SHAHNAWAZ MOHAMED HANIF MALANG vs UNION OF INDIA & ORS.

$~44 & 45

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision:10th July, 2024
+ W.P.(CRL) 1832/2023, CRL.M.A.16908/2023

SHAHNAWAZ MOHAMED HANIF MALANG
…..Petitioner
Through: Ms. Sangita Bhayana, Advocate.
versus
UNION OF INDIA & ORS.
…..Respondents
Through: Mr. Vineet Dhonda CGSC with Mr. Abhishrut Singh and Mr. Abhijit Singh, Advocates for R-1.
Mr. Rajesh Kumar SPP with Ms. Mishika Pandita, Advocate for CBI.

45
+ W.P.(CRL) 1864/2023, CRL.M.A.17259/2023

MOHD SALIM CHAND MANSURI
…..Petitioner
Through: Ms. Sangita Bhayana, Advocate.
versus
UNION OF INDIA & ORS.
…..Respondent
Through: Mr. Vineet Dhonda CGSC with Mr. Abhishrut Singh and Mr. Abhijit Singh, Advocates for R-1.
Mr. Rajesh Kumar SPP with Ms. Mishika Pandita, Advocate for CBI.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
1. The above two Writ Petitions under Article 226 of the Constitution of India read with Section 482 Cr.P.C have been filed for quashing of look out Circular issued against the petitioners Shahnawaz Mohamed Hanif Malang and Mohd. Salim Chand Mansuri in case FIR No.RC2202022E0011 dated 10.08.2022 and to permit the petitioners to travel abroad.
2. According to the case of the prosecution, the petitioners were allegedly intercepted on 19.12.2019 by DRI officials on behalf of Lucknow Zonal Unit while they got down at Lal Bahadur Shastri International Airport (LSBI), Varanasi, U.P. on their journey back from Sharjah. They were found in possession of 40,000 sticks of “foreign origin cigarettes” valued at Rs.6,00,000/- which were recovered from their check-in baggage. According to the petitioners, the value of the cigarettes recovered allegedly from the petitioners was not more than Rs.2,00,000/-.
3. The DRI had further alleged that in addition 10 Kg of “foreign original saffron” was also recovered from the hand bag of the petitioners.
4. It is claimed that the cigarettes, gold and saffron allegedly was allegedly recovered from certain other persons who had also travelled to LSBI Airport, Varanasi, U.P. The DRI has alleged that the petitioners were indulging in smuggling activities in connivance with three Custom Officers posted at Varanasi Airport, U.P.
5. The petitioners have submitted that the LOC is required to be closed as petitioners have been implicated falsely in the case and have been forced/coerced to sign certain blank and typed papers by the Officers of DRI which are alleged to be voluntary statements under Section 108 Customs Act, 1962. The petitioners have already retracted their statements.
6. The petitioner Mohd. Salim Chand Mansuri has valid NRI Visa for two years which had expired on 11.03.2023. He is working as Purchase Manager in Stockholm BCDG CONT LLC DUBAI, UAE. He used to travel abroad in connection with his work and nothing incriminating was recovered from his possession, as alleged by the DRI officials.
7. The petitioner Shahnawaz Mohamed Hanif Malang was doing the business of Burkhas and readymade garments and used to go abroad in this connection. He is getting the job of a Sales Supervisor in a Company in Dubai namely CAPITA INTERNATIONAL GNERAL TRADNG LLC, DUBAI, UAE. Therefore, he has to go to Dubai in connection with his job and his business.
8. The LOC is sought to be closed on the ground that the petitioners are the sole bread earner of the family. The family of the petitioner Shahnawaz Mohamed Hanif Malang comprises of his wife and two sons. The family of petitioner Mohd. Salim Chand Mansuri consists of his wife, two son and his old and ailing mother. His family would die if he is not permitted to take up his job in Dubai as he has no source of employment in Mumbai.
9. It is further claimed that the LOC has not been opened in accordance with the directions passed by Delhi High Court in Writ Petition (Crl.)1315/2008. According to the directions so issued, the LOC can be issued only against an accused who is deliberately evading arrest or is not appearing in the court despite NBWs being issued against him in a cognizable offence under IPC or other penal laws.
10. The petitioners submit that they have neither deliberately avoided their arrest nor any warrants have been issued against them by a Court of competent jurisdiction nor does they have been declared a Proclaimed Offender. Therefore, the LOC opened against the petitioners, are liable to be closed.
11. The CBI/respondent in its reply has explained that after the landing of the flight namely IX-184, OD-290 & WE-335 large quantities of foreign cigarettes, gold and saffron were recovered by the team of DRI from the illegal possession of 15 passengers including the petitioners namely Mohd. Salim Chand Mansuri and Shahnawaz Mohamed Hanif Malang. Subsequent to the registration of criminal case, CBI had requested MHA for opening Look Out Circular against the accused persons to prevent them from leaving the country. Accordingly, the Look Out Circular has been issued.
12. On 03.11.2022 petitioners Mohd. Salim Chand Mansuri and Shahnawaz Mohamed Hanif Malang had been examined by the CBI and had been asked not to leave the country without prior intimation to CBI court. The Charge Sheet has already been filed against Mohd. Salim Chand Mansuri and 12 other accused persons. On merits, the averments made by the petitioners are denied and they have opposed the closure of the Look Out Notice.
13. Submissions heard.
14. In the decision of this Court in Sumer Singh Salkan vs. Asstt. Director and Others Writ Petition (Crl.) No.1315/2008 decided on 11.08.2010, the Court has observed that :
“look-out-Circular has also been issued against the petitioner as the petitioner is an accused before the Court of M.M. and he has not appeared before the Court of M,M. If the petitioner gives an undertaking before the court for his appearance on a particular date, through his counsel, the lookout- Circular issued against the petitioner shall be withdrawn within 24 hours of giving undertaking by the petitioner.
The questions raised in the reference are as under:
“A. What are the categories of cases in which the investigating agency can seek recourse of lookout-Circular and under what circumstances?
B. What procedure is required to be followed by the investigating agency before opening a tookout-circular?
C. What is the remedy available to the person against whom such look-out-Circular has been opened?
D. What is the role of the concerned Court when such a case is brought before it and under what circumstances, the subordinate courts can
intervene?
The questions are answered as under:
A. Recourse to lOC can be taken by investigating agency in cognizable offences under IPC or other penal Laws, where the accused was deliberately evading arrest or not appearing in the trial court despite NBWs and other coercive measures and there was likelihood of the accused leaving the country to evade trial/arrest.
B. The Investigating Officer shall make a written request for LOC to the officer as notified by the circular of Ministry of Home Affairs, giving details & reasons for seeking LOC. The competent -officer alone shall give directions for opening LOC by passing an order in this respect.
C. The person against whom LOC is issued must join investigation by appearing before 1.0. or should surrender before the court concerned or should satisfy the court that lOC was wrongly issued against him. He may also approach the officer who ordered issuance of LOC & explain that lOC was wrongly issued against him. LOC can be withdrawn by the authority that issued and can also be rescinded by the trial court where case is pending
or having jurisdiction over concerned police station on an application by the person concerned.
D. lOC is a coercive measure to make a person surrender to the investigating agency or Court of law. The subordinate courts’ jurisdiction in affirming or cancelling LOC is commensurate with the jurisdiction of cancellation of NBWs or affirming NBWs.”
15. In the present Case, since the petitioners have been working abroad and there was an apprehension that they may leave the country, without prior intimation to the CBI Court. However, as stated on behalf of the respondent, the investigations have already been completed and the Charge Sheet has been filed in the Court.
16. The matter is already under trial before the learned Trial Court. The petitioners in the event of travelling abroad, have to seek the permission of the concerned Trial Court in the said proceeding. The Look Out Notice is, therefore, directed to be closed.
17. With these directions, the above two petitions are hereby disposed of.

(NEENA BANSAL KRISHNA)
JUDGE
JULY 10, 2024
va

W.P.(CRL) 1832/2023 & W.P.(CRL) 1864/2023 Page 7 of 7