4 April 2022 1:04 PM GMT
The Delhi High Court on Monday quashed the look out circular issued by the Enforcement Directorate against journalist Rana Ayyub on the ground of it being devoid of merits as well as for infringing her human right to travel abroad and freedom of speech and expression.Justice Chandra Dhari Singh observed that the LOC was issued in haste and despite the absence of any precondition...
The Delhi High Court on Monday quashed the look out circular issued by the Enforcement Directorate against journalist Rana Ayyub on the ground of it being devoid of merits as well as for infringing her human right to travel abroad and freedom of speech and expression.
Justice Chandra Dhari Singh observed that the LOC was issued in haste and despite the absence of any precondition necessitating such a measure.
"An LOC is a coercive measure to make a person surrender and consequentially interferes with petitioner's right of personal liberty and free movement. It is to be issued in cases where the accused is deliberately evading summons/arrest or where such person fails to appear in Court despite a Non-Bailable Warrant. In the instant case, there is no contradiction by the respondent to the submission of the petitioner that she has appeared on each and every date before the Investigating Agency when summoned, and hence, there is no cogent reason for presuming that the Petitioner would not appear before the Investigation Agency and hence, no case is made out for issuing the impugned LOC," the Court said.
It added "The impugned LOC is accordingly liable to be set aside as being devoid of merits as well as for infringing the Human right of the Petitioner to travel abroad and to exercise her freedom of speech and expression. For the reasons discussed above, the impugned LOC is set aside and quashed."
The Court allowed the plea filed by Ayyub against Enforcement Directorate's action of restraining her from leaving the country, citing apprehensions of evading probe in an ongoing money laundering case.
However, observing that a balance has to be struck qua the right of the investigation agency to investigate the instant matter as well as the fundamental right of the petitioner of movement and free speech, the Court imposed the following conditions:
- The petitioner shall intimate her travel dates and detailed itinerary to the Investigation Agency forthwith along with the address of the places that the petitioner shall be visiting;
- The petitioner shall deposit an FDR to the tune of Rs. 1 lakh before the Enforcement Directorate at Mumbai;
- The petitioner shall not attempt to tamper with the evidence or influence the witnesses in any manner;
- The petitioner shall return to India on the date specified i.e. 11th April 2022; and
- The petitioner shall give an undertaking to appear before the Investigation Agency immediately on her return and on dates that might be fixed by the Investigation Agency for interrogation, if any, after the travel period.
Rana Ayyub had approached the Court challenging Enforcement Directorate's action of restraining her from leaving the country. The plea therefore prayed that she must be enabled to travel out of India, and that any order or Look Out Circular or direction preventing her from travelling abroad be quashed and set aside.
Ayyub is also scheduled to travel from London to Rome on 05.04.2022 to address the Keynote Speech at the Perugia International Journalism Festival, 2022, where she is scheduled to speak about the state of journalism in India, and then return to Mumbai on 11.04.2022 via London.
An enquiry was initiated by Mumbai Zonal Office of the Enforcement Directorate under the Foreign Exchange Management Act (FEMA) against Ayyub last year over some funds received by her from the crowd funding campaigns on Ketto platform.
It is Ayyub's case that she had ran a third crowdfunding campaign on Ketto, for the purpose of providing help for Covid-19 impacted people across India during the deadly second wave of the pandemic in the country.
Ayyub was detained on March 29, 2022 in a room adjacent to the immigration counter and was informed that the immigration officers of Bureau of Immigration were seeking clarifications regarding some "remark" on her file.
The plea thus avers that Ayyub was then informed, that the immigration officers had instructions from theEnforcement Directorate to not allow her to board her flight to London, and accordingly her immigration stamp on her passport was stamped as "Cancelled".
The plea states that when Ayyub requested the immigration officers to furnish any written communication or order barring her from travelling to attend journalism related events in London, nothing was shown her, however she was informed that the ED will be emailing summons to her, thereby forming the basis for the decision to disallow her from travelling.
According to the plea, almost two hours after Ayyu had been detained at the airport, ED emailed summons to her under The Prevention of Money Laundering Act, 2002 directing her to appear before it on April 1.
During the course of hearing today, Advocate Vrinda Grover appearing for Ayyub argued before the Court that the power to issue look out circular is an extraordinary power which has to be exercised by the executive and investigating agencies only in exceptional circumstances, in a non arbitrary manner.
"I am basing my case on records which cannot be disputed. 1.77 crores provisionally attached by ED, how can I dispose of alleged attached amounts? Why is this kind of arbitrariness in show?," Grover argued.
She added "Why I'm saying there are some extraneous considerations in play, there cannot be somebody who is cooperating more than I am. Petitioner is a renowned Journalist. Press is the fourth pillar of democracy. I ask questions, that is the job of a Free Press . Yes I have published articles including in prestigious organizations. They may be disagreeable, but can that be a ground to stop me?"
Referring to the status report filed by ED, Grover argued that the same contained no reasonable reasons and that the only reason mentioned was that there is an "apprehension".
"But apprehension cannot be a fanciful imaginary or something directly contradictory to record," Grover argued.
On the other hand, ASG SV Raju appearing for ED claimed that there was an apprehension that Ayyub will flee the country and not return back, if allowed to travel abroad.
At the outset, Justice Chandra Dhari Singh asked Raju thus "How do you defend your look out circular? It's admitted fact that whenever summon issued, she has replied, she appeared before officers. How do you say that she is avoiding investigation? Because for LOC, evidence should be satisfied."
"Anybody who wants to flee won't say that I am fleeing. Mere statement isn't enough. See the conduct, docs aren't given despite request. Money siphoned off in the name of COVID relief. Credit card details etc. not provided. Fake bills have been provided, prima facie there is a case of cheating. Therefore propensity to flee and not come back. Therefore we are saying explain, sit with us, give us statement and then go," Raju responded.
Raju emphasised that the agency wanted to interrogate Ayyub in order for her to justify the entries and explain where they had been spent. It was the case of the agency that the money entries were not spent for COVID relief, thereby alleging that Ayyub had submitted various forged bills and siphoned off monies.
At the outset, Grover responded to the allegation and remarked thus:
"I live in Bombay in a joint family with my old parents, brother, his wife and children. I had a return ticket. I work here, live here. What is there to show apprehension? Can I run away with frozen money? I am more than keen for ED to show that there is nothing hanky panky in the account. I have been cooperating."
"There has to be a difference between harassment and investigation. Why was I not summoned earlier? They want to make sure you don't speak. This harassment has to stop."
Ayyub was represented by Advocates Vrinda Grover, Soutik Banerjee, Mannat Tipnis and Devika Tulsiani.
About the Plea
The plea avers that the information sought in the summon was a copy of the information already sought by ED in an earlier summon dated January 25, 2022. It further states that the information which had been relied upon by ED in its original complaint, a Show Cause Notice has already been issued to her on March 8, 2022, for which she is due to file a detailed reply within the stipulated time frame by April 17.
"Thus the summon dt. 29.02.2022 is a clear sham exercise, and an afterthought, to try and legitimise the illegal and arbitrary action of the Respondent No. 1 on the instructions of the Respondent No. 2, to deny the Petitioner her fundamental right to travel as well as her fundamental right to freedom of speech and expression, inter-alia to speak at a journalism related event in London and then in Perugia near Rome, in Italy, regarding the gender based online violence faced by women journalists globally," the plea adds.
Accordingly, it has been argued in the plea that Ayyub had responded to each and every summon issued by the ED, and has also joined the investigation and recorded her statement and provided necessary documents. Therefore, there is nothing on record to suggest that she was evading the legal process.
"There is no cogent reason or ground for issuance of a Look Out Circular against the Petitioner as she has cooperated with the investigation throughout and has been in regular communication with the Respondent No. 2. There is no flight risk and the Petitioner has not evaded the legal process," the plea states.
Stating further that Ayyub being a journalist who speaks truth to power and is at times perceived to be "a source of some discomfort or inconvenience for the government", the plea argues that the same is no ground to deny her the right to travel abroad and exercise her freedom of speech and expression, as well as to practise her profession as a journalist.
"Dissenting voices are integral to the democratic society and polity envisaged by the Indian Constitution, and any mala fide or arbitrary action of the Respondents which unconstitutionally curbs free speech ought to be quashed and set aside by constitutional courts," the plea reads.
Title: RANA AYYUB v. UNION OF INDIA & ANR.
Citation: 2022 LiveLaw (Del) 267
Click Here To Read Order