Prathiba M. Singh, J.(Oral)

1. This hearing has been done through hybrid mode.

CM APPL. 9843/2023 (for exemption)

2. Allowed, subject to all just exceptions. Application is disposed of.

W.P.(C)-4943/2021 & CM APPL. 9842/2023(for direction)

3. The present application has been filed seeking directions. The case of the Petitioner is that he is a British citizen bearing passport no. 503856621 and is now 74 years of age. He had filed the present petition challenging the Look- out circular (‘LOC’) which was issued against him. The Respondents are the Enforcement Directorate and the other Branches of the Union of India. Vide order dated 22nd April, 2021, the Petitioner was permitted to travel abroad. The relevant portions of the said order are set out below:

“4. The Petitioner is a British citizen bearing passport no. 503856621, who is 73 years old. The Petitioner had undergone a heart transplant in 1999 and had visited doctors in the USA for his annual medical check up. It is the Petitioner’s case that he frequently visits India, on an average of two-three months in a year, for various purposes and has deep roots in India. He also has movable and immovable assets in India. He was apprehended on the night of 21st/22nd March, 2021 when he arrived in India from London. After being apprehended, summons were issued to him on 22nd March, 2021 to appear before Respondent No.3 i.e., the Directorate of Enforcement (hereinafter, ‘ED’) on the said date. It is his case that no summons were issued to him prior to the said date. He prays for suspension of the LOC and permission to travel abroad, owing to the Covid-19 pandemic in India and his precarious medical condition as no hospital is willing to admit him as he is likely to contract Covid-19. He submits that he is willing to offer security and also cooperate in the investigation.

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7. Irrespective of whether, in the present case, the said situation had occurred or not, authorities ought to be mindful of the medical condition and age of parties who are apprehended at the airport due to LOCs being issued in their name, before such a treatment is meted out to them. If any persons are apprehended, proper arrangements shall be made to place them in a hotel or some such facility so that the said persons are not inconvenienced. It would be impermissible for the authorities to treat such apprehended persons in an improper manner.

8. Insofar as the merits of this case are concerned, the letter from Mount Sinai Health System, New York has been placed on record, which confirms that the Petitioner had undergone a heart transplant in 1999. It further confirms that he has various other medical conditions, including shortness of breath, fatigue and bronchitis.

9. Considering the current pandemic situation and the fact that the Petitioner wishes to go back and consult his doctors in London or in the USA, the LOC which is stated to have been issued against the Petitioner is suspended, subject to the following conditions:

i. The Petitioner shall extend complete cooperation to the investigative agencies, provided that he is given adequate time and at least three weeks’ notice of the date on which he has to appear before the agency.

ii. The pandemic situation shall be borne in mind before physically summoning the Petitioner.

iii. The Petitioner is stated to be the karta of Mr. Sudhir Choudhrie, the HUF, which is the owner of property bearing No. 104, Sunder Nagar, New Delhi-110003. An undertaking shall be filed on record within a period of five working days to the effect that status quo in respect of the title and possession of the said property will be maintained and that the same would not be alienated and no third party interest will be created.

iv. If at least three weeks’ notice is issued to the Petitioner for appearance by the authorities, he shall extend complete cooperate in the investigation.”

4. It is submitted by ld. Counsel for the Petitioner that in view of the suspension of the LOC, the Petitioner was able to obtain proper medical treatment and he has also cooperated with the Respondents. Vide email dated 19th April, 2021 certain information was sought from the Petitioner which was provided on 10th April, 2021. Physical presence was sought by summons dated 10th September, 2021 but the Petitioner could not join the investigation. However, when further information was sought by email, the same was provided by the Petitioner. For the last almost one and half years, the Petitioner has admittedly not been summoned. Under these circumstances, it is prayed in the application, that the LOC against the Petitioner may be set aside. On behalf of the Petitioner an undertaking has also been given that his property at 104, Sundar Nagar, New Delhi,110003 ( hereinafter ‘said property’), would not be disposed of and no third party interest would be created for the period of two years during which it is expected that the investigation ought to be completed.

5. On behalf of the Respondent No. 3, the counter affidavit has been filed, deposed by Mr. Arun Kumar, Assistant Director, Directorate of Enforcement. As per the Enforcement Directorate (hereinafter ‘ED’), the investigation is at a crucial juncture and the result of overseas enquiries, which have been taken up by it in foreign jurisdictions, is awaited. According to ED, certain suspicious transactions had been initiated from the office of M/s Rolls Royce, UK which have been, further, routed and laundered. In any event, the stand of the ED is that the Petitioner has been regularly travelling to USA and to UK due to his health conditions. The relevant portions of the counter affidavit are set out below:

“13. It is submitted that pursuant to the passing of the aforesaid order, summon dated 10.09.2021 was issued to the petitioner for submission of documents and appearance before the agency on 11.10.2021. The petitioner in response submitted his reply vide letter dated 16.09.2021, however, failed to join the investigation on the date fixed.

14. That, further vide application dated 07.05.2022 the applicant sought issuance of the direction to the Respondent Department i.e. Enforcement Directorate to conduct its further interrogation qua the Petitioner via video conferencing due to his precarious medical condition.

15. It is submitted that the Petitioner vide his application dated 07.05.2022 himself admitted that he is regularly travelling to USA to consult his doctors for constant treatment and he is always flying out of UK and USA even while having complicated health situation. The above submissions of the Petitioner clearly show that the Petitioner is in the condition to travel.

16. It is submitted that present investigation is at a crucial juncture. It is submitted that the answering respondent is awaiting the result of the overseas enquiries which has been taken-up by it in foreign jurisdictions. The said enquiries pertain to the suspicious transactions emerging in the present case, which have been initiated from the office of Rolls Royce UK and have been further routed and laundered.

17. It is submitted that further examination of the petitioner will be required on receipt of documents/evidences requested from the foreign jurisdictions and office of Rolls Royce, to unearth his involvement in the instant case.

18. That, it is respectfully submitted that the petitioner is a foreign citizen having British citizenship and is residing beyond the territories of India. In such circumstances, the respondent has no other legal means but to open an LOC against the petitioner for ensuring his presence before it as and when he arrives in India. It is submitted that the same is the least restrictive means which is available to the answering respondent to ensure the presence of the petitioner before it.

19. In absence thereof, there would be no means available with the answering respondent to track his entry and exit within the territory of the country, so as to ensure his presence before the investigating agency, as and when required. Thus, it would be in the interest of justice that the LOC issued against the petitioner is continued subject to such equitable orders as may be passed by this Hon'ble Court safeguarding the interests of investigation.”

6. A perusal of the above extracts of the counter affidavit would show that further enquiry/investigation from the Petitioner would be required upon the replies being received from the foreign jurisdictions. Thus, it is clear that, at this stage, the physical presence of the Petitioner may not be required. In view thereof, this Court is of the opinion that the LOC would be liable to be quashed subject to the following conditions:

a) The undertaking of the Petitioner is recorded to the effect that the Petitioner would continue to cooperate with the investigation and as and whenever his physical presence or information is sought, he would duly comply and appear before the authorities or provide the relevant information, subject to notice period of four weeks.

b) In addition, the undertaking given by the Petitioner by way of an affidavit dated 22nd April 2021, in respect of the property, bearing no. 104, Sundar Nagar, New Delhi that he would not create any encumbrances or third party rights or mortgage the property by way of an affidavit dated 22nd April, 2021 is accepted. The said undertaking would operate till 31st March, 2025. If the ED’s investigation is not concluded by the said date or if there is need for extension of this undertaking, the ED may approach this Court by way of an application. In addition, if the ED’s proceedings are closed against the Petitioner, the Petitioner may also file an application seeking discharge of the undertaking.

Subject to the above conditions, the LOC which is operating against the Petitioner shall stand set aside. No further orders are called for. The present order shall be communicated by the ED, to the FRRO and Bureau of Immigration. If there is any breach of the conditions set out above, including non-cooperation, the ED is free to proceed in accordance with law.

7. Let the counter affidavit be brought on record.

8. With these observations, the present petition, along with all pending applications, are disposed of.

9. The next date of hearing is cancelled.