Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Del) 1812

IN THE HIGH COURT OF DELHI AT NEW DELHI
Anoop Kumar Mendiratta, J.
Mohd Kashif - Appellant
Versus
Union Of India & Ors. - Respondents
W.P. (Crl) 2057 of 2022 & Crl. M.A. 18713 of 2022
Decided On : 18-10-2022

Advocates appeared:
Ms. Sangita Bhayana, Advocate., for the Petitioner; Mr. Manish Mohan, CGSC with Ms. Nimisha Menon, GP & Mr. Prakhar Vashitsh, Advocate., for the Union of India /Respondents No.1; Ms. Rupali Bandhopadhaya, ASC with Mr. Akshay Kumar & Mr. Abhijeete Kumar, Advocates., for the State; Ms. Sonu Bhatnagar, Sr. Standing Counsel with Ms. Anushri Narain & Ms. Venus Mehrotra, Advocates., for the Union of India/Respondents No. 2

The court emphasized the limited circumstances under which an LOC should be issued, considering its coercive nature and the impact on personal liberty and free movement.

Headnote:
LOC - Quashing of Look Out Circular - The Constitution of India, Section 482 Cr.P.C. - Customs Act, 1962
Fact of the Case:

The petitioner sought to quash the Look Out Circular (LOC) issued against him by the learned CMM, New Delhi, in relation to a case of smuggling of gold. The petitioner argued that the LOC was wrongly opened as the investigation was already over and he was not required for any further investigation. The petitioner also highlighted the potential loss of job and visa cancellation if he did not return to Dubai within a specified time period.
Finding of the Court:

The court quashed the LOC and set aside the order passed by the learned CMM, allowing the petitioner to leave abroad for a specified period, subject to conditions. The court disposed of the writ petition without expressing any opinion on the merits of the pending investigation.
Issues: The key issues revolved around the validity of the LOC issued against the petitioner, the necessity of his presence for further investigation, and the potential consequences of the LOC on his employment and visa status.
Ratio Decidendi: The court considered that an LOC is a coercive measure to ensure the surrender of a person and interferes with personal liberty and free movement. It emphasized that an LOC should be issued only when the accused is deliberately evading summons/arrest or failing to appear in court despite Non-Bailable Warrants. The court also took into account the completion of the investigation and the pending adjudication proceedings, concluding that the petitioner's presence was not required except for the adjudication proceedings.
Final Decision: The court quashed the LOC issued against the petitioner, set aside the order passed by the learned CMM, and permitted the petitioner to leave abroad for a specified period, subject to conditions.

JUDGMENT

Anoop Kumar Mendiratta, J. - Writ petition has been preferred on behalf of the petitioner under Article 226 of The Constitution of India read with Section 482 Cr.P.C. for issuance of appropriate writ, order or direction for quashing the Look Out Circular issued against petitioner and permitting the petitioner to go abroad by setting aside the order dated 17.08.2022 passed by learned CMM, New Delhi.

2. Learned counsel for the petitioner submits that the petitioner became aware of the LOC issued against him after he had moved an application for permission to go abroad before learned CMM, which was rejected on 17.08.2022. It is urged that the LOC appears to have been wrongly opened since the investigation in the case of the petitioner is already over and he is no more required for the purpose of any investigation. It is also pointed out that the petitioner is required to return to Dubai, failing which he will lose his job and his NRI VISA is liable to be cancelled. A period of six months after his arrival in India on 29.04.2022 is stated to be expiring on 29.10.2022. The opening of the LOC is also challenged relying upon the observations in Writ Petition (Crl.) 1315/2008 'Sumer Singh Salkan vs. Asstt. Director & Ors.' decided on 11.08.2010 by Delhi High Court that the LOC could be issued only against an accused who is deliberately evading his arrest or is not appearing before the learned Trial Court despite NBWs issued against him in cognizable offences under IPC or other penal laws. It is further urged that the petitioner did not receive any reply from respondent no. 2 and from the Chief Commissioner of Customs to his application dated 22.08.2022 for closing of the LOC which were sent by speed post.

3. In the counter affidavit filed on behalf of respondent no. 2, Additional Commissioner of Customs, it is submitted that the case of smuggling of 7.790 kgs Gold through baggage was booked at IGI Airport by the Customs Department. During the investigation, it appeared that the petitioner had smuggled 6 kgs Gold in the past, aided and assisted by two pax namely Syed Salman and Shazeb. The petitioner did not join the investigation in spite of repeated summons issued against him on 12.07.2021, 20.07.2021, 28.07.2021 and 23.12.2021. Thereafter, let with no option, the Deputy Commissioner (Immigration) was requested to open Look Out Circular (LOC) against the petitioner by the competent authority after due diligence and consideration. Accordingly, the Bureau of Immigration, vide letter dated 14.10.2021 informed that LOC against the petitioner has been opened. Further, on completion of investigation, a show-cause notice dated 16.02.2022 was issued to the petitioner to show-cause as to why:

'(i) Penalty should not be imposed upon him under Section 112(a), 112(b) and 114AA of the Customs Act, 1962 for such act of smuggling of seized Gold total weighing 7790 grams valued at Rs.3,35,86,195/- recovered from Syed Salman and Shazeb respectively on 20.02.2021 for his various acts of omission and commission.

(ii) Penalty should not be imposed upon him under Section 112(a), 112(b), Section 114A and 114AA of the Customs Act, 1962 for such act of smuggling of Gold total weighing 5100 grams valued at Rs.2,27,98,326/- smuggled by Syed Salman and Shazeb on 04.01.2021 and 04.02.2021 and for his various acts of omission and commission.

(iii) Custom Duty@41.25% equivalent to Rs.55,05,427/- on gold total weighing 3000 grams valued at Rs. 1,33,46,490/- i.e. collectively, 3000 grams (by Mohd. lrfan along with the Petitioner) valued at Rs.1,34,75,400/- on 12.01.2021 and collectively, 3000 grams (by Mohd. lrfan along with the Petitioner) valued at Rs.1,32,17,580/- on 12.02.2021 respectively as admitted to have been smuggled and cleared without payment of Customs duty during previous visits by Mohd. Irfan along with the Petitioner should not be demanded & recovered from him being the beneficiary of the sale proceeds of already smuggled goods under Section 28(4

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