Shahnawaz Mohamed Hanif Malang v. Union of India

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 Digitally 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 Digitally 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 Digitally petitioner shall be withdrawn within 24 hours of giving undertaking by the petitioner. The questions raised in the reference are as under: