[LOC of Intimation] Citizens can't be stopped from travelling abroad unless facing cognisable offence: Delhi High Court

Look Out Circulars (LOC) issued for intimation purposes cannot be used by authorities to prevent persons from travelling abroad unless a person is facing a cognisable offence under the relevant laws, the Delhi High Court recently held [Dhruv Tewari v. Directorate of Enforcement]..Justice Mukta Gupta said that an LOC of "intimation" was meant to ensure that the investigating agency is kept in loop about the departure or arrival details of the individual. “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 order said..The Court was acting on a plea filed in a money laundering case registered by the Enforcement Directorate (ED) against the petitioner who sought withdrawal of the LOC.It referred to the Office Memorandum (OM) issued in 2010 by the Foreigners Regional Registration Office (FRRO) regarding LOCs in respect of Indians and foreigners..The relevant clause laid down 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.”.The order, therefore, underscored that the authorities using the LOC of "intimation" at the airport or any other port of departure or arrival could not use the same as a preventive LOC to restrain or detain a person on the pretext that their travel intimation was required to be given to the originating agency.“It is well settled that what cannot be done directly, cannot be done indirectly,” Justice Gupta said..It was argued that the petitioner in the present case was not named as an accused in the cases by the investigating agencies as he was admittedly a minor at the time of commission of the crimes under the IPC, Prevention of Corruption Act (PC Act) or even under Prevention of Money Laundering Act (PMLA)..In 2012-2013, seven cases were registered by the CBI against the petitioner’s grandfather, father and uncle on the allegations of commission of offences under the IPC and PC Act. His counsel argued that he was a minor during the relevant period of the alleged commission of the crime. The ED subsequently registered two cases of money laundering but the petitioner was not named as an accused in either of the ECIRs..However, when the petitioner returned to India on February 23, 2021 on completion of his studies abroad, authorities reportedly detained him at the airport for three hours on account of the LOC opened against him in the ED case. It was argued that though he had been asked to join the investigation on February 24, 2021, no summons had been issued to him..The Court observed that in the case at hand, he was neither an accused in the predicate offence nor in the two ECIRs as he was admittedly a minor at the time of commission of the purported transactions."Thus, a preventive/detention LOC leading to the detention of the petitioner was clearly unwarranted," the Court said. The FRRO counsel, on the other hand, informed the court that the petitioner’s LOC was modified from a preventive one to one of “intimation”.The Court noted that it was only when the petitioner filed the present petition that the preventive/detention LOC was converted into an intimation LOC..As the ED had already taken remedial action, the Court did not see the need to issue further directions.“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,” clarified the court..Advocates Madhav Khurana and Trisha Mittal represented the petitioner. Advocates Zoheb Hossain, Vivek Gurnani and Kartik Tayur appeared for ED.Advocates Anurag Ahluwalia, Danish Faraz Khan and Rishab Narayan represented FRRO..[Read Order]