TMI Blog2019 (11) TMI 1779X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigation of a gargantuan economic offence in progress. Sufficiency or otherwise of such materials for the issuance of a Look Out Circular is clearly outside the ken of judicial review under Article 226 of the Constitution of India. To permit the petitioner to leave India by lifting the Look Out Circular just because he has, so far, been co-operating with the Investigating Agencies, is tantamount to locking the stable after the horse has bolted. It will defy all credulity if this Court were to believe that the petitioner will return to India obediently and submit himself to legal process in strict adherence to his undertaking affidavit dated 12.08.2019 submitted to this Court. Coming to the contention of Mr. Satish Parasaran qua the petitioner's fundamental right guaranteed under Article 21 of the Constitution of India to go abroad, be it noted that, the right is not absolute, but, is subject to valid restrictions. Petition dismissed. - W.P. No.19743 of 2019 and W.M.P. Nos.19257, 19262, 19264 and 19266 of 2019 - - - Dated:- 6-11-2019 - THE HON'BLE MR. JUSTICE P.N. PRAKASH For the petitioner : Mr. Satish Parasaran, Sr. Counsel for M/s. Vijayan Subramani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been issued against him. Hence, he addressed a representation dated 23.02.2019 to the C.B.I. and an advocate's notice dated 09.02.2019 to the Enforcement Directorate followed by a representation dated 06.03.2019 to the Joint Director of Enforcement, New Delhi, requesting them to withdraw the Look Out Circular and to permit him to go abroad. Since the Look Out Circular was not withdrawn, he has filed the instant writ petition. 6 On notice, the C.B.I. and Enforcement Directorate have filed their counter affidavits setting out the cases against the petitioner and justifying the issuance of the Look Out Circular. 7 Heard Mr. Satish Parasaran, learned Senior Counsel representing Mr.Vijayan Subramanian, learned counsel on record for the petitioner, Mr.G.Rajagopalan, learned Additional Solicitor General appearing for the Union of India, Mr. K. Srinivasan, learned Special Public Prosecutor for CBI Cases and Mr. N. Ramesh, Special Public Prosecutor for the Enforcement Directorate. 8 The C.B.I. and the Enforcement Directorate have not denied the averments in paragraph no.12 of the petitioner's affidavit filed in support of the writ petition, wherein, the petitioner has s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Siva Group of Companies. The investigation is said to be in progress. In fact, the Enforcement Directorate has attached properties worth Rs.224.6 crores and adjudication under the PMLA is pending. 12 Apart from the aforesaid two cases, the Enforcement Directorate, Mumbai, registered a case in ECIR/MBZO-I/02/2019 under the PMLA and a complaint bearing no.6 of 2019 has been filed before the Special Court for PMLA Cases under Sections 44 and 45 of the PMLA against the petitioner and others in the Designated Court for PMLA Cases, Greater Mumbai. This information has been provided by the Enforcement Directorate in their additional affidavit dated 20.09.2019. Coming to know of this prosecution, the petitioner appeared before the Special Court for PMLA Cases, Mumbai and has been released on bail on 01.10.2019. The operative portion of the bail order reads as under: ORDER Accused No.7 C. Sivasankaran be released on bail on his executing PR bond in the sum of Rs.1 lakh with one or more sureties in the like amount. Accused No.7 shall not tamper with the prosecution evidence in any manner. Accused No.7 shall attend the office of complainant/ED as and when require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a diplomat of the Seychelles Republic. He is not the Ambassador of the Seychelles Republic in India. Article 31 of the Vienna Convention will apply only to a diplomatic agent in the receiving State. A diplomatic agent is defined under Article 1(e) of the Vienna Convention in the following terms: (e) A diplomatic agent is the head of the mission or a member of the diplomatic staff of the mission. (emphasis supplied) A close reading of the aforesaid definition would indicate that the petitioner does not fall under either of the categories set out in Article 1(e). Hence, Article 31 of the Vienna Convention has no application to the case of the petitioner. Article 31, ibid, will not apply even in respect of a diplomatic agent in the receiving State, if he were to indulge in any professional or commercial activity outside his official functions. It is no part of the official functions of the petitioner to take loans from the IDBI Bank and then engage in money laundering. 15 It is fairly well settled that the issuance and withdrawal of a Look Out Circular is guided by the Office Memorandum dated 27.10.2010 issued by the Government of India, accepting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut, merely a guideline for the officers to follow while making a request to the Central Government for the issuance of a Look Out circular. At this juncture, it may be apropos to extract paragraph 8(j) of the Office Memorandum dated 27.10.2010: (j) In exceptional cases, LOCs can be issued without complete parameters and / or case details against CI suspects, terrorists, antinational elements, etc. in larger national interest. 18 Interestingly, this Court also noticed a subsequent amendment made to paragraph 8(j) of the Office Memorandum dated 27.10.2010, that was issued vide Office Memorandum dated 05.12.2017 which reads as under: In continuation to this Ministry OM No.25016/31/2010-Imm dated 27.10.2010 and as approved by the Competent Authority, the following amendment is hereby issued: Amendment- Read as: In exceptional cases, LOCs can be issued even in such cases, as would not be covered by the guidelines above, whereby departure of a person from India may be declined at the request of any of the authorities mentioned in clause (b) of the above referred OM, if it appears to such authority based on inputs received that the departure of such pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Commissioner of Police and another 2013-2-LW (Crl.) 628 ; v judgment of this Court in M. Natarajan vs. The Regional Passport Officer, Chennai 6 and another 2012 (4) CTC 709; and vi judgment of this Court in Aravindh Narayanasamy vs. Deputy Commissioner of Police and others 2017 SCC Online Mad 36732 21 All the judgments relied upon by Mr. Satish Parasaran pertain to cases, where, the petitioners therein were Indians who had strong roots in India. For example, in Karti P. Chidambaram (supra), the C.B.I. had issued a notice dated 15.06.2017 under Section 41-A(1) and 41(1)(b), Cr.P.C. calling upon him (Karti P. Chidambaram) to appear on 29.06.2017 at 10.30 a.m. and on the very next day itself, i.e. on 16.06.2017 itself, the Look Out Circular impugned therein was issued. Bearing in mind the fact that the petitioner therein was an Indian with roots in India, the Division Bench of this Court held that the Look Out Circular was issued hurriedly and on that ground, quashed the same. In this case, the petitioner is not an Indian citizen, but, a citizen of Seychelles and is also a diplomat of that State, as claimed by him. It is true that he had appeared before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 65. Pursuant to the directions of this Court, the respondents have filed their counter affidavit. The counter affidavit does not disclose the reasons for making a request for issuance of an LOC. The impugned LOC is liable to be set aside on that ground alone. 25 In the instant case, the C.B.I. and the Enforcement Directorate have placed copious materials to show that there is an active investigation of a gargantuan economic offence in progress. Sufficiency or otherwise of such materials for the issuance of a Look Out Circular is clearly outside the ken of judicial review under Article 226 of the Constitution of India. In this context, useful reference can be made to the following passage from the judgment of the Supreme Court in H.B.Gandhi, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath Sons 1992 Supp (2) SCC 312. 8. ............ Judicial review, it is trite, is not directed against the decision but is confined to the decision making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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