Akshaya Jain S/O Shri Suresh Chand ... vs Union Of India
2023 Latest Caselaw 6170 Raj/2

[2023:RJ-JP:30154]

          HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      BENCH AT JAIPUR

                     S.B. Civil Writ Petition No. 11800/2020

Akshaya Jain S/o Shri Suresh Chand Jain, Aged About 54 Years,

Presently Residing At House No. 314, 10-B Scheme, Gopalpura

Bye-Pass, Jaipur (Raj)
                                                                                    ----Petitioner
                                               Versus
1.         Union Of India, Through Secretary To The Government,

           Ministry For Home Affairs, North Block, New Delhi
2.         The Chief Immigration Officer, Bureau Of Immigration,

           Ministry For Home Affairs, Sanganer Airport, Jaipur
3.         Bank Of Baroda, Through The Managing Director, Bank Of

           Baroda, Baroda Bhawan, RC Dutt Road, Alkapuri, Baroda

           (Gujrat) 390007
                                                                               ----Respondents

For Petitioner(s)                   :     Mr. Dinesh Yadav with
                                          Mr. Mahendra Verma
For Respondent(s)                   :     Mr. Anand Sharma for UOI
                                          Ms. Akansha Noval for Bank



             HON'BLE MR. JUSTICE GANESH RAM MEENA

                                                Order

Date of Reserve                                    ::               October 17, 2023
Date of Pronouncement                              ::               October 19, 2023

1. The petitioner has filed this writ petition with the prayer

to issue directions to the respondents to place on record the Look

Out Circular (for short 'the LOC') issued against him and further to

quash and set aside the same and to restrain the respondents

from interferring in his air travel.

(D.B. SAW/381/2021 and 1 more have been filed in this matter. Please refer the same for further orders)

[2023:RJ-JP:30154] (2 of 9) [CW-11800/2020]

2. Counsel appearing for the petitioner submitted that

respondent No.3- Bank of Baroda issued a request on 24.09.2019

to the Dy. Director, Bureau of Immigration (BoI), for opening LOC

issued against the petitioner in view of the Office Memorandum

dated 27.10.2010 of Ministry of Home Affairs. On the said request

the respondents issued the LOC dated 24.09.2019 but it was

never communicated to the petitioner. Counsel further submitted

that when the petitioner was flying out of India for business on

01.03.2020 he was off loaded at Jaipur by the Immigration

Officials stating that a LOC has been issued against him by the

Bank of Baroda and he cannot be permitted to fly out of India.

Counsel further submitted that in-spite of asking for the LOC, it

was never served upon the petitioner. He also stated that the loan

availed by him beyond the boundaries of a Country cannot be

recovered in another Country. Therefore, the act of issuing the

LOC is illegal ab initio. Counsel further submitted that the LOC can

be issued only against a person involved in a criminal case with

cognizable offence under the Indian Penal Code. Counsel referred

Clause (H) of the Office Memorandum dated 22.02.2021. Counsel

further submitted that there is no criminal case pending against

the petitioner. Therefore, the issuance of LOC against the

petitioner is illegal, arbitrary and unjustified and the same

deserves to be quashed and set aside.

3. Counsel appearing for the petitioner in support of his

submissions has relied upon the order dated 05.12.2009 passed

by the Bombay High Court in Writ Petition (L) No. 3288 of 2019

(Gaurav Tayal Vs. Bureau of Immigration & Ors.) as also the

Judgment dated 17.08.2023 delivered by the Delhi High Court in

(D.B. SAW/381/2021 and 1 more have been filed in this matter. Please refer the same for further orders)

[2023:RJ-JP:30154] (3 of 9) [CW-11800/2020]

W.P. (C) 9841/2022 and CM Appls. 29064/2022, 30677/2023 (Mr.

Nipun Singhal Vs. Union of India & Ors.

4. Counsel appearing for the respondent Bank submitted

that apart from the persons involved in the criminal cases, the

LOC can also be issued against the persons if it appears to such

authority based on inputs received that the departure of such

person/s is detrimental to the bilateral relations with any country

or to the strategic to sovereignty or security and /or economic

interests of India and or that such departure would not be

permitted in the larger public interest at any given point in time.

Counsel further submitted that in view of provisions of Clause (J)

of the Office Memorandum dated 21.02.2021, the LOC opened

shall remain in force until and unless a deletion request is received

by the Bank of India from the originator itself. Counsel submitted

that the petitioner promoted a Company by the name of Beven

International Limited ("Borrower") and in the year 2017, the

Company through the petitioner approached the Bank of Baroda at

Hong Kong for availing the credit facility for carrying on the

business and the credit limit to the tune of UAD 1.500 million was

sanctioned by the Bank of Baroda, Hong Kong to the Borrower

Company on 15.08.2017. Counsel further submitted that the

Borrower failed to deposit the requisite amount with interest.

Counsel further submitted that the Bank of Baroda, Hong Kong

filed a bankruptcy petition against the petitioner in the High Court

of Hong Kong and the High Court of Hong Kong vide order dated

11.07.2019 adjudged the petitioner bankrupt and and appointed

the Official Receiver. Counsel also submitted that the petitioner is

conveniently trying to escape to avoid its liability, therefore, the

(D.B. SAW/381/2021 and 1 more have been filed in this matter. Please refer the same for further orders)

[2023:RJ-JP:30154] (4 of 9) [CW-11800/2020]

Bank of Baroda was left with no option except to request for

issuance of LOC against the petitioner. Counsel submitted that the

LOC was issued at the behest of the respondent Bank. Counsel

submitted that in view of the provisions contained in Clause (J) of

the Office Memorandum dated 22.02.2021, the said LOC is effect

and operation and there is no cogent ground with the petitioner to

quash and set aside the same. Counsel further submitted that if

the petitioner is allowed to go Abroad, then there is possibility

that he will not return back and will certainly adversely effect the

economic interest of the India and also the larger public interest.

Counsel submitted that the grounds of economic interest and the

larger public interest for issuance of LOC have been incorporated

in the Office Memorandum dated 05.12.2017 and the Office

Memorandum dated 04.10.2018 speaks that the guidelines enable

LOCs against persons who are fraudsters/ persons who wish to

take loans, willfully default/ launder money and then escape to

foreign jurisdictions, since such actions would not be in the

economic interests of India or in the larger public interest.

5. Counsel appearing for the respondents also relied upon

the judgment delivered by the Calcutta High Court in Mannoj

Kumar Jain and Anr. Vs. Union of India & Ors. (WPA No.

22748 of 2022) decided on June 09, 2023.

6. Considered the submissions made by the counsel

appearing for the respective parties and perused the material

available on the record.

7. During the course of arguments, on perusal of the

impugned LOC dated 24.09.2019, when this Court found that the

said LOC was to remain valid till 23.09.2020, the Court put a

(D.B. SAW/381/2021 and 1 more have been filed in this matter. Please refer the same for further orders)

[2023:RJ-JP:30154] (5 of 9) [CW-11800/2020]

query to the counsel appearing for the respondent Bank that

"Whether the said LOC was renewed or any new LOC was issued

against the petitioner?", counsel appearing for the respondent -

Union of India sought time to seek instructions from the

respondent authorities. On 17.10.2023 the counsel appearing for

the respondent Union of India placed before this Court a letter

dated 17.10.2023 issued by the Section Officer, Subsidiary

Intelligence Bureau (Ministry of Home Affairs), Government of

India, stating that one LOC exists against the petitioner which has

been issued at the behest of MD & CEO Bank of Baroda, no fresh

LOC has been issued against him thereafter. The LOC continuation

request was received from originator vide their letter dated

03.10.2020. It was also stated in the said letter that as per new

MHA LOC guidelines dated 22.02.2021, the LOC opened shall

remain in force until and unless a deletion request is received by

BOI from the originator itself and no LOC shall be deleted

automatically.

8. The letter dated 17.10.2023 has been taken on record.

On request of the respondent Bank, the LOC was issued by the

concerned authority on 24.09.2019 with the specific mention that

the LOC would remain valid till 23.09.2020. Taking into

consideration the specific mention in the LOC that it will remain

valid till 23.09.2020, when the respondents were asked that since

the LOC issued against the petitioner on 24.09.2019 has already

come to an end, under what circumstances they can restrain the

petitioner from flying Abroad. The counsel appearing for the

respondent relied upon Clause (J) of the Office Memorandum

dated 22.02.2021, which speaks as under:-

(D.B. SAW/381/2021 and 1 more have been filed in this matter. Please refer the same for further orders)

[2023:RJ-JP:30154] (6 of 9) [CW-11800/2020]

"J. The LOC opened shall remain in force until and unless a deletion request is received by BoI from the Originator itself. No LOC shall be deleted automatically. Originating Agency must keep reviewing the LOCs opened at its behest on quarterly and annual basis and submit the proposals to delete the LOC, if any, immediately after such a review. The BOI should contact the LOC Originators through normal channels as well as through the online portal. In all cases where the person against whom LOC has been opened is no longer wanted by the Originating Agency or by Competent Court, the LOC deletion request must be conveyed to BoI immediately so that liberty of the individual is not jeopardized."

9. Now the issue is that whether the LOC issued on

24.09.2019 for a period up to 23.09.2020 is still in effect and

operation or not? Counsel appearing for the respondent -Union of

India submitted that in view of Clause (J) of the Office

Memorandum dated 22.02.2021, the LOC opened shall remain in

force unless a deletion request is received and in the present case

no any deletion request was ever received and therefore, the LOC

issued on 24.09.2019 is in effect and operation. In view of the

submissions made by the counsel appearing for the respondent-

Union of India, the Court asked from the counsel appearing for the

Union of India to place on record any LOC issued in regard to any

person after new guidelines put in force vide Office Memorandum

dated 22.02.2021 because the LOC issued against the petitioner

was under the old guidelines and the period of said LOC has

already come to an end prior to issuance of the new guidelines

and in the new guidelines there is no any clause in regard to the

LOCs issued prior to the issuance of new Office Memorandum.

(D.B. SAW/381/2021 and 1 more have been filed in this matter. Please refer the same for further orders)

[2023:RJ-JP:30154] (7 of 9) [CW-11800/2020]

Copy of LOC issued in regard to one Mr. Bikram Singh Jajithia

dated 21.12.2021 was placed before this Court by the counsel

appearing for the petitioner with the clear mention that "This LOC

shall remain in force until and unless a deletion request is received

by BOI from the originator itself." Copy of the LOC dated

21.12.2021 was also taken on record.

10. The respondents are taking shelter of Clause (J) of the

Office Memorandum dated 22.02.2021 where it has been

mentioned that the LOC opened shall remain in force until and

unless a deletion request is received and no LOC shall be deleted

automatically. In the LOC issued against the petitioner on

24.09.2019 it was specifically mentioned that it is valid upto

23.09.2020 and in the subsequent LOCs issued after the new

Office Memorandum, the respondents specifically mentioned that

the LOC will remain in force until and unless a deletion request is

received. The argument of the counsel appearing for the petitioner

that in Clause (J) of the Office Memorandum dated 22.02.2021 it

has been specifically mentioned that opened LOC will remain in

force till the request for deletion is received, does not convince

this Court in regard to the LOCs issued prior to the new Office

Memorandum issued on 26.02.2021 and more particularly in the

case when the period of LOC has already come to an end prior to

issuance of the said Office Memorandum. This Court would like to

say that the word "opened" used for LOCs is in respect of the

LOCs issued after the new Office Memorandum dated 26.02.2021

or at the most for the LOCs which were in force on the date of

issuance of the said Office Memorandum but in the present case

the LOC was issued on 24.09.2019 and its period had already

(D.B. SAW/381/2021 and 1 more have been filed in this matter. Please refer the same for further orders)

[2023:RJ-JP:30154] (8 of 9) [CW-11800/2020]

come to an end on 23.09.2020. Therefore, the word "opened"

used in Clause (J) of the Office Memorandum dated 22.02.2021

does not cover the case of the LOC issued against the petitioner

on 24.09.2019.

11. On consideration of the LOC dated 24.09.2019, the

provisions contained in the Office Memorandum dated 22.02.2021

and the format of the LOC issued after the new Office

Memorandum, this Court would not hesitate in holding that the

LOC issued against the petitioner on 24.09.2019 is no more in

effect and operation because neither there is any Saving Clause in

the Office Memorandum in regard to the LOCs issued which has

come to an end prior to issuance of the new Office Memorandum

nor it was renewed at any point of time. This Court would also like

to mention that a request for continuance /opening of LOC against

the petitioner was sent by the Bank of Baroda vide letter dated

03.10.2020 to the Deputy Director of Bureau of Immigration but

no any order of continuance or opening of fresh LOC was ordered

against the petitioner. Making request for continuance / opening of

LOC dated 03.10.2020 clearly speaks that the respondents were

well aware of the fact that the LOC issued against the petitioner

on 24.09.2019 has already come to an end. The judgments cited

by the counsels appearing for the petitioner as well as

respondents are not relevant at this stage for the reason that they

are in regard to deciding the issuance of LOC on its merits and

demerits, whereas this Court has come to the conclusion that LOC

dated 24.09.2019 is no more in force for which any adjudication is

to be made on its merits.

(D.B. SAW/381/2021 and 1 more have been filed in this matter. Please refer the same for further orders)

[2023:RJ-JP:30154] (9 of 9) [CW-11800/2020]

12. In view of the discussion made above, this Court would

like to hold that the LOC issued against the petitioner on

24.09.2019 is no more effect and operation after 23.09.2020 and

therefore, no adjudication in regard to the merits and demerits of

said LOC is required to be made at this stage. The respondents

should not have retained the petitioner from flying Abroad after

23.09.2020 in view of the LOC issued against the petitioner on

24.09.2019 and thus any such action of the respondents is illegal

and arbitrary.

13. The writ petition accordingly stands disposed of as

observed above.

14. In view of the order passed in the main petition, the

stay application and pending application(s), if any, also stand

disposed of.

(GANESH RAM MEENA),J

Sharma NK-Dy. Registrar

(D.B. SAW/381/2021 and 1 more have been filed in this matter. Please refer the same for further orders)

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