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2022 DIGILAW 1903 (PNJ)

Gaurav Sachdeva v. Union of India

2022-10-19

H.S. MADAAN, M.S. RAMACHANDRA RAO

body2022
JUDGMENT M.S. Ramachandra Rao, J. - CM-15212-CWP-2022 1. The petitioner is a Medical Professional and is challenging in the Writ Petition the action of Bureau of Immigration (respondent No.3) in issuing a Look Out Circular (for short 'LOC') preventing petitioner from travelling abroad in August 2022. In this CM, he contends that that he has to travel abroad as he would be conferred an award in an International Meet to be held from 29.10.2022 to 01.11.2022 at Baku in Azerbaijan and also to Canada for re-scheduling the appointment with the Canadian authorities for extension of his permanent status, by keeping the LOC in abeyance and by restraining the respondents from preventing him from travelling abroad. 2. A loan had been granted by the respondent No.2-Bank to M/s Mediciti Hospital Pvt. Ltd. prior to 2011 for which the petitioner is alleged to be a guarantor. There was default in repayment of the dues by the borrower and respondent No.2-Bank filed OA No.3086 of 2017 (Old OA No. 254 of 2012) before the Debts Recovery Tribunal-III, Chandigarh for recovery of Rs. 9,69,58,146/- from the defendants therein and an ex-parte recovery certificate was obtain on 19.05.2018 in the said OA. 3. Contending that petitioner was not served a notice under Rule 2 of Second Schedule to the Income Tax Act, 1961, petitioner filed objection petition on 31.03.2019 before the DRT-III, Chandigarh. Reply was filed by the respondent No.2 to the said objection petition on 15.09.2021. The matter is still pending before the said Tribunal. 4. The respondent-Bank addressed a letter dt. 20.11.2021 to respondent No.3 requesting for issuance of LOC against the petitioner and others merely relying on OM No.25016/10/2017-imm (PT) dt. 12.10.2018 permitting Chairman/Managing Directors/Chief Executives of all Public Sector Banks who can make a request for opening of LOCs. On the basis of the said request, an LOC No. 2021423136 was issued by respondent No.3 to prevent the petitioner from leaving India. 5. This LOC is placed on record by Sh. Satya Pal Jain, Additional Solicitor General of India, appearing for respondents No.1, 3 and 4. On the basis of the said request, an LOC No. 2021423136 was issued by respondent No.3 to prevent the petitioner from leaving India. 5. This LOC is placed on record by Sh. Satya Pal Jain, Additional Solicitor General of India, appearing for respondents No.1, 3 and 4. He has stated that copy of the LOC is not to be furnished to the person who is the subject matter of the LOC, that it is a coercive measure to make a person surrender before an Investigating Agency/Originator and the Ministry of Home Affairs issues LOCs through respondent No.3 on the basis of guidelines issued vide OM No.25016/31/2010 imm dt. 27.10.2010 and subsequent amendments. According to him, the legal liability of the action taken by Immigration authorities in pursuance to the LOC rests with the originating agency/respondent No.2 and that an LOC can be modified/deleted/withdrawn by respondent No.3 only on the specific request of the authorized originator on whose request the LOC was issued. 6. The Writ Petition had been filed on 30.09.2022 and notice of motion was issued for 03.11.2022. 7. Thereafter, CM-15209-CWP-2022 was filed for pre-poning the date of hearing of Writ Petition from 03.11.2022. This application was allowed on 12.10.2022 and the hearing of the Writ Petition was pre-poned to 18.10.2022. 8. CM No.15212-CWP-2022 was filed by the petitioner seeking to travel abroad. In this application, on 12.10.2022, notice was ordered and the matter was directed to be listed today. On that day, Sh. Gaurav Goel, Advocate accepted notice on behalf of respondent No.2 and sought time to file reply. He was directed to file reply by 18.10.2022 in view of the urgency pleaded by the petitioner. 9. However, today, when the matter was listed, no reply is filed by him and on the basis of instructions issued to him, he stated that the borrower had been declared as a Willful Defaulter on 30.06.2012 by the competent authority and a complaint was lodged on 27/29.09.2011 before the CBI, BSFC New Delhi. No material is placed by him to show that any FIR was registered against the petitioner on the basis of the said complaint for committing any cognizable offence. He sought further time to file reply. 10. Since the petitioner has to travel before 29.10.2022 to Baku and since the Court is closed for Diwali Vacations from 22.10.2022 to 26.10.2022, this application is being considered today. 11. He sought further time to file reply. 10. Since the petitioner has to travel before 29.10.2022 to Baku and since the Court is closed for Diwali Vacations from 22.10.2022 to 26.10.2022, this application is being considered today. 11. Counsel for the petitioner contended that the right go abroad falls within the scope of personal liberty guaranteed under Article 21 of the Constitution of India (Maneka Gandhi Vs. Union of India, (1978) 1 SCC 248 and Satish Chandra Verma Vs. Union of India, (2019) SCC online SC 2048), that this Court had held in Noor Paul Vs Union of India and Others[3], Poonam Paul Vs. Union of India, 2022 SCC Online P&H 1176 (DB) and Raman Kumar Mehta Vs. Union of India and Others[5] that to deny a person such a right requires a very high threshold, that recourse to LOCs is to be had only where persons are involved in Cognizable offences and who are evading arrest and not appearing in the trial Court despite NBWs and other coercive measures as per OM dt.27.10.2010, that where the subject of LOC is not involved in any cognizable offence, he or she cannot be detained/arrested or prevented from leaving the country and the originating agency can only request that they be informed about the arrival/departure of the subject in such cases. It was further contended that this Court had, in the said decisions had that though LOCs are permitted to be issued at the instance of Managing Directors and Chief Executive Officers of Public Sector Banks vide OM dt. 04.10.2018, the amount of default by a person which would not be in the economic interest of India, or in the larger public interest, is not indicated in the OMs; in the absence of such a prescription in the OMs, the fundamental right to travel abroad guaranteed by Article 21 of the Constitution of India cannot be curtailed; that non-supply of copies of the LOC to the subjects of the LOC at the time of preventing such persons from travelling abroad and denial of a post decisional hearing to explain why such LOC issued against them should not be withdrawn/cancelled by the Bureau of Immigration is arbitrary and illegal and it cannot be said to have followed fair, just and reasonable procedure to deprive the subject of the LOC of his or her fundamental right to travel abroad. [3] CWP No. 5492 of 2022 dt.05.04.2022 [5] CWP No. 19018 of 2022 dt.17.10.2022. 12. Prima facie, we find force in the said contentions. In the instant case, admittedly no FIR has been registered against the petitioner accusing him of committing a cognizable offence. The petitioner is alleged to be only a guarantor and he is not the borrower. He is disputing his capacity as a guarantor and is also alleging that without serving notice on him an ex parte recovery certificate was obtained and he has taken steps before the DRT-III, Chandigarh to have it set aside way back in 2019 and those proceedings are still pending. He cannot be accused of evading any judicial process at all prima facie. 13. Therefore, subject to the petitioner depositing within one week an FDR for Rs.10,00,000/- before the Registrar General of this Court valid for one year, he is permitted to travel abroad for a period of 6 months; on his return to India and production of his passport before the Registrar General, the said FDR would be returned to him; in default of the petitioner returning to India within the said period, the same shall stand forfeited. This order be informed by respondent No.2 to respondent No.3 and the respondent No.3 shall instruct all his officials to permit the petitioner to travel abroad. 14. Reply be filed by the respondent No.2 within 4 weeks in the CM-15212-CWP-2022 as well as in the Writ Petition also.