Delhi High Court
Pawanjot Kaur Sawhney vs Bureau Of Immigration & Anr. on 16 August, 2023
Author: Subramonium Prasad
Bench: Subramonium Prasad
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 16th AUGUST, 2023
IN THE MATTER OF:
+ W.P.(C) 13057/2022 & CM APPL. 34819/2023
PAWANJOT KAUR SAWHNEY ..... Petitioner
Through: Mr. Ashwani Kr. Mata, Senior
Advocate with Mr. Gaurav Varma,
Mr. Karan Gaur, Advocates with
Petitioner in person and Mr. Rohit
Jain, AR
versus
BUREAU OF IMMIGRATION & ANR ...... Respondents
Through: Mr. Anil Soni, CGSC with Mr.Gokul
Sharma, GP for R-1
Mr. Anurag Ahluwalia, CGSC with
Mr.Kaushal Jeet Kait, GP for SFIO
+ W.P.(C) 14757/2022 & CM APPL. 34814/2023
PAWANJOT KAUR SAWHNEY ..... Petitioner
Through: Mr. Ashwani Kr. Mata, Senior
Advocate with Mr. Gaurav Varma,
Mr. Karan Gaur, Advocates with
Petitioner in person and Mr. Rohit
Jain, AR
versus
BUREAU OF IMMIGRATION & ORS ...... Respondents
Through: Mr. Anil Soni, CGSC with Mr.Gokul
Sharma, GP for R-1
Mr. Anurag Ahluwalia, CGSC with
Mr.Kaushal Jeet Kait, GP for SFIO
Signature Not Verified
Digitally Signed By:HARIOM
SINGH KIRMOLIYA
W.P.(C) 13057/2022 etc. Page 1 of 18
Signing Date:19.08.2023
17:38:09
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. W.P.(C) No. 13057/2022 has been filed under article 226 of the Constitution of India by the petitioner praying for a direction to the respondents to furnish the reason for denying permission to the petitioner to travel outside India and provide copies of order/circular (including Look Out Circular)/ instructions issued against the Petitioner by the Respondents; further copies of order/instructions/mandate received from any other authority/agency/department and details of the proceedings/prosecution/order pursuant to which, such order/instructions/circulars that have been issued by the Respondents or any other authority.
2. W.P.(C) 14757/2022 has been filed for quashing the Look Out Circular dated 13.06.2022, issued by the Serious Fraud Investigation Office (SFIO).
3. Shorn of unnecessary details, facts leading to filing of the present petition are as follows:
4. The petitioner is about 75 years old and is a citizen and permanent resident of United Kingdom and has been granted registration as an Overseas Citizen of India (hereinafter referred to as OCI) Cardholder, duly approved by the respondents in the year 2011.
5. As per the petitioner, in December, 2021, she travelled to India to meet her ailing brother and stayed till August, 2022. In August, 2022, it is stated that her medical condition of the Petitioner deteriorated and she planned to return to the United Kingdom.
Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 13057/2022 etc. Page 2 of 18 Signing Date:19.08.2023 17:38:096. On 18.08.2022, upon reaching the Indira Gandhi International Airport, Delhi and on the way to boarding the flight, the petitioner was intercepted by officials of the respondent and the petitioner was informed about revocation of her permission to travel abroad.
7. From 23.08.2022 to 03.09.2022, the petitioner made representations to respondents inquiring about the specific reasons for restraining her from travelling to the United Kingdom. Being unaware of the proceedings initiated against her, the petitioner filed W.P.(C) 13507/2022 praying for directions to the respondent to provide a copy of any such notice/ Look Out Circulars that may have been issued against the petitioner and its basis, or any order that has been passed against her, impeding her travel outside India.
8. Notice was issued by this Court and Serious Fraud Investigation Office came to be impleaded in the present petition as respondent no.3.
9. It was brought to notice of this court by the respondents that an LOC dated 13.06.2022 has come to be opened against the petitioner in light of an investigation initiated by the Serious Fraud Investigation Office [hereinafter referred to as SFIO] in terms of an order of 09.03.2022 passed by the Ministry of Corporate Affairs, Government of India. The investigation is said to have been initiated in respect of the affairs of a company, namely, Net4 India Limited and its subsidiaries which include Net4 Network Services Ltd. and Pitetel Communications Pvt. Ltd and its transactions which took place during the years 2015-2016 and 2016-2017.
10. The petitioner, who has been prevented from travelling outside India, suffered a cardiac arrest on 19.09.2022 and she was admitted to Max Super Speciality hospital. The petitioner underwent a coronary angiography on Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 13057/2022 etc. Page 3 of 18 Signing Date:19.08.2023 17:38:09 19.09.2022, and a pacemaker was installed. The petitioner was discharged from hospital on 21.09.2022.
11. W.P.(C) 14757/2022 was filed by the Petitioner challenging the LOC dated 13.06.2022, issued by the SFIO. W.P.(C) 13057/2022 & W.P.(C) 14757/2022 were tagged together and were heard analogously.
12. Relying on the submissions made by the Ld. Counsel appearing for the petitioner, this court conditionally allowed the petitioner to travel abroad vide order dated 09.11.2022. The operative part of the order dated 09.11.2022 is reproduced herein below for reference:
"6. In view of the aforesaid facts, this Court is of the considered opinion that the petitioner is entitled to be granted permission to travel in the interim subject to her providing all details with respect to bank account that may be maintained and operated by her in India as well as any other foreign jurisdiction within a period of one week from today. The petitioner shall also designate an authorized representative who shall duly appear before the SFIO and attend to all summons that may be issued in the course of investigation. Additionally, the petitioner shall file an undertaking that she will render all cooperation and assistance in the investigation and hand over all records or other material which may be in her possession.
7. Subject to the aforesaid compliances being affected within a period of one week from today the petition may be called again on 28.11.2022, to review progress as also for considering the passing of orders permitting the petitioner to travel in the interim notwithstanding the existence of the LOC which stands impugned.
8. The records which were placed for the perusal of the Court in a sealed cover are handed back to Mr. Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 13057/2022 etc. Page 4 of 18 Signing Date:19.08.2023 17:38:09 Ahluwalia."
13. On 28.11.2022 when the matter came up for hearing, it was submitted by the learned Counsel appearing for the Union of India that the Petitioner is not complying with the Order dated 09.11.2022. The matter was adjourned to 13.12.2022. On 13.12.2022, this Court observed that the Petitioner has not been complying with the conditions laid down by this Court vide Order dated 09.11.2022. Relevant portion of the Order dated 13.12.2022 reads as under:
"6. On the last date of hearing, vide order dated 28th November 2022 this Court sought status report from the Petitioner, in respect of the compliance of the conditions laid down in paragraph 6 of the aforementioned order dated 9th November, 2022. Report was also sought from the Respondent. The conditions that were to be satisfied in order for the Petitioner to be permitted to travel abroad are as follows:
(i) Providing all details in respect to bank accounts that may be maintained by her in India as well as any other jurisdiction within a period of one week.
(ii) Authorised Representative shall appear before the SFIO and attend to the summons to be issued in the course of investigation.
(iii) Undertaking that she would render cooperation and assistance in investigation and handing over of records or materials which may be under her possession.
7. Today, the Court has partly heard the submissions on the application seeking permission to travel abroad. With respect to the aforementioned conditions, the Court observes as under:
Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 13057/2022 etc. Page 5 of 18 Signing Date:19.08.2023 17:38:09I. Providing all details in respect to bank accounts that may be maintained by her in India as well as any other jurisdiction within a period of one week
8. Insofar as this condition is concerned the Petitioner's stand in its status report is that the bank account details which were sought by the Respondents have been submitted by the Petitioner for a period of two years.
9. The Petitioner has refused to provide bank account statements of her own bank accounts beyond the two year period on the ground that bank account statements pertaining to the period beyond 2 years cannot be fetched online and can only be obtained by her after submitting a request upon physically visiting the concerned branch of the Bank.
10. In today's day and age, it is unbelievable for the Court to accept that banks would not issue bank account statements unless the Petitioner visits the bank personally. Most banking now-a-days is conducted online and clearly there has been non-cooperation by the Petitioner as the bank account statements beyond the 2 years period are not being provided.
II. Authorised Representative shall appear before the SFIO and attend to the summons to be issued in the course of investigation.
11. Insofar as this condition is concerned, the authorised representative who has been appointed on behalf of the Petitioner is one Mr. Himanshu Kohli , a Company Secretary (CS) who only qualified as a CS in 2020. He is present in Court today and upon being queried by the Court he submits that he has not met the Petitioner and has been engaged recently by the ld.
Counsel for the Petitioner. The Court at this stage is not satisfied with the authorised representative as he does not seem to have any knowledge of the Petitioner Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 13057/2022 etc. Page 6 of 18 Signing Date:19.08.2023 17:38:09 or her family dealings in order to extend any cooperation to the SFIO. The court clearly gets the impression that a novice has been simply engaged for showing compliance, which is merely lip service, considering the amount of public money obtained from the banks, that is alleged to have been siphoned off.
III. Undertaking that she would render cooperation and assistance in investigation and handing over of records or materials which may be under her possession.
12. This condition is a broad condition which the Court has imposed in order to ensure that all the required documents and details would be supplied by the Petitioner to the Respondents during the course of its investigation.
13. Ld. Counsel for the Respondent submits that the matter involves investigation involving a sum of Rs.738 Crores in respect of four Indian Banks and two foreign banks. The said investigation involves the companies - Net4 India Ltd., Net4 Network Services Ltd., Pitetel Communications Pvt. Ltd. and Trak Online Net India Pvt. Ltd. The said companies are all family run companies which were being operated and run by the Petitioner, her husband and her son. The investigation does not extend only to the Petitioner but also extends to all the four companies. It is further submitted that the husband of the Petitioner has passed away in 2017 and the Petitioner's son is a resident of the UK.
14. It is noted by the Court that the Petitioner had agreed to extend her cooperation in the investigation, however, as per her statements which have been placed on record, which have been shown to the Court, she claims to have no knowledge of the businesses of the aforementioned companies. Her husband having passed away, the records and other details of the Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 13057/2022 etc. Page 7 of 18 Signing Date:19.08.2023 17:38:09 companies are obviously with the Petitioner and her son.
15. On being queried by the Court, the ld. Counsel for the Petitioner is unwilling to disclose the whereabouts of the Petitioner's son, where is he engaged currently and what kind of business he is involved in. Moreover, as per the statements on record, the Petitioner is refusing to provide bank account statements of her own bank accounts beyond the two year period. Conclusion
16. As per the facts of this matter as also the statements made by the Petitioner to the authorities, it is clear that there is non-cooperation by the Petitioner. Under these circumstances, at this stage, the Court is not inclined to let the Petitioner travel abroad.
However, over the next two months, if the Petitioner fully cooperates with the SFIO, the Court is willing to reconsider the issue.
17. Accordingly, list this matter on 20th March, 2023."
14. This Order was challenged by the Petitioner herein before a Division Bench of this Court by filing LPAs No.34/2023 & 35/2023. The said LPAs were withdrawn by the Petitioner on 17.01.2023.
15. On 27.03.2023, when the matter was listed before this Court, learned Counsel for the Union of India submitted that the bank statements of the foreign bank accounts of the Petitioner have not been disclosed. The Petitioner was directed to get the bank statements and submit the same to the Respondent No.3 and the matter was adjourned to 15.05.2023.
16. A perusal of the above orders shows that the investigation in the case involving the Petitioner amounted to a sum of Rs.208 Crores in respect of four Indian Banks and two foreign banks. The companies under scanner being Net4 India Ltd., Net4 Network Services Ltd., Pitetel Communications Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 13057/2022 etc. Page 8 of 18 Signing Date:19.08.2023 17:38:09 Pvt. Ltd. and Trak Online Net India Pvt. Ltd.. These companies were alleged by the respondents to be family run companies which were being operated and run by the Petitioner, her husband and her son. This Court observed in respect of the 3 conditions laid down vide order dated 09.11.2022 that in regards to providing all details in respect of bank accounts that may be maintained by the petitioner in India as well as in any other jurisdiction, the petitioner failed to cooperate as she did not provide bank account statements beyond 2 years period. Second condition as per the order was to appoint an authorised representative that shall appear before SFIO and attend the summons to be issued in the course of investigation. This court observed that the authorised representative appointed by the petitioner seemed to have no knowledge about the petitioner and her family dealings in order to extend cooperation to SFIO. Third condition, being a broad condition, was a requirement of an undertaking from the petitioner that she would render cooperation and assistance in the investigation and in handing over the records or materials which may be under her possession. This court upon analysing the petitioner‟s statements placed on record noted that the petitioner claims to have no knowledge about the companies as named above. This court further observed that the petitioner was bound to be in possession of the records of the companies along with her son as the husband of the petitioner had expired in the year 2017 in United Kingdom. The petitioner was also, as per this Court‟s observation unwilling to provide whereabouts of her son and, also the relevant bank statements beyond the period of two years. Therefore, this Court vide order dated 13.12.2022 due to the non-cooperation extended by the petitioner, conditionally cancelled her request to travel abroad. It was concluded by this court that if the Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 13057/2022 etc. Page 9 of 18 Signing Date:19.08.2023 17:38:09 petitioner over the next two months fully cooperated with the SFIO, her request to travel abroad would be reconsidered.
17. It is a case of the petitioner stated that her appointment as a Non- Executive Director, in Net4 Network Services Ltd. and in Pitetel Communications Pvt. Ltd. and was not part of the day to-day management of the affairs of the corporate entities therefore exempting her from the definition of „Key Managerial Personnel‟ under the Companies Act.
18. It has been argued by the Ld. Counsel for the petitioner that the petitioner continuously has been according all possible cooperation to SFIO in the on-going investigation. The statement of bank accounts held by the petitioner in India and in foreign jurisdictions were duly furnished to the respondent by the authorised representative of the petitioner. Attention of this court was also drawn to the communications of the petitioner with her banks in the UK and it was pointed out that a confirmation was received by the Nationwide Bank and TSB Bank Plc that the accounts of the petitioner existing with the respective banks were opened in the year 2019. Further, it was also pointed out that on 31.01.2023 HSBC UK had communicated to the petitioner that they were unable to provide any bank statements of the account in her name as the bank account was closed in the year 2018. Thereby establishing the bonafide of the petitioner and cooperation on her part by providing all details and documents, as requested by the respondents without any ill-intent to withhold any information.
19. The Ld. Counsel for the petitioner further submitted that during the hearing on 19.10.2022 before this court, the Petitioner had volunteered to get her statement recorded by Respondent No.3 despite having suffered a cardiac attack on 19.09.2022. Pursuant to subsequent summons received, further statement of the Petitioner was also recorded by officials of Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 13057/2022 etc. Page 10 of 18 Signing Date:19.08.2023 17:38:09 Respondent No.3/ SFIO on 13.03.2023 for almost 3-4 hours at Aashlok Hospital, Safdarjung. Thereafter, in compliance with the Court‟s orders, the petitioner appointed Mr. Rohit Jain as her Authorised Representative to appear before the SFIO/ respondent no.3 and lend all cooperation in the ongoing investigation. Mr. Rohit Jain was personally known to the Petitioner for last 5- 6 years and was also privy to the personal information relating to the Petitioner, as may be required by SFIO for the purposes of investigation.
20. The Ld. Counsel has also argued that the petitioner has no involvement or knowledge about functioning of the companies as the same were managed by her late husband Mr. Amarjit Singh Sawhney. She was neither involved in the day-to-day affairs nor financial dealings of any of the companies under investigation. The petitioner was not a Key Managerial Personnel as per the Companies Act, 2013. The petitioner as per the MCA data was only appointed as a Non-Executive Director, not involved in the day-to-day affairs of Pipetel Communications Ltd. from 15.01.2017 to 23.03.2019 and in Net4 Network Services Ltd. From 11.02.2015 to 25.03.2019. Therefore, as per the Ld. Counsel, the investigation being conducted by SFIO/ respondent no.3 pertained only to the parent company Net4India Pvt. Ltd. and the petitioner not being a director or shareholder in the same company merited to be allowed to travel abroad on bonafide medical grounds. Moreover, the petitioner is stated to be estranged from her son and has no knowledge about his wareabouts and business activities.
21. The Ld. Counsel further submits that that the petitioner upon directions by this Court filed details of her immoveable assets both in India and in the U.K. along with the details of the lenders who had attached the same. The petitioner according to her affidavit has two properties owned by Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 13057/2022 etc. Page 11 of 18 Signing Date:19.08.2023 17:38:09 her, one being A4,800 sq. ft flat bearing First Floor, 70 Poorvi Marg, Vasant Vihar, New Delhi, (a joint property in the name of the petitioner‟s late husband and the petitioner), mortgaged to State Bank of India (its then subsidiary State Bank of Hyderabad) for a loan availed by Net 4 Communications Limited. The second property owned by the petitioner situated outside of India is a flat at 7 Starboard Court, bearing Flat No. 102, Block - 3, Brighton Marina Village, Brighton, UK (exclusively owned by the petitioner). The same was taken on lease on 03.10.1988. Being a guarantor to SBI, the petitioner had furnished the said property also as a collateral to SBI for a loan availed by Net4 India Limited, SBI UK is holding equitable mortgage of said property.
22. The Ld. Counsel for the petitioner submits that the petitioner has cooperated in every mode possible with the respondent no.3/ SFIO, in accordance with the orders passed by this Court and it is at this juncture a bonafide urgent need of the petitioner, as per the medical prescriptions placed on record, to travel to the U.K. to get the pacemaker re-installed in her heart, as the earlier pace-maker which was installed in India, has shifted from its place. The petitioner is also undergoing Psychiatric and Neuro treatment for depression, stress, anxiety, suicidal thoughts and memory loss. The cost of the surgery as per the doctors is approximately 17-18 lakhs in India, whereas the petitioner being a UK Citizen, is entitled to free treatment under the National Health Scheme by the UK Government. Further, it is submitted that the petitioner has no residence and familial support in India and has been residing for the past one year with her nephew‟s family.
23. Ld. Counsel for the petitioner further submits that the investigation is till date at a nascent stage where complete documentation is also not available to summon the concerned officials. The Look Out Circular was Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 13057/2022 etc. Page 12 of 18 Signing Date:19.08.2023 17:38:09 illegally issued in absence of any material on record to establish the involvement of Petitioner in the alleged transactions. No criminal proceedings / trial initiated by Respondent No.3 or any other law enforcement authority is pending before any Court against the Petitioner nor is it the case of Respondents that the Petitioner has evaded any criminal proceedings / court summons / warrants issued by any Court.
24. Ld. Counsel appearing for the Union of India submits that the petitioner was appointed a director in the company Net4 Network Services Limited on 11.02.2015 and she is still continuing as a director in the said company. The petitioner was also appointed as a director in Pipetel Communication Pvt. Ltd and resigned on 25.03.2019. Both of these companies are a subsidiary of Net4 India Limited. It is submitted by the Ld. Counsel that LOC against the petitioner is in existence and investigation in the entire case is underway. Further, the conduct of the Petitioner is non- cooperative and the petitioner's daughter Ms. Biba Sawhney resides in United Kingdom & the properties of the petitioner in India have not been identified, therefore there is a strong apprehension that if the petitioner is allowed to leave the country she may never come back. The presence of the petitioner will be required in India for further investigation by SFIO and hence should not be allowed to travel abroad.
25. It has been argued by the Ld. Counsel appearing for respondent no.3/SFIO that MCA vide its Order dated 09.03.2022 authorized SFIO to investigate into the affairs of Net 4 India Limited and its Subsidiaries/Associates Net4 Networks Private Limited and Pipetel Communications Private Limited under section 212 (1) (c) of the Companies Act, 2013. The directors of the companies included the petitioner, her now deceased husband- Mr. Amarjit Singh Sawhney and her son-Mr. Jasjit Singh Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 13057/2022 etc. Page 13 of 18 Signing Date:19.08.2023 17:38:09 Sawhney. As per MCA-21 website, the petitioner was a director with Net4 Network services Ltd. and with Pipetel Communications Pvt. Ltd. The details of debt exposure and money laundered by the petitioner‟s companies have been stated in a report placed before this court a sealed cover as the investigation is ongoing. The investigation is in a crucial stage where financial data, banking data and other relevant information is being analysed. As per investigation conducted by SFIO, MCA data shows that the petitioner attended meetings as a director in Net4 Services Ltd. and in Pipetel Communication Pvt. Ltd. and had even discharged functions as an Executive Director, in contravention of submissions made by the petitioner that she was only a Non-Executive Director and had no role to play in the day-to-day affairs and financial dealings of the companies.
26. The Ld. Counsel for the respondent no.3 referred to the details of certain bank accounts held by the petitioner in India which were not disclosed by the petitioner before SFIO, all of which is detailed in the sealed cover report. Further, the Ld. Counsel submits that the petitioner has also been found to be a signatory to agreements on behalf of one of the companies under investigation. Therefore, there is an apprehension that the petitioner might attempt in delaying the process and escape from the investigation, thereby causing damage to the larger public interest involved and thereby being a high flight risk.
27. Heard the Ld. Counsel for the parties and pursued the material on record placed before this court in both the connected writ petitions.
28. As per the material on record the petitioner is a 75 year old British Citizen and an OCI Cardholder. The present writ petitions came to be filed when the petitioner was barred at the Delhi airport from travelling out of Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 13057/2022 etc. Page 14 of 18 Signing Date:19.08.2023 17:38:09 India by the respondents and thereafter a second petition was filed for quashing of the LOC dated 13.06.2022.
29. It is an admitted fact that the petitioner has lost her husband in the year 2017 and her children are not residing in India. As per the petitioner‟s submissions she is estranged from her son and has no familial support in India. Moreover, she has no assets left in India and her residential accommodation is also in the United Kingdom.
30. It is evident to this Court from a sealed cove report submitted by respondent no.3/SFIO that the amount involved under the investigation which is alleged to be laundered is about Rs. 200 crores and the companies under investigation are Net4 India Ltd., Net4 Network Services Ltd. and Pipetel Communications Pvt. Ltd. It is an admitted fact that the petitioner was a part of these companies, at one point in time or another and hence a Look Out Circular dated 13.06.2022 was opened against her by the Respondent No.3 to investigate the laundering of money and the Petitioner‟s involvement in it. It is also apparent from perusal of the sealed cover report that the investigation is ongoing and that there are allegations the Petitioner. The sealed cover report also discloses that there are more bank accounts in India which the Petitioner has omitted to inform the SFIO. Investigations are also going on regarding siphoning off the funds to certain other enterprises other than Net4 India Ltd., Net4 Network Services Ltd. and Pipetel Communications Pvt. Ltd., in which the Petitioner has interest. The Status Report also indicates that unlike what is claimed, the Petitioner has vast experience in the field of business and she has wantonly and deliberately not revealed vital information.
31. This Court is of the opinion that at this juncture the contentions of the Petitioner that she is unaware of the companies‟ activities, the documents Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 13057/2022 etc. Page 15 of 18 Signing Date:19.08.2023 17:38:09 were signed by her at the behest of her husband and that she has no knowledge about functioning of the companies being run by her family, in which admittedly her late husband and son were directors cannot be accepted.
32. The petitioner in the present writ has challenged the actions of the respondent which barred her from travelling to the United Kingdom and thereafter vide the connected writ bearing no.14757/2022 has challenged the LOC dated 13.06.2022.
33. It is pertinent to note that the issuance of LOC is guided by principles laid down in Sumer Singh Salkan vs. Assistant Director & Ors., ILR (2010) VI Delhi 706, according to which Office Memorandum dated 27.10.2010 was issued by the Ministry of Home Affairs. The same was further amended by Office Memorandum No. 25016/10/2017 -IMM dated. 05.12.2017 which made the following additions to the extant guidelines:
"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 person is detrimental to the sovereignty or security or integrity of India or that the same is detrimental to the bilateral relations with any country or to the strategic and/or economic interest of India or if such person is allowed to leave, he may potentially indulge in an act of terrorism or offences against the State and/or that such departure ought not be permitted in the larger public interest at any given point of time".Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 13057/2022 etc. Page 16 of 18 Signing Date:19.08.2023 17:38:09
34. In view of the observations made by this Court in the Order dated 13.12.2022 and a perusal of the sealed cover report submitted by Respondent No.3/SFIO, it is noted that the allegations against the Petitioner are under investigation and at a crucial stage. As per the guidelines laid down by the Ministry of Home Affairs to enable a court to quash an LOC, there should be no risk in the economic interest of the country and the person should not be a flight risk which would in turn jeopardise the bilateral relations of India with any other country.
35. It is well settled that economic offences constitute a class apart and need to be visited with a different approach. The economic offence having deep-rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as a grave offence affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country (refer: Nimmagadda Prasad v. CBI, (2013) 7 SCC
466).
36. It is trite law that judicial review 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 treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself (refer: Excise and Taxation Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 13057/2022 etc. Page 17 of 18 Signing Date:19.08.2023 17:38:09 Officer-cum-Assessing Authority v. Gopi Nath & Sons, 1992 Supp (2) SCC
312).
37. The Petitioner is an OCI. Her son, who is the co-accused, is absconding and not available in India. The Petitioner does not have roots in the country. The allegation against the Petitioner is that she is actively involved in siphoning off a substantial amount of about Rs.208 crores and the investigation against the Petitioner, as is revealed from the sealed cover, is at a crucial stage. The apprehension of the SFIO that if the Petitioner is now permitted to go out of the country it would not be possible to get her in the country, cannot be said based on nil evidence or that this apprehension is unjustified. LOCs are meant to ensure that the persons who are accused of economic offences are not permitted to leave the country when there is a justified apprehension that such person will not return back to the country.
38. This court is, therefore, not inclined to quash the LOC dated 13.06.2022 and allow the petitioner to travel abroad.
39. Accordingly, the petitions are dismissed along with the pending application/s if any.
SUBRAMONIUM PRASAD, J AUGUST 16, 2023 hsk Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 13057/2022 etc. Page 18 of 18 Signing Date:19.08.2023 17:38:09