Karnataka High Court
Mr Asif Hanif Thara vs Union Of India on 17 February, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
WP No. 24870 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 24870 OF 2022 (GM-RES)
BETWEEN:
1. MR. ASIF HANIF THARA
S/O HANIF KADER THARA
AGED ABOUT 48 YEARS,
OCCUPATION-BUSINESS,
AT 23, UNIK RESIDENCY,
DR. OMER SHARIF ROAD,
BASAVANAGUDI,
BENGALURU-560 004.
...PETITIONER
(BY SRI. RAJESWARA P.N., ADVOCATE)
AND:
1. UNION OF INDIA
MINISTRY OF FINANCE
Digitally signed by REPRESENTED BY ITS SECRETARY
PADMAVATHI B K
Location: HIGH DEPARTMENT OF REVENUE
COURT OF ROOM NO.46, NORTH BLCOK
KARNATAKA
NEW DELHI-110 001.
2. ASSISTANT DIRECTOR
SPECIAL TASK FORCE(ED-HQRS)
DIRECTORATE OF ENFORCEMENT
GATE NO.3, B BLOCK,
ENFORCEMENT DIRECTORATE,
PRAVARTAN BHAVAN,
APJ ABDUL KALAM ROAD,
NEW DELHI-110 011.
Page No.1 is re-typed and re-placed vide Chamber order dated 03.03.2023.
-2-
WP No. 24870 of 2022
3. ASSISTANT DIRECTOR
SPECIAL TASK FORCE(ED-HQRS)
DIRECTORATE OF ENFORCEMENT
3RD FLOOR, B BLOCK,
SHANTINAGAR,
TTMC, K H ROAD,
BENGALURU-560 027.
4. CHIEF IMMIGRATION OFFICER
BUREAU OF IMMIGRATION
BANGALORE INTERNATIONAL AIRPORT
DEVANAHALLI
BENGALURU-560 300.
...RESPONDENTS
(BY SRI. H.SHANTHI BHUSHAN ., DSGI FOR R1 AND R4;
SRI P.PRASANNA KUMAR, SPL.PP FOR R2 AND R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO-DIRECT THE
RESPONDENTS TO RECALL THE LOOKOUT CIRCULAR ISSUED
AGAINST THE PETITIONER IN CONNECTION WITH FEMA
/SUMMON/STF/2022/49-51 F.NO.T-3/STF/10/2022 ANNEXURE-
H OR ANY OTHER MATTER.
THIS PETITION, COMING ON FOR DICTATING ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
Page No.2 is re-typed and re-placed vide Chamber order dated 03.03.2023.
-3-
WP No. 24870 of 2022
ORDER
The petitioner is before this Court seeking a writ of mandamus to the respondents to recall the lookout circular issued against him in No.FEMA/SuMMON/STF/2022/49 & F.No.T-3/STF/ 10/2022 dated 11-10-2022.
2. Facts, in brief, germane for consideration of the lis, are as follows:-
The petitioner is a businessman dealing in import and export of spices and owns a firm in the name and style of 'Unik Traders'. The petitioner has also produced certain documents with regard to the tax that he pays to the Government which depict that he has paid tax of Rs.5/- crores on 9-12-2022 and therefore, contends that he is a law abiding citizen or a law abiding businessman. On 1-10-2022 the office and residence of the petitioner was searched by the 2nd respondent/Directorate of Enforcement alleging violation of the provisions of the Foreign Exchange Management Act, 1999 ('the Act'). After the conduct of said search, the petitioner receives summons on 11-10-2022 which directed the petitioner to appear on 28-10-2022 before the 2nd respondent. The -4- WP No. 24870 of 2022 petitioner submits a representation seeking time of four weeks for such appearance. This was accepted and a fresh summons was issued to the petitioner on 28-10-2022 fixing the date of appearance as 11-11-2022. The petitioner was later informed on 7-11-2022 that his appearance before the Enforcement Directorate is postponed and the next appearance would be communicated later.
3. On 12-12-2022 the petitioner and his son who claims to be a Doctor by profession entered the Bangaluru International Airport to take a flight to Doha for watching Football World Cup matches. While petitioner's son was allowed to travel the petitioner was declined such travel. It is then he was made known that his travel is restricted on account of lookout circular issued against him. The Visa stamping that was done on the petitioner's passport, as also the boarding pass were cancelled. At that point in time, the petitioner knocked at the doors of this Court in the subject petition seeking immediate travel to watch football matches at Doha. This Court permitted the petitioner to travel on filing an affidavit and an affidavit after his return; both of which were complied with by the petitioner by filing an affidavit prior to travel and on his -5- WP No. 24870 of 2022 return in terms of the travel itinerary. But, in the light of the lookout circular still hanging on the head of the petitioner he is pursuing the issue in the present petition.
4. Heard Sri P.N. Rajeshwara, learned counsel appearing for the petitioner; Sri H.Shanthi Bhushan, learned Deputy Solicitor General of India appearing for respondents 1 and 4 and Sri Prasanna Kumar, learned Special Public Prosecutor appearing for respondents 2 and 3.
5. The learned counsel appearing for the petitioner would vehemently contend that the petitioner is not an accused in any crime under the IPC or under any other law. The house of the petitioner was searched on 1-10-2022 for the alleged violation of the Act which is not penal in nature and all that can be imposed, if proved against him is only a fine. The petitioner did cooperate with the 2nd respondent and appearance of the petitioner pursuant to summons was postponed by the Enforcement Directorate itself and till date he has not been issued any fresh summons. The petitioner is a law abiding citizen and has deep roots of business in the nation and therefore would submit that lookout circular be recalled and -6- WP No. 24870 of 2022 fundamental right of the petitioner to travel abroad be restored.
6. On the other hand, the counsel representing the 2nd respondent/Enforcement Directorate would submit that the case of the petitioner is for alleged violation of the Act and also submits that there is no event which would depict that the petitioner had not cooperated with the trial. The originator now restricts its case for an intimation of travel of the petitioner and has produced original communication from the originator to the 1st respondent/Bureau of Immigration that the petitioner be permitted to travel. It is only intimation to the 2nd respondent that would be required qua the petitioner.
7. The learned Deputy Solicitor General of India appearing for the 1st respondent would submit that they are only the executants of any request from the originator i.e., the Enforcement Directorate. If the Enforcement Directorate does not require the presence of the petitioner in the nation there would be no warrant to stop the petitioner while travelling.
8. The learned counsel for the petitioner in reply to these submissions would seek to contend that even when the interim -7- WP No. 24870 of 2022 order operating in his favour, the petitioner tried to travel to Srilanka and at that point in time he was stopped at the Airport for questioning. This is in violation of the fundamental right is what the learned counsel for the petitioner would seek to emphasise and submit that even this should not be permitted to happen in the case at hand.
9. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
10. The afore-narrated facts lie in a narrow compass. The office and residence of the petitioner are searched on 10-2022 by the 2nd respondent Enforcement Directorate. The search leads to issuance of summons on 11-10-2022. Appearance of the petitioner was postponed to 11-11-2022. Again the Enforcement Directorate communicates the petitioner that his presence is postponed and a fresh communication would be sent. Even to this day, there is no fresh communication sent. These are matters on record. The petitioner was not aware of any look out circular issued against him. It is on 11-12-2022 when the petitioner wanted to travel to Doha - Qatar to watch -8- WP No. 24870 of 2022 the FIFA World Cup, he was not permitted to travel. His fundamental right to travel abroad was curtailed on the strength of a lookout circular which was made known to him on the moment when he was to board the flight. A copy of the lookout circular was also not furnished to the petitioner. It is then the petitioner knocked at the doors of this Court. This Court permitted the petitioner to travel and file affidavits of such travel and on his return. Both the affidavits have been filed by the petitioner.
11. It is the submission of the respective learned counsel for the respondents that during the pendency of this writ petition the originator and the Bureau of Immigration have exchanged e-mails which resulted in the originator communicating to the Bureau of Immigration modifying the lookout circular from "prevent subject from leaving India and inform originator" to "inform arrival/departure of subject". The original trail mail is placed for a perusal of this Court.
-9-WP No. 24870 of 2022
12. In the light of the communication so made, the petitioner cannot be stopped from travelling abroad. The respondents are hereby directed that the petitioner on the subject issue shall not be questioned nor be stopped and shall not be shown segregatory treatment. He should be permitted to travel like any other passenger, as what is now required is only an information of arrival and departure of the subject between respondents 1 and 2. Therefore, the impugned lookout circular cannot operate as an impediment to the petitioner whatsoever to leave the shores of the nation and the communication aforesaid is only between the originator and the Bureau of Immigration and therefore, it becomes an internal communication. It is for respondents 1 and 2 to communicate themselves with regard to arrival and departure of the petitioner.
13. It is trite that right to travel/travelling abroad is a fundamental right. A lookout circular cannot be issued against any subject in thin air. There has to be reason for issuance of such lookout circular. The categories on which the lookout circulars can be issued are borne out from several official memoranda issued by Union of India from time to time and
- 10 -
WP No. 24870 of 2022right to travel can be curtailed only in terms of those ingredients found in the official memoranda. The case at hand does not have a single ingredient as found in those official memoranda for issuance of a lookout circular. The petitioner is not an accused in any case under any penal law. Therefore, the very act of issuance of lookout circular against the petitioner runs counter to law or counter to the guidelines issued by the Union of India from time to time.
14. Right to travel abroad is recognized by the Apex Court to be an important basic human right apart from it being a fundamental right. The Apex Court in the case of SATISH CHANDRA VERMA v. UNION OF INDIA1 has held as follows:
"5. The right to travel abroad is an important basic human right for it nourishes independent and self-determining creative character of the individual, not only by extending his freedoms of action, but also by extending the scope of his experience. The right also extends to private life; marriage, family and friendship are humanities which can be rarely affected through refusal of freedom to go abroad and clearly show that this freedom is a genuine human right. (See : Mrs. Maneka Gandhi v. Union of India (1978) 1 SCC 248). In the said judgment, there is a reference to the words of Justice Douglas in Kent v. Dulles 357 US 116 (1958) which are as follows:
"Freedom to go abroad has much social value and represents the basic human right of great significance."" 1
2019 SCC OnLine SC 2048
- 11 -
WP No. 24870 of 2022
(Emphasis supplied) The Apex Court holds that right to travel abroad is an important basic human right of great significance. Referring to the judgment of the Apex Court in the case of MRS.MANEKA GANDHI V. UNION OF INDIA2, the Apex Court holds that refusal of such freedom to go abroad would contravene that genuine human right. Therefore the said right cannot be curtailed except in accordance with law.
15. In the light of the aforesaid communication between the 1st and 2nd respondents, the petitioner cannot be prevented or detained for the purpose of questioning or even questioned at any airport or anywhere else on the pretext of exchange of information between the respondents, the Originating Agency and the Bureau of Immigration. The Originating Agency and the Bureau of Immigration shall update on their database with regard to non-questioning of the petitioner, as is observed in the course of the order in compliance of the order. 2 (1978) 1 SCC 248
- 12 -
WP No. 24870 of 2022
16. The writ petition is disposed of with the above observations reserving liberty in the petitioner to knock at the doors of this Court in the event of any violation of this order.
Ordered accordingly.
Pending applications also stand disposed, as a consequence.
Sd/-
JUDGE JY