Issuance of Look Out Circular under NDPS Act: Violation of Right to Movement

Introduction

Narcotic drugs and psychotropic substances are commonly used for an ample number of medical and scientific uses (even in that case one has to obtain the required permit or authorisation) however they cannot be used or are abused and trafficked since they could be harmful to any society. India after the enactment of the Narcotic Drugs and Psychotropic Substances Act, 1985¹ (NDPS Act) has taken a strict approach through the statutory control over narcotic drugs which has also been envisaged under Article 47 of the Indian Constitution.² It mandates that the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. It is a special Act, and it has been enacted with a view to making stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances.ces.

The same principle of preventing the use of drugs except for medicinal use was also adopted in the three drug-related international conventions, namely, the Single Convention on Narcotic Drugs, 1961, the Convention on Psychotropic Substances, 1971 and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. India has signed and ratified the abovementioned conventions.

Look out circular (LOC) is issued to make sure that an individual (accused) who is absconding or wanted by law enforcement agencies is restricted to leave the country. It is mainly used at immigration checkpoints at international airports and seaports by the immigration branch. The look out circular is issued under Section 10³ of the Passports Act, 1967 by the Ministry of Home Affairs (MHA) after considering the report provided by the Narcotics Control Bureau in the cases of NDPS.

Since the NDPS Act is a special Act passed by the legislature that has laid down its own procedure and implementation in terms of search and seizure and investigation. However, in cases of NDPS where a crime has a jail term of fewer than 7 years then investigating authorities could serve notice to the accused under Section 41(a) of the Criminal Procedure Code (CrPC)⁴ under the head “When police may arrest without warrant”. Bail provision and admissibility of the confession made by the accused under Sections 37⁵ and 67⁶ of the NDPS Act respectively have different applicability in comparison to the procedure laid down in CrPC.

Does an issuance of Look Out Circular violate Articles 19 and 21

The objective behind the NDPS Act is simply to consolidate and amend laws relating to narcotic drugs which aim to prohibit the consumption, trafficking, and cultivation of drugs; including manufacturing, distribution, sale, and purchase. Issuance of LOC in the NDPS Act is similar to that of other cases involving preventing an individual from absconding from the jurisdiction. The look out circular is different from an arrest since LOC does not necessarily lead to arrest. LOCs can be of different types. They can seek to merely restrict a person against whom it has been issued with an objective to inform the investigation agencies concerned. The performa of the LOC also contains a request to detain the individual at the local police/investigation agency, which generally leads to arrest.

It is an established law that Articles 19⁷ and 21⁸ are an integral part of the right to free movement but questioning the violation needs to answer whether there was a violation of the due procedure established by law. For instance, if the investigation agency has failed to establish any evidence against the accused therefore the procedure laid down by the law of the country includes providing the right to be heard and every other procedural law then it would defeat the purpose of Articles 19 and 21 and could violate the right to free movement.

The right to travel abroad has been held to be a fundamental right protected under Article 21 of the Constitution of India. The Supreme Court in Satwant Singh Sawhney v. D. Ramarathnam⁹, after analysing various English judgments as well as judgments passed by the various High Courts in India concluded that under Article 21 of the Constitution of India, no person can be deprived of his right to travel except according to procedure established by law.

The Supreme Court in Maneka Gandhi v. Union of India¹⁰ held that the right to travel abroad as a fundamental right guaranteed under Article 21 of the Constitution of India, vide para 35 of the said case the Supreme Court held as follows:

35. … the point of the matter is that though the right to go abroad is not a fundamental right, the denial of the right to go abroad may, in truth and in effect, restrict freedom of speech and expression or freedom to carry on a profession so as to contravene Article 19(1)(a) or Article 19(1)(g). In such a case, refusal or impounding of passport would be invalid unless it is justified under Article 19(2) or Article 19(6), as the case may be. Now, passport can be impounded under Section 10(3)(c) if the Passport Authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public. The first three categories are the same as those in Article 19(2) and each of them, though separately mentioned, is a species within the broad genus of “interests of the general public”.

Further, in Priya Parameswaran Pillai v. Union of India¹¹ the Delhi High Court held that the extent of abuse of the process was evident. The petitioner, an environmental activist, was termed an “exceptional case” as defined under the OM for indulging in “anti-national activities”. Accordingly, Ms Pillai was not informed about the LOC. The Delhi High Court held that the actions of the respondents were in violation of Ms Pillai's fundamental rights under Articles 21, 19(1)(a) and 19(1)(g) of the Constitution, and called for the withdrawal of such a LOC.

Further, in the judgment of Karti P. Chidambaram v. Bureau of Immigration¹², the Madras High Court held that it is quite clear, that it can no longer be argued that the right to travel abroad is not a fundamental right. It is, as a matter of fact, a second generation right which flows from the right to life and personal liberty conferred on the citizens, under Article 21, which can be taken away only by procedure, as established in law. While it may be true that the right to go abroad does not include the right to freedom of speech and expression; in some cases, the curtailment of the right to travel abroad could impact a citizen’s right of free speech and expression.

Also, in the judgment of Satwant Singh Sawhney v. D. Ramarathnam¹³, the Supreme Court held that the right to travel abroad was a part of personal liberty under Article 21 of the Constitution; in which Court relied on CBI v. Asif Khader¹⁴, it was submitted that there are prescribed guidelines for issuance of LOC and the respondent's case does not come under any of the requirements of the guidelines and therefore, there is no justification on the part of the petitioner in issuing a LOC which has the effect of restricting the movement of the respondent and thereby violating the right guaranteed to the respondent under Article 21 of the Constitution.

On the other side trail of judgments that favour the issuance of LOC, the Supreme Court while upholding the Madhya Pradesh Police Regulations in Gobind v. State of M.P.¹⁵ had struck a note of caution and vide para 28, observed as follows:

28. The right to privacy, in any event, will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterise as a fundamental right, we do not think that the right is absolute.

Further, in Nikesh Tarachand Shah¹⁶ the Supreme Court while considering the question of fundamental rights pertaining to life and personal liberty, held that fundamental rights, particularly Article 21 of the Constitution, were nothing less than sacrosanct and that constitutional courts would come to the aid of a person who is able to demonstrate the violation of such sacrosanct rights.

Therefore, it can be said that after all, it all depends on judicial pronouncement since considering the factual scenario on case-to-case basis, a judicial mind should be applied to whether the procedure established by law has been followed or not and if not then it could well be said that it violates Article 19 read with Article 21 of the Indian Constitution.

What circumstances urge the issuance of LOC

The Allahabad High Court in G.S.C. Rao v. State of U.P.¹⁷ has held that such LOCs cannot be issued as a matter of course, but only when reasons exist where the accused deliberately evades arrest or does not appear in the trial court. In these circumstances, it was held in G.S.C. Rao case¹⁸ that condition precedent for issuance of the LOC was absent and the same was held liable to be set aside.

Further in the judgment of Sumer Singh Salkan v. Director¹⁹, where the Delhi High Court held that the respondent could not have issued a look out circular in the absence of any material fact and evidence with the respondent to conclude that the petitioner is deliberately evading arrest/trial. In Sumer Salkan case²⁰, the following questions arose for consideration:

A. What are the categories of cases in which the investigating agency can seek recourse of look out circular and under what circumstances?

B. What is the remedy available to the person against whom such look out circular has been opened? What is the role of the court concerned when such a case is brought before it and under what circumstances, the subordinate courts can intervene?

Those questions were answered as follows:

A. Recourse to LOC can be taken by investigating agency in cognizable offences under the Penal Code or other penal laws, where the accused was deliberately evading arrest or not appearing in the trial court despite non-bailable warrants (NBWs) and other coercive measures and there was a likelihood of the accused leaving the country to evade trial/arrest.

B. The person against whom LOC is issued must join the investigation by appearing before IO 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 the issuance of LOC and 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 the case is pending or has jurisdiction over the police station concerned on an application by the person concerned.

The Delhi High Court²¹ held that “Recourse to an LOC can be taken by (an) investigating agency in cognizable offences under (the) Penal Code (IPC) or other penal laws, where the accused was deliberately evading arrest or (was) not appearing in the trial court despite non-bailable warrants and other coercive measures, and there was likelihood of the accused leaving the country to evade trial or arrest,” and thus directed the Ministry of Home Affairs to formulate guidelines for the same since it is strict in nature and misusing such stringent laws can be proved to be draconian law.

Therefore, as per the existing MHA guidelines and court directions from time to time, a look out circular can be issued in respect of a person who,

(a) is accused of a cognizable offence and is evading arrest; or

(b)is accused of a cognizable offence and is not appearing in a court for trial; or

(c)is accused of a cognizable offence and is likely to abscond or leave the country to avoid his arrest; or

(d)is an anti-national.

Conclusion

The aim and objective of the NDPS Act is to strictly prohibit the consumption, possession and trafficking of illicit drugs and psychotropic substances and commission of crime in this act would be treated severely. Thus, the investigation officer as well enjoys greater power in the sense of investigation including search and seizure and arrest. However, arrest issued under CrPC is distinctive in nature and its implementation that from look out circular since it does not restrict your movement per se but only restrict one to evade the arrest or fleeing away from jurisdiction.

It is well-settled law that Article 19 read with Article 21 is an integral part of the right to free movement but questioning the violation needs to answer whether there was a violation of the due procedure established by law. Thus, issuing a look out circular explicitly does not violate Article 19 read with Article 21 of the Indian Constitution but only if it is in violation or breach of any procedure laid down by the law. Specifically, in the case of the NDPS Act the investigation officer vests with enormous power with respect to search and seizure and submitting reports relying on which a LOC is issued thus several procedures have been laid down along with circumstances in which LOC can be issued clarified by Delhi High Court judgment and MHA guidelines. Thus, if the procedure has been followed the issuance of LOC does not violate any right since rights also come with reasonable restrictions. For example, bail provision and admissibility of the confession made by the accused under Sections 37 and 67 of the NDPS Act respectively have different applicability in comparison to the procedure laid down in CrPC. Thus, procedure laid in CrPC and the NDPS Act (special Act) is distinctive in nature and thus followed differently.