Criminal Misc. No. M-1457 of 2010 v. The State of Punjab

decided on 03.12.08, by the High Court of Chattisgarh at Bilaspur, Avinash Bhosale Vs. Union of India Directorate of Revenue Intelligence, Mumbai Zonal Unit-13, Vithaldas Thackersey Marg, Mumbai, Criminal Writ Petition No. 2432 of 2007, decided on

08.10.08, by the Bombay High Court, Maneka Gandhi Vs. UOI (1978 (1) SCC, 248, Satwant Singh Sawhney Vs. D. Ramarathnam (AIR, 1967, S.C., 1836), and, Mohinder Kaur Vs. State of Punjab (2008) 4, SCC, 580 in support of his contention. He further submitted that the order Annexure P7, being illegal, is liable to be set aside.

3. On the other hand, the Counsel for the respondent, Criminal Misc. No. M-1457 of 2010 3 submitted that, the Court of Additional Sessions Judge, Kapurthala, at the time of granting anticipatory bail, to the petitioner, in the aforesaid FIR, was competent, to impound the passport. He further submitted that the provisions of Section 438 Cr.P.C., are clear that, any condition, could be imposed, by the Court, as per Section 438(2) Cr.P.C., to ensure, that the accused, does not flee from justice and the trial is not hampered. He further submitted that, the order, dated

29.10.09 (Annexure P7) declining the return of passport to the petitioner being legal and valid is liable to be upheld.

4. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be accepted, for the reasons, to be recorded, hereinafter. The petitioner, was named, as an accused, in case FIR No. 15, dated 13.02.07, Police Station Sadar, Kapurthala. Challan, under Sections 148, 336, 171-B, 188, 127, and, 506 read with Section 149, has already been presented in the Court. The question, that arises for consideration, is, as to whether, at the time of passing the order, granting anticipatory bail, the passport of the petitioner, could be impounded or not and whether the order dated

29.10.09 (Annexure P7) is illegal.

5. The passport could not be impounded and the order (Annexure P7), is illegal, as would be discussed hereinafter. For facility of reference, the provisions of Section 10 of the Act, are extracted hereunder:- “10. Variation, impounding and Criminal Misc. No. M-1457 of 2010 4 revocation of passports and travel documents. (1) The passport authority may, having regard to the provisions of sub-section (1) of section 6 or any notification under section 19, vary or cancel the endorsements on a passport or travel document or may, with the previous approval of the Central Government, vary or cancel the conditions (other than the prescribed conditions) subject to which a passport or travel document has been issued and may, for that purpose, require the holder of a passport or a travel document, by notice in writing, to deliver up the passport or travel document to it within such time as may be specified in the notice and the holder shall comply with such notice. (2) The passport authority may, on the application of the holder of a passport or a travel document, and with the previous approval of the Central Government also vary or cancel the conditions (other than the prescribed conditions) of the passport or travel document. (3) The passport authority may impound or cause to be impounded or revoke a passport or travel document,- (a) if the passport authority is satisfied that the holder of the passport or travel document is in wrongful possession thereof; (b) if the passport or travel document was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the passport or travel document or any other person on his behalf; Provided that if the holder of such passport obtains another passport, the passport authority shall also impound or cause to be impounded or revoke such Criminal Misc. No. M-1457 of 2010 5 other passport. (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; (d) if the holder of the passport or travel document has, at any time after the issue of the passport or travel document, been convicted by a court in India for any offence involving moral turpitude and in respect sentenced imprisonment for not less than two years; thereof (e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India; (f) if any of the conditions of the passport or travel document has been contravened; (g) if the holder of the passport or travel document has failed to comply with a notice under sub-section (1) requiring him to deliver up the same; (h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made. (4) The passport authority may also revoke a passport or travel document on the application of the holder thereof. Criminal Misc. No. M-1457 of 2010 6 (5) Where the passport authority makes an order varying or cancelling or varying the endorsements on, conditions of, a passport or travel document under sub-section (1) or an order impounding or revoking a passport or travel document under sub-section (3), it shall record in writing a brief statement of the reasons for making such order and furnish to the holder of the passport or travel document on demand a copy of the same unless in any case, the passport authority is of the opinion that it will not be 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 to furnish such a copy. (6) The authority to whom the passport authority is subordinate may, by order in writing, impound or cause to be impounded or revoke a passport or travel document on any ground on which it may be impounded or revoked by the passport authority and the foregoing provisions of this section shall, as far as may be, apply in relation to the impounding or revocation of a passport or travel document by such authority. (7) A court convicting the holder of a passport or travel document of any offence under this Act or the rules made thereunder may also revoke the passport or travel document: Provided that if the conviction is set aside on appeal or otherwise the revocation shall become void. (8) An order of revocation under sub- section (7) may also be made by an appellate court or by the High Court when exercising its powers of revision. (9) On the revocation of a passport or travel document under this section the holder thereof shall, without delay, Criminal Misc. No. M-1457 of 2010 7 surrender the passport or travel document, if the same has not already been impounded, to the authority by whom it has been revoked or to such other authority as may be specified in this behalf in the order of revocation. ” Section 10(3) of the Act, thus, clearly depicts, that the passport authority may impound or cause to be impounded or revoke a passport or travel document, in the situations, mentioned in the said provision. There is, therefore, specific provision, in the Act, as to which authority, can impound the passport of a person. Similar question arose, for consideration, in Suresh Nanda's case (supra), before the Apex Court, wherein, it was observed as under:- “In our opinion, even the Court cannot impound a passport. Though, no doubt, Section 104 CrPC states that the Court may, if it thinks fit, impound any document or thing produced before it, in our opinion, this provision will only enable the Court to impound any document or thing other than a passport. This is because impounding of a “passport” is provided for in Section 10(3) of the Passports Act. The Passports Act is a special law while CrPC is a general law. It is well settled that the special law prevails over the general law vide G.P. Singh's Statutory Interpretation (9th Edn., p. 133). This principle is expressed in the maxim generalia specialibus non derogant. Hence, impounding of a passport cannot be done by the Court under Section 104 CrPc though it can impound any other document or thing. Principles For the aforesaid reasons, we set aside the impugned order of the High Court and direct the respondent to hand over the passport to the appellant within a week from today. However, it shall be open to Criminal Misc. No. M-1457 of 2010 8 the respondent to approach the Passport Authorities under Section 10 or the authorities under Section 10-A of the Act for impounding the passport of the appellant in accordance with law.”

6. In Maneka Gandhi's case (supra), a seven Judge Bench of the Apex Court, held as under:- “Now, it has been held by this Court in Satwant Singh case that 'personal liberty' within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law. Prior to the enactment of the Passports Act, 1967, there was no law regulating the right of a person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to the petitioner in Satwant Singh case was struck down as invalid. It will be seen at once from the language of Article 21 that the protection it secures is a limited one It safeguards the right to go abroad against executive interference which is not supported by law; and law here means 'enacted law' or 'State law' (vide A.K. Gopalan case). Thus, no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure.”

7. In Satwant Singh Sawhney's case (supra) a five Judge Bench of the Apex Court, held as under:- “For the reasons mentioned above we would accept the view of Kerala, Bombay and Mysore High Courts in preference to that expressed by the Delhi High Court. It follows that under Article 21 of the Constitution no person can be deprived of his right to travel except according to the procedure established by law. It is not Criminal Misc. No. M-1457 of 2010 9 disputed that no law was made by the State regulating or depriving persons of such a right.”

8. In Mohinder Kaur's case (supra), while granting anticipatory bail, under Section 438 Cr.P.C., directions for seizing appellant's passport, were given, by the High Court. In these circumstances, it was held, by the Apex Court, that directions for seizing the appellant's passport, could not have been given, under Section 438 Cr.P.C. Similar principle of law, was laid down, in Pushpal Swarnkar's, and, Avinash Bhosale's cases (supra). No case, laying down the principle of law, to the contrary, was cited, by the Counsel for the respondent. The crux of the principle of law, laid down, in the aforesaid cases, was that personal liberty, within the meaning of Article 21 of the Constitution of India embraces within its ambit the right to go abroad and no person could be deprived of that right, except in accordance with the provisions of enacted law. The petitioner, in this case was granted passport, and he was, thus, legally entitled to travel abroad, on the basis of the same, subject however to the fulfillment of the conditions, provided by any Statute of holding the valid travel documents. In view of the specific provisions of Section 10(3) of the Act, empowering the passport authority, to impound the passport of a person, on the grounds, mentioned therein, the general provisions, contained in the Code of Criminal Procedure, regarding impounding of such a document, shall stand over-ridden. The personal liberty of the petitioner firstly in impounding the passport by the Court, in derogation to the Criminal Misc. No. M-1457 of 2010 10 provisions of Section 10(3) of the Act, and secondly illegally declining his request for release of the same (passport) was curtailed not in accordance with law. In view of the principle of law, laid down, in the aforesaid cases, the order dated 29.10.09 (Annexure P7), passed by the trial Court, being illegal and perverse, is liable to be set aside.

9. For the reasons recorded above, the petition, is accepted. The order dated 29.10.09 (Annexure P7), is set aside. The passport of the petitioner, which was ordered to be impounded, by the Court of Additional Sessions Judge, Kapurthala, at the time of grant of anticipatory bail, is ordered, to be released, in his favour, by the trial Court, within 15 days.

10. Any observation made in this order, shall not affect the merits of the case, or preclude the respondent, from acting, in accordance with law.

06.05.2010 Amodh (SHAM SUNDER) JUDGE