BALRAM SINGH PARIHAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner is a citizen of India and holder of Passport No. A4710530 issued by the Passport Officer, Barreilly on 5-3-1998. As per Annexure 3 Notice dated 26-2-2003, the second respondent Passport Officer, Barreilly directed the petitioner to explain why his passport should not be impounded under the relevant section of the Passport Act, 1967. The ground stated in the said notice was that it had been brought to the second respondent's notice that several criminal cases had been registered against the petitioner in the different courts of law in India. In reply to Annexure 3 Notice, the petitioner sent Annexure 4 Letter dated 11-3-2003 stating that when he applied for the passport, no criminal case was pending against him and that he was not convicted and sentenced to imprisonment by any Court in India for any criminal offence. It was also stated that there was no order passed by any Court till then prohibiting the petitioner from leaving India. The petitioner also requested for a copy of any complaint received against him for the purpose of submitting detailed explanation. After considering Annexure 4 Reply, the second respondent passed Annexure 5 Order dated 2-4-2003 directing the petitioner to surrender his passport with immediate effect failing which it would be seized by the second respondent. In Annexure 5 it was stated that the passport issuing authority may impound or revoke a passport under Section 10(3)(e) of the Passport Act 1967 if it has come to his notice that a criminal case is pending against the holder of the passport before a criminal Court in India. It was further stated that as several criminal cases were pending against the petitioner before several courts of law in India, the petitioner's passport was impounded. Thereupon, the petitioner filed Annexure 6 Appeal under Section 11 of the Passport Act before the first respondent. On receipt of the appeal, the first respondent through Annexure 7 Letter dated 25-4-2003 directed the second respondent to check his record whether the passport had been issued after proper verification and to send a report with his comments to enable the first respondent to decide the appeal. The second respondent was also directed to inform whether the cases were registered and pending in the court at the time of issue of passport or were filed after issue of passport to the petitioner. The second respondent was further directed to inform whether any police authorities or Court had directed impounding of the passport and whether any individual had requested for impounding the passport. It is not known as to what report was sent by the second respondent to the first respondent. However, the petitioner's appeal was disposed of by the first respondent as per Annexure 11 Communication dated 25-10-2004. It is stated in Annexure 11 that the competent authority in the Ministry has examined the appeal carefully from all aspects and decided to restore passport to the petitioner provided there is no objection by the Court to the petitioner's travelling abroad while the Court case is still pending against him. The petitioner was also advised to contact passport Officer, Barreilly. On receipt of Annexure 11 Communication, the petitioner submitted Annexure 12 Representation dated 7-11-2004 to the Passport Officer, Barreilly stating that though several cases against him are still pending in various Courts in India, none of the Courts had objected to his travelling abroad. He also requested the second respondent to suggest what he should do in such circumstances. However, no reply was received by the petitioner from the second respondent. In the meanwhile, the petitioner proposes to participate in the Silver Jubilee Celebrations of the Gayafri Parivar (Mandir) Los Angeles on 18-6-2005. Hence, he has filed this writ petition praying for quashing Annexure 11 Order of the first respondent.

(2.) We have heard Mr. Sudhir Singh, learned counsel for the petitioner and Mr. V. B. S. Negi, Assistant Solicitor General who accepted notice for the respondents.

(3.) Having considered the materials placed on record and the submissions made by the learned counsel for the parties, we are of the view that Annexure 11 is liable to be quashed and the first respondent is liable to be directed to reconsider the petitioner's appeal and to pass fresh orders in accordance with law. Section 10(3)(e) of the Passport Act 1967 authorises the Passport authority to impound or cause to be impounded or revoke a passport or travel document 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. To invoke the power under Section 10(3) (e) it is not necessary that the proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document should have been pending at the time of issuing the passport or travel document. In other words, the said power can be invoked even if the criminal proceedings were initiated after the issue of the passport or travel document. For invoking the power under Section 10(3)(e) it is also not necessary that there should be an order by the Court prohibiting the holder of the passport from travelling abroad or directing to impound the passport or travel document. In other words, even in the absence of an order prohibiting the holder of the passport or travel document from travelling abroad or directing to impound the passport or travel document, if the passport authority is satisfied that it is necessary to impound or revoke the passport or travel document, he is entitled to do so after recording such a satisfaction. Annexure 5 Order dated 2-4-2003 was admittedly issued by the second respondent under Section 10(3)(e). But there is no specific statement in the order that he was satisfied that the passport should be impounded in view of the pendency of the criminal cases against the petitioner. In Annexure 11 Order passed by the appellate authority, there is no indication that the appellate authority is satisfied that the petitioner's passport should be impounded in view of the pendency of the criminal cases against him. On the other hand, the order indicates that the appellate authority has no objection to the petitioner travelling abroad during the pendency of the criminal cases against him. At the same time, in Annexure 11 Order the first respondent has stated that for restoring the passport facilities to the petitioner, the Court should not have any objection to the petitioner travelling abroad while the case is pending against him. In our view, Annexure 11 Order is arbitrary, unjust and illegal in the circumstances of the case. The petitioner had categorically stated that there is no order passed by any Court prohibiting him from travelling abroad or directing to impound his passport. The respondents also do not have any case that any order has been passed by any Court prohibiting the petitioner from travelling abroad or directing to impound his passport. In such circumstances, the petitioner cannot be asked to produce any order from the Court stating that the Court has no objection to the petitioner travelling abroad. When the passport authority has ample powers under Section 10(3)(e) of the Passport Act 1967 to impound the passport even in the absence of any order of prohibition by the Court, it is unnecessary and illogical to direct the petitioner to produce an order from the Court stating that the Court has no objection to the petitioner travelling abroad while the criminal cases are pending against him. In the absence of any order of prohibition by any Court of law, it was for the first respondent to consider and decide whether it is necessary to impound the passport of the petitioner on the ground that the criminal cases are pending against him. The satisfaction of the authority under Section 10(3)(e) of the Passport Act is not dependent on any order of the Court conveying no-objection to the foreign travel of the holder of the passport/ travel document. If the appellate authority was not satisfied that it was necessary to impound the petitioner's passport, he should have allowed the appeal of the petitioner and directed the second respondent to return the passport to the petitioner without imposing any such condition as stated in Annexure 11 Order.