Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 461 (JK)

Humayoun Yousuf Jan v. State Of J&K

2009-09-16

Hakim Imtiyaz Hussain

body2009
1. This petition under article 226 of the Constitution of India read with Section 103 of the Jammu & Kashmir Constitution has been filed by one Humayoun Yousuf Jan seeking a writ of mandamus directing the respondents to consider the case of the petitioner for issuance of the passport and further direct the respondents to issue the passport in favour of the petitioner which is pending before the respondent-department. 2. The petitioner states that he is reputed business man of Kashmir and is running of a bakery under the name and style of Jan Bakers situated at Dalgate Srinagar. The petitioner who is running that shop from last more 15 years and due to his tremendous reputation and honesty in the said business, the petitioner was nominated as Central Executive member of All Kashmir Bakers and Confectionery Association which is a registered association before the Government of J&K. The father of the petitioner was a veteran politician who served community as a (sic) permanent councilor as well. During turmoil in the valley thousands of innocent persons were arrested and false and fabricated cases where registered against them. The petitioner also became the victim of this practice of the State/Security Agency and was apprehended in the month of Sept 1997, and a case under No. 130/97 u/s 7/25 A. Act was registered in Police Station Khanyar. The said charge sheet was presented before the Court of District and Sessions Judge, Srinagar and the same was transferred to the court of Ist Additional Session Judge, Srinagar. The petitioners succeeded to prove his innocence before the Hon'ble Court. The petitioner was already in possession of a passport issued by the respondent authority on 21.12.1992 which expired on 20.12.2002. The petitioner being the permanent resident of J&K State and a citizen of India applied for fresh passport after complying all the legal statutory requirements before the regional passport officer Srinagar on 17th of November, 2005. The petitioner was given the receipt which bears File No. B0012308 and bearing Key No. 66001220805. The case of the petitioner has been processed for the verification of the antecedents Character to the Field Agency but no passport has been issued in favour of the petitioner. The petitioner is not involved in any act which can become the base for denying the rights guaranteed under constitution of India and Statute of Passport Act. The case of the petitioner has been processed for the verification of the antecedents Character to the Field Agency but no passport has been issued in favour of the petitioner. The petitioner is not involved in any act which can become the base for denying the rights guaranteed under constitution of India and Statute of Passport Act. That the respondent department has failed to issue passport in favour of the petitioner resultantly the right guaranteed to the petitioner have been violated despite the fact the petitioner is not involved in any criminal activity or subversive activities Act. The action/omission of the respondents department is illegal unjustified and violate the provisions of constitution. 3. Respondent Union of India has in their reply stated that the petitioner has submitted passport application form in Passport Office, Srinagar under File No. B00 1208/05. The personal particulars form of the same was forwarded to the office of Additional DG CID for verification of character and antecedents of the petitioner. The respondents have further stated that State CID/Police which is the Nodal Agency to clear the Passport case of J&K has not favoured the case of the petitioner for Passport facilities vide letter No. CID/NR/07/1266 dated 13.08.2007. In view of this fact the respondents are unable to issue the passport in favour of the petitioner. 4. The respondents 1 to 3 have in their objections stated that passport case of the petitioner was received in CID office from concerned Passport Officer for verification of their character and antecedents as required under the provisions of Passport Act. The same was sent to field formations and a report received thereof revealed that the petitioner was found involved in case FIR No. 130/97 U/s 7/25 Arms Act and the case was produced before the court of law for judicial determination. The subject however, has been acquitted by the Hon'ble Court of Ist Additional Sessions Judge, Srinagar. The reports reveal that petitioner is Kashmir Trained Militant of J&K Liberation Front (JKLF) outfit, which is a banned, separatist organization. The aim and objective of the outfit is to overawe the Government established by law. In view of the adverse reports received from field agencies, the passport case of the petitioner was sent as "Not recommended" vide office No. 1266 dated 13.08.2007 to the concerned passport officer. Heard. I have considered the matter. 5. The aim and objective of the outfit is to overawe the Government established by law. In view of the adverse reports received from field agencies, the passport case of the petitioner was sent as "Not recommended" vide office No. 1266 dated 13.08.2007 to the concerned passport officer. Heard. I have considered the matter. 5. Learned counsel for the respondents has referred to the observations made regarding the antecedents of the petitioner in the respondents and submit that since a case was registered against the petitioner under section 7/ 25 Arms Act a passport in the circumstances cannot be granted in favour of the petitioner. 6. On consideration of the matter, I could not find any substance in the submissions as the case registered under FIR No. 130/97 U/S 7/25 A. Act has been dismissed and the petitioner has been acquitted by the Court of Ist Additional Sessions Judge, Srinagar. In these circumstances the said fact cannot be used against the petitioner to deny a passport to him. 7. Subject to other provisions of the Act of 1967, the Passport Authority can refuse to issue the passport under clause (b) of Sub Section (2) of Section (6) on any one or more of the following grounds: a) That the applicant is not citizen of India; b) That the applicant may, or is likely to, engage outside India in activities prejudicial to the sovereignty and integrity of India; c) That the departure of applicant from India may, or is likely to be detrimental to the security of India; d) That the presence of the applicant outside India, or is likely to prejudice the friendly relations of India with any foreign country; e) That the applicant has, at anytime during the period of five years immediately proceeding the date of his application, been convicted by a court of India for and offence involving moral turpitude and sentenced in respect thereof to imprisonment not less than two years. e) That proceedings in respect of an offences alleged to have been committed by the applicant are pending before a criminal court of India; g) That a warrant or summons for the appearance, or a warrant for a arrest, of the applicant has been issued by a court under any law for the time being in force or that an order prohibiting the departure from India or the applicant has been made by any such court; h) That the applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such repatriation; i) That in the opinion of Central Government, the issue of a passport or travel document to the applicant, will not be in the public interest. 8. On going through the grounds contained in the said provision I find no ground is applicable in the present case. Objections nowhere show that the petitioner is likely to engage outside the India in activities prejudicial to the sovereignty and integrity of India or that his departure from India is likely to be detrimental to the security of India. It is also not stated that presence of the petitioner outside India is likely to prejudice the friendly relations of India with any foreign country. There is no record to show that the petitioner has at any time during the period of 5 years immediately preceding the date of his application been convicted by a court of India for an offence involving moral turpitude. There are no proceedings in respect of the offences alleged to have been committed by the petitioner are pending before a criminal court at present not any warrant or summons for appearance or warrant for arrest of the petitioner has been issued by any Court. The objections are silent on these grounds as such I do not find any sufficient ground is made out to refuse issuance of passport in favour of the petitioner. The ground taken, therefore, cannot stand. 9. In these circumstances the petition is allowed. Respondents are directed to issue passport in favour of the petitioner within four weeks from the date this order is served upon them provided there is no other objection for impediment in the same. Order accordingly.