AVINASH BHOSALE Vs. UNION OF INDIA

JUDGEMENT

(1.) The Petitioner's passport has been retained, initially by the respondent No.1 and thereafter by the respondent no.2 for the last 14 months and hence the Petitioner seeks a writ of mandamus to command the respondent no.2 to return the passport by filing the present petition under Article 226 of the Constitution of India. Few facts that are relevant for adjudicating the issues involved are narrated hereinbelow.

(2.) The Petitioner along with his wife and friends had gone abroad on holidays and when the Petitioner returned back to India on 27th May, 2007 the Petitioner was charged for carrying dutiable goods on which duty was not paid as per the provisions of the Customs Act, 1962. The Petitioner was arrested by respondent No.1 Directorate of Revenue Intelligence. The Petitioner approached the Court of Additional Chief Metropolitan Magistrate, Bombay and applied for bail. The Petitioner was released on bail by the Addl. Chief Metropolitan Magistrate on the same day. The Respondent no.1 moved the Magistrate on 28th May, 2007 seeking judicial custody of the Petitioner and also prayed for grant of permission by the Court to retain the passport of the Petitioner with a view to facilitate further investigation. The Respondent no.1 had also challenged the order granting bail to the Petitioner by filing a Criminal Application in the High Court. The High Court, by its order dated 7th August, 2007 allowed the said application and cancelled the bail granted to the Petitioner. Aggrieved thereby, the Petitioner moved the Apex Court by filing Criminal Appeal bearing No.1138/07. Apex Court by an order dated 27th August, 2007 set aside the order passed by the High Court by observing that the offence concerned was bailable.

(3.) During the course of investigation, the Respondent no.1 had retained the passport of the Petitioner . The Petitioner was served with a show cause notice on 19th November, 2007 and the Petitioner replied the show cause notice. As the Petitioner was intending to travel abroad, he moved an application before the Addl. Chief Metropolitan Magistrate, seeking permission to go abroad along with his family and also sought direction against the Respondent no.1 for return of the passport. The Respondent No.1 filed its reply and opposed the application. According to the Petitioner, during the course of hearing of the said application, the Court observed that as there was no order passed by the Magistrate to retain the passport while granting bail to the Petitioner, the Petitioner should make necessary representation before the Respondent no.1 for the release of his passport. In this view of the matter, the Petitioner claims that he withdrew the application filed before the Addl. Chief M.M. seeking permission to travel abroad and for release of his passport and chose to make a representation to the Respondent no.1-Directorate of Revenue Intelligence through his advocate vide letter dated 20th December, 2007 wherein a prayer for return of the passport was made. As no decision was communicated to the Petitioner , the present Writ Petition came to be filed.