, the passport of the petitioner is impounded for a limited period of 90 days in order to ensure his availability in the office of the second respondent for the purpose of investigation. Therefore, the learned counsel for the respondents prayed for dismissal of the writ petitions. 7. Heard the learned senior counsel for the petitioner, learned counsel for the first respondent as well as the learned counsel for the respondents 2 to 4. 8. The learned Senior Counsel for the petitioner pointed out that the fundamental right guaranteed to the petitioner under Article 21 of the Constitution of India cannot be curtailed by an investigating agency. The petitioner is a NRI, investing funds for buying agricultural lands. Even if any violation has been committed by the petitioner....
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....s tilted in favour of the Petitioner but the Court cannot overlook that the Petitioner has approached this Court under Article 226 of the Constitution of India, an equitable jurisdiction. During the course of arguments, it was argued with some emphasis that there are number of accounts and some of them contain transactions of very highest magnitude which were not declared by the Petitioner despite specific directions of the Court. The only explanation that has been putforth on behalf of the Petitioner in that behalf is that he forgot to give complete statements and some of the accounts were dormant. It was stated and even mentioned in one of the affidavits filed on behalf of the Union of India that some transactions even exceeded the amount of US$ 85,000. We are unable to accept in entirety the explanation rendered by the Petitioner for non furnishing the details of accounts. Thus, in order to balance the equities between the parties, we consider it appropriate to direct the Petitioner to furnish to the Respondents all these statements with details of transactions within a period of one week from the date of pronouncement of this order. Besides this, the Petitioner shall also furni....
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.... 12. In the present case, no steps have been taken under Section 10 of the Act which provides for variation, impounding and revocation of the passports and travel documents. Section 10A of the Act which provides for an order to suspend with immediate effect any passport or travel document; such other appropriate order which may have the effect of rendering any passport or travel document invalid, for a period not exceeding four weeks, if the Central Government or any designated officer on its satisfaction holds that it is necessary in public interest to do without prejudice to the generality of the provisions contained in Section 10 by approaching the Central Government or any designated officer. Therefore, it appears that the passport of the appellant cannot be impounded except by the Passport Authority in accordance with law. The retention of the passport by the respondent (CBI) has not been done in conformity with the provisions of law as there is no order of the passport authorities under Section 10(3)(e) or by the Central Government or any designated officer under Section 10A of the Act to impound the passport by the respondent exercising the powers vested under the Act. 11....
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.... civil consequences must be passed after giving opportunity of hearing to a party vide State of Orissa Vs. Binapani Dei [Air 1967 SC 1269]. 14. In the present case, neither the passport authority passed any order of impounding nor was any opportunity of hearing given to the appellant by the passport authority for impounding the document. It was only the CBI authority which has retained possession of the passport (which in substance amounts to impounding it) from October, 2006. In our opinion, this was clearly illegal. Under Section 10A of the Act retention by the Central Government can only be for four weeks. Thereafter it can only be retained by an order of the Passport authority under Section 10(3). 15. In our opinion, even the Court cannot impound a passport. Though, no doubt, Section 104 Cr.P.C. states that the Court may, if it thinks fit, impound any document or thing produced before it, in our opinion, this provision will only enable the Court to impound any document or thing other than a passport. This is because impounding a passport is provided for in Section 10(3) of the Passports Act. The Passports Act is a special law while the Cr.P.C. is a general law. It is well s....
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....nue Intelligence and other competent investigation agencies. In the present cdase, no where it was mentioned in the impugned circular that the petitioner comes under any of the categories mentioned in the instructions given by the respondents themselves. 12. In so far as impounding of passport is concerned, the Honourable Supreme Court in the case of Suresh Nanda vs. CBI mentioned supra, has held that the police may not have power under Section 102 (1) of Code of Civil Procedure to seize a passport or to impound the same. It was further held that impounding of a passport can only be done by the Passport Authority under Section 10 (3) of the Passports Act, 1967. The Honourable Supreme Court has also laid down a distinction and difference between seizing a document and impounding a passport by holding that a seizure is made at a particular moment when a person or authority takes into his possession some property which was earlier not in his possession. However, if after seizing of a property or document the said property or document is retained for some period of time, then such retention amounts to impounding of the property or document. In that case, the Honourable Supreme Court h....