TaxTMI 
TaxTMI 
2023 (3) TMI 1566
X X X X Extracts X X X X
X X X X Extracts X X X X
....his nation to see his ailing father who appears to have been suffering from Parkinson's disease. The petitioner is a holder of a Dutch residence permit and not a citizen which is necessary for work in Netherlands. Coming of the petitioner to the shores of India is not what is the issue in the lis. 3. The brother of the petitioner had been embroiled in certain transactions which have become subject matter of proceedings before the Enforcement Directorate. In furtherance of the said proceedings, summons come be issued against the petitioner on 26-11-2021 directing him to appear before the 3rd respondent on 29-11-2021. The petitioner did appear before the 3rd respondent and co-operated with the investigation. Since the petitioner was working at Netherlands he had to return back to his job and accordingly, owing to his employment condition, scheduled his travel to Netherlands on 13-01-2022. The petitioner was issued a boarding pass as well for such travel. At the time of boarding the flight, the petitioner was stopped and restrained from proceeding further. Stamping was made on the Visa of the petitioner as cancelled. The petitioner then knocks at the doors of this Court in Writ Pet....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ference to them would be made in the course of this order as per their relevance. 8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. 9. Before embarking upon merits of the matter, I deem it appropriate to notice the office memoranda issued by Government of India in the Ministry of Home Affairs from time to time. It would suffice for the journey to commence from the judgment of the Delhi High Court in the case of SUMER SINGH SALKAN v. ASSISTANT DIRECTOR AND OTHERS ILR (2010) 6 Delhi 706 wherein it is observed as follows: "5. This court also received a reference from ACMM, Patiala House Court regarding guidelines for issuance of LOC and for closure of LOCs. Response of the State/UOI was sought on this reference. In its response, it is stated by UOI that there was no legal definition of LOC. However, LOC was interpreted as a communication received from an authorized government agency with reference to a person who is wanted by that agency for fulfillment of a legal requirement, to secure arrest of a person evading arrest, to nab a Proclaimed Offenders so as to facilitate court proce....
X X X X Extracts X X X X
X X X X Extracts X X X X
..../suspected persons wanted in some cases. Besides, different courts also issue these communications in the form of LOCs including LOCs against those person who evade their presence in the Court of law during the course of judicial trial." 9. It is further clear from the reply that in terms of a subsequent O.M. dated 27th December 2000 there is a specific proforma in which a request must be made for opening of an LOC and this should be issued "with the approval of an officer not below the rank of Deputy Secretary to the Government of India/Joint Secretary in the State Government/ Concerned Superintendent of Police at district level." A copy of the Office Memorandum dated 27th December 2000 enclosing pro-forma for request for opening an LOC has also been enclosed. 16. The question now is only for consequential relief that should be granted. The power to suspend, even temporarily, a passport of a citizen, the power to issue an LOC, the power to 'off-load' a passenger and prevent him or her from travelling are all extraordinary powers, vested in the criminal law enforcement agencies by the statutory law. These are powers that are required under the law, to be exercised....
X X X X Extracts X X X X
X X X X Extracts X X X X
....3 SCC 82 : AIR 1984 SC 1026. When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases we have the jurisdiction to compensate the victim by awarding suitable monetary compensation. We consider this an appropriate case." This High Court concerning the issuance of LOC in Vikram Sharma (Supra) gave following directions: "19. Mr. Nanda, learned counsel appearing for Respondent No. 1 submitted that in order to ensure that such incidents do not recur, this Court should direct that further instructions/circulars should be issued clarifying the correct legal position. This Court finds that there are a large number of statutory commissions at the level of the Centre and the States which perform judicial functions and are vested with, for the purpose of conducting inquiries upon receiving complaints, the powers of a civil court. These include the National Human Rights Commission ('NHRC'), the NCW, the National Commission for Protect....
X X X X Extracts X X X X
X X X X Extracts X X X X
....extraditable offence, nor any request for extradition of the petitioner has been made for the last 7 years despite knowing whereabouts of the petitioner. I, therefore, consider it a fit case for quashing the RCN issued against the petitioner at the behest of Delhi Police. The RCN, is therefore, hereby quashed. 11. Look-out-Circular has also been issued against the petitioner as the petitioner is an accused the Court of M.M. and he has not appeared the Court of M.M. If the petitioner gives an undertaking the court for his appearance on a particular date, through his counsel, the Look-out-Circular issued against the petitioner shall be withdrawn within 24 hours of giving undertaking by the petitioner. 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 Look-outCircular and under what circumstances? B. What procedure is required to be followed by the investigating agency opening a Look-out-circular? C. What is the remedy available to the person against whom such Look-out-Circular has been opened? D. What is the role of the concerned Court wh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....- (i) Deputy Secretary to the Government of India; or (ii) Joint Secretary in the State Government; or (iii) District Magistrate of the District concerned; or (iv) Superintendent of Police (SP) of the District concerned; or (v) SP in CBI or an officer of equal and level working in CBI; or (vi) Zonal Director in Narcotics Control Bureau (NCB) or an officer of equivalent level including Assistant Director (Ops.) in Headquarters of NCB); or (vii) Deputy Commissioner or an officer of equivalent level in the Directorate of Revenue Intelligence or Central Board of Direct Taxes or Central Board of excise and Customs; or (viii) Assistant Director of Intelligence Bureau/Bureau of Immigration (BOI); or (ix) Deputy Secretary of Research and Analysis Wing (R & AW); or (x) An officer not below the level of Superintendent of Police in National Investigation Agency; or (xi) Assistant Director of Enforcement Directorate; or (xii) Protector of emigrants in the office of the protector of emigrants are in office or not below the rank of deputy Secretary of the Government of India; or (....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... applicable in the following cases. a. Ban-entry LOC's issued for watching arrival of Wanted persons (which have a specific duration); b. loss of passport LOC's (which ordinarily continuous till the validity of the document); c. LOC's regarding impounding of passport; d. LOC's issued at behest of courts and interpol j) In exceptional cases LOC's can be issued without complete parameters and/ pr case detail against Cl suspects, terrorist, anti-national element, etc in larger National interest. k) the following procedures will be adopted in case of statutory bodies like NCW, the NHRC and national commission for protection of children's rights request for preventing Indian/ for from. Search our first to be brought to the notice of law enforcement Agencies like the police. The SP concerned with then makes the request for issuance of an LOC upon an assessment of the situation. The immigration/ immigration authorities will strictly go by the communication received from the officer authorised to open LOC's as details in para 8(b) above. 9. It is requested that the contents of this OM may be brought to the notice of all concern....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) Deputy Secretary of Research and Analysis Wing (R & AW); or (x) An officer not below the level of Superintendent of Police in National Investigation Agency; or (xi) Assistant Director of Enforcement Directorate; or (xii) Protector of Emigrants in the office of the Protectorate of Emigrants or an officer not below the rank of Deputy Secretary to the Government of India; or (xiii) Designated officer of Interpol; or (xiv) An officer of Serious Fraud Investigation Office (SFIO), Ministry of Corporate Affairs not below the rank of Additional Director (in the rank of Director in the Government of India); or (xv) Chairman / Managing Directors / Chief Executive of all Public Sector Banks. (C) LOC can also be issued as per directions of any Criminal Court in India. In all such cases, request for opening of LOC shall be initiated by the local police or by any other Law Enforcement Agencies concerned so that all parameters for opening LOCs are available. (D) The name and designation of the officer signing the Proforma for requesting issuance of an LOC must invariably be mentioned without which the request for issuance o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....est on quarterly and annual basis and submit the proposals to delete the LOC. if any, immediately after such a review. The BOI should contact the LOC Originators through normal channels as well as through the online portal. In all cases where the person against whom LOC has been opened is no longer wanted by the Originating Agency or by Competent Court, the LOC deletion request must be conveyed in Bol immediately so that liberty of the individual is not jeopardized. (K) On many occasions, persons against whom LOCs are issued, obtain Orders regarding LOC deletion/quashing/suspension from Courts and approach ICPs for LOC deletion and seek their departure. Since ICPs have no means of verifying genuineness of the Court Order, in all such cases, orders for deletion/ quashing/suspension etc. of LOC, must be communicated to the Bol through the same Originator who requested for opening of LOC. Hon'ble Courts may be requested by the Law Enforcement Agency concerned to endorse/convey orders regarding LOC suspension/ deletion/quashing etc. to the same law enforcement agency through which LOC was opened. (L) In exceptional cases, LOCs can be issued even in such cases, may....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (v) Whenever the subject of LOC is arrested or the purpose of the LOC is over, a deletion request shall be sent by the Originator immediately to the BoI. (vi) The Originator must respond promptly whenever the subject / likely match is detected a the ICP. The confirmation regarding the identity of the subject and action to be taken must be informed immediately to the ICP. (vii) The BOI would form a team to coordinate matters regarding the LOC. This team would contact the LOC issuing agencies to get the status of LOC updated. (viii) Each LOC Originating Agency referred in para 6 (B) above will appoint a Nodal officer as indicated in Annexure - I for coordination/ updation of LOC status with BoI. The said team of BoI [as mentioned in para 6(N) (vii)] would remain in constant touch with this Nodal Officer. 7. It is requested that the consolidated guidelines as contained in this O.M. may be brought to the notice of all concerned for strict compliance." (Emphasis added) In terms of the afore-quoted guidelines pursuant to the judgment of the Delhi High Court in the case of SUMER SINGH SALKAN and the one that is now being operated would unmistakab....
X X X X Extracts X X X X
X X X X Extracts X X X X
....-coin exchanges and thereby had made high value transactions within and outside the country. The brother of the petitioner is said to have converted crypto currencies and traded them in international platforms and had amassed wealth by such illegal gains which formed proceeds of crime. Summons was issued to the brother and father of the petitioner under Section 50 of the PML Act. Statements were recorded regarding involvement of the brother of the petitioner in hacking of crypto exchanges and poker websites in India and overseas from 2013 up to date. 12. It is the case of the ED that the brother of the petitioner had admitted in those statements that proceeds have been utilized for illicit activities such as narcotics, travel, parties and stay at luxurious hotels etc. A separate case has also been registered against the brother of the petitioner for stealing bitcoins and purchasing narcotics on line through Darkweb in Crime No.91 of 2020. These are the proceedings against the brother of the petitioner. The proceedings in ECIR 4 of 2020 comes to be registered on the strength of the FIR in Crime No.9 of 2019 registered by the Crime Investigation Department Police with regard to ha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n at Netherlands and he may not be available for further investigation has to be respected in view of extract of e-mails reproduced in their statement of objections. 19. It is for the petitioner to co-operate with investigation being conducted by the third respondent and to convince the third respondent that he has no role to play in money laundering case registered against his brother and request for withdrawal of LOC issued against him." (Emphasis supplied) The co-ordinate Bench recorded that the petitioner was not co-operating with the investigation as he is not divulging the passport or the password of e-mail account and is not divulging receipt of 50,000 pounds from his brother through Bank transfer and further transfer from his account to one Mr. Hanish Patel. The observations of the co-ordinate Bench of this Court in the aforesaid order is as follows: "11. Learned Additional Solicitor General inviting attention of this Court to memo dated 5-04-2022 submits that even on 23-03-2022, the petitioner instead of appearing before the third respondent, sent a letter through his advocate and the said letter is also silent on the aspect of receipt o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nataka with regard to hacking of e- Procurement Portal of Government of Karnataka and theft of Rs. 11.55 crores from the Government Portal bank account." (Emphasis supplied) Therefore, this Court recorded the submissions of the ED that the petitioner is not co-operating with the investigation. He is even now not divulged the fact of receipt of huge amount and further transfer to third party viz., Sri Hanish Patel, who is a resident of UK, owning an entity by name GCP UK Limited. This Court declined to issue a direction to recall the LOC. But, reserved liberty to the petitioner to submit a request for withdrawal of LOC issued against him. Therefore, two representations were submitted by the petitioner, the latest being on 19-12-2022. Noticing certain paragraphs of the said representation assumes certain significance and is, therefore, extracted for the purpose of ready reference: "4. Thereafter, as a condition precedent to my employment conditions I was required to return to the Netherlands on or before 27-01-2022. Accordingly, I was scheduled to depart from Kempegowda International Airport, Bengaluru on 13-01-2022. Upon completing all the other formalities requ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ad further stated that your good offices had caused issuance of multiple summons calling upon me to clarify on the said issue. Thereafter, I was constrained to issue another detailed written response to clarify on the same on 11-04-2022. A copy of the written response addressed to you on 11-04-2022 is produced along with this representation as Document No.2. 9. Thereafter, during the course of the hearing of the writ petition, in the month of April, 2022 upon perusal of the LOC, the Hon'ble High Court of Karnataka observed that the LOC did not contain any forthcoming details of any of the criminal proceedings as initiated against me warranting issuance of LOC as aforesaid. Owing to which, the Hon'ble High Court of Karnataka further directed you to produce the supporting documents warranting to the issuance of the LOC against me. The said documents were produced before the Hon'ble High Court on the next date of hearing and returned back to you. Pertinently, neither my counsel nor was I allowed to peruse the aforesaid LOC or the documents produced in support of issuance of the same. 10. When things stood thus, during the pendency of the writ petition, your good offi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stay beyond the permissible limit outside of the Netherlands, the Immigration Authorities in the Netherlands have initiated the process to cancel my residence permit. Cancellation of my residence permit would automatically compel my Employer to permanently terminate my employment since the continued operation of the resident permit is a pre-requisite for having work permit. (E) My Employer has stated that I will face further consequences with respect to my employment if I do not report back to the Netherlands on or before January 2023. I apprehend that if I am unable to travel back to the Netherlands by then, I will face termination of my employment. All of the above consequences shall have irreparable consequences for the rest of my life and that of my family members. In such circumstances, I would once again urge your good offices to lift the LOC issued against me. Due to the grave and imminent consequences as mentioned above, I kindly request you to consider my representation within a period of two weeks from today." The petitioner submits that his employment will be lost, if he is not permitted to go and join his duties and his right to livelihood ....