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2006 DIGILAW 1880 (DEL)

MOIZ AHMAD KHAN v. STATE (GOVT. OF NCT OF DELHI)

2006-10-13

S.N.AGGARWAL

body2006
S. N. AGGARWAL, J. ( 1 ) THE petitioner has filed this writ petition seeking to assail an order dated 22. 9. 2006 passed by the Regional Passport Authority, chandigarh declining his request for issuance of fresh passport despite directions of this Court given in petitioner's earlier writ petition being WP (Crl.) No. 1913/ 2006 on 6. 9. 2006. The petitioner has also made a prayer for directions to the passport authority to issue a fresh passport to him forthwith to enable him to travel abroad at Canada where he is gainfully employed. ( 2 ) NOTICE. Mr. Akshai Malik, Advocate for the State accepts notice of this petition on behalf of Respondent Nos. 1 and 3. Mr. S. K. Dubey, Advocate accepts notice on behalf of respondent No. 2. ( 3 ) THIS writ petition can be disposed of at admission stage itself. The petitioner has alleged that he is a permanent resident of Canada where he is gainfully employed. He is a Non Resident Indian. During the night intervening 31. 7. 2006/1. 8. 2006 while he was coming from Canada to India and reached IGI airport, his passport was checked by the Immigration people at the airport and Page nos. 3,4,33 and 34 were found missing. A case under Section 12 (3) of the Passport act, 1967 was accordingly registered against the petitioner with Police Station IGI airport. The grievance of the petitioner is that he had no hand in the missing of the pages from his passport and he does not know as to how the Page Nos. 3, 4, 33 and 34 of his passport were found missing when checked by the immigration people at igi Airport in India. The further grievance of the petitioner is that he has been falsely framed in the aforementioned case and according to him he is under constant harassment as he could not return to Canada and resume his duties there because of impounding of his passport in a false case foisted on him. ( 4 ) SECTION 12 (3) of the Passport Act, 1967 is relevant and the same is reproduced hereinbelow: "sec. 12. ( 4 ) SECTION 12 (3) of the Passport Act, 1967 is relevant and the same is reproduced hereinbelow: "sec. 12. Offences and Penalties (3) Whoever contravenes any condition of a passport or travel document or any provision of this Act or any rule made thereunder for which no punishment is provided elsewhere in the Act shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both. " ( 5 ) THE conditions relating to issuance of a passport and travel documents contained in Schedule V of the Passport Rules are also attracted and Rules 5 and 6 thereto are relevant and are reproduced hereinbelow: "5. The holder of a passport or travel documents is personally responsible for its safe custody. It must not be wilfully lost, damaged or destroyed. In case of an unintentional loss or destruction, the fact and circumstances of such loss or destruction should be immediately reported to the nearest passport authority in India or (if the holder of the passport is abroad) to the nearest Indian Mission or Post and to the local police. " "6. A passport or travel document must not be altered or mutilated in any way nor any endorsement made in it by any person other than a duly authorised official. " ( 6 ) AS per provisions contained in the Passport Act, the said Act does not provide for any specific punishment in case certain pages of passport of a person are found missing at the time of its checking by the immigration people at the airport. Hence the case of missing of pages from the passport has to be dealt with as per provisions contained under Section 12 (3) of the Act referred hereinabove which provides for sentence of imprisonment for a term which may extend upto three months or with fine which may extend to Rs. 500/- or with both. The contention is that since the Department has not put up the challan against the petitioner before the concerned Court, the petitioner is not in a position either to defend the case against him or to plead guilty so that the case against him is finished of. 500/- or with both. The contention is that since the Department has not put up the challan against the petitioner before the concerned Court, the petitioner is not in a position either to defend the case against him or to plead guilty so that the case against him is finished of. The learned Counsel for the petitioner has argued that the petitioner cannot be detained in India on account of incompetency on the part of the immigration people in not sending the petitioner for his trial for the alleged offence in which he has been falsely framed. ( 7 ) ON 6. 9. 2006, this Court vide order passed in WP (Crl.) No. 1913/2006 had passed the following order: "having regard to the facts and circumstances of the case and also keeping in view the submissions made by the learned Counsel for the parties, the respondent No. 2 is directed that if the petitioner applies to the concerned Regional Passport Authorities for grant of a fresh passport in view of his existing passport having been retained by the police in the aforementioned case registered against him, the said request shall be considered within a period of two weeks from the date of making the request and a fresh passport be issued to him, if the same is permissible in accordance with the provisions of the Indian Passport Act. This is subject to the condition of petitioner's giving an undertaking before the registrar General of this Court that he shall make himself available during the trial of the case registered against him vide aforementioned fir and that the petitioner shall also furnish a surety to the satisfaction of the Registrar General in the sum of Rs. 25,000/ -. An authenticated copy of the original passport of the petitioner impounded in the case be supplied by the Investigating Officer to the petitioner during the course of the day today itself. " ( 8 ) PURSUANT to the above directions of this Court, the petitioner applied for a fresh passport but his request was turned down by the respondents inter alia on the ground that since a case under Section 12 of the Passport Act is pending against him, the fresh passport cannot be issued in view of provisions contained in Section 10 (3) (e) of the Passport Act, 1967. ( 9 ) SECTION 10 (3) (e) of the Passport Act is reproduced hereinbelow: ". . . . if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel documents are pending before a criminal Court in India. " ( 10 ) ON a plain reading of the above provisions contained in Section 10 (3) (e), i am of the view that the passport authority can withhold issuance of a fresh passport in case a criminal case under the penal provisions is pending against the holder of a passport and not in case where he is accused of committing a technical offence as provided in Section 12 (3) of the said Act. The plea of the petitioner is that he is a Non Resident Indian and is permanently settled at Canada where he is gainfully employed. I am of the view that the petitioner cannot be detained in India only because a case under Section 12 (3) of the Passport Act is pending against him which could not be disposed of because of some overt or covert act on the part of the Immigration Department. While directions were given to the respondents for issuance of a fresh passport on 6. 9. 2006, presence of the petitioner at the time of hearing of the aforementioned case under Section 12 (3) was adequately secured by directing him to file an undertaking before the Registrar General of this Court that he shall make himself available during the trial of the case registered against him under the Passport Act and that he shall also furnish a surety to the satisfaction of the Registrar General in the sum of Rs. 25,000/ -. This part of the order has still not been complied with by the petitioner. ( 11 ) IN view of the peculiar facts and circumstances of this case brought to the notice of this Court, the Regional Passport Authority, Chandigarh is directed to issue a fresh passport to the petitioner on his earlier application itself within a period of two weeks from today subject to verifying the compliance of the conditions mentioned hereinabove and also such other formalities as required under the rules except Section 10 (3) (e) of the Passport Act. ( 12 ) THIS writ petition stands disposed of accordingly. ( 13 ) ORDER dasti under the signatures of the Court Master. ( 12 ) THIS writ petition stands disposed of accordingly. ( 13 ) ORDER dasti under the signatures of the Court Master. Writ Petition dismissed.