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2010 DIGILAW 341 (JK)

Ashaq Hussain Sheikh v. Union Of India

2010-06-05

MANSOOR AHMAD MIR

body2010
1. It is contended that the petitioner was granted passport by respondent No.2 on 23.3.1998, which expired on 22.3.2008 (annexure `A). The petitioner visited Singapore, Saudi Arabia, Malaysia, Hong kong and China, which is disclosed by the entries made in the passport. After expiry of the validity period, he applied for grant of fresh passport, came to be entertained along with bank draft of Rs.1000/- against proper receipt (annexure `B). Thereafter the respondents neither issued the passport nor informed the petitioner the reasons for its non-issuance, constrained him to lay motion on 22.4.2009 before respondent no.2 with a request to issue the passport at the earliest. The respondents did nothing, constrained the petitioner to file OWP No.442/2009, came to be disposed of vide judgment and order dated 15.5.2009 directing the respondents to consider the case of petitioner. Respondent no.2 vide letter dated 15.6.2009 (annexure `E) informed the petitioner that his case could not be considered due to the adverse report from State CID/Police Department. The petitioner questioned the said communication by the medium of OWP No.654/2009, came to be disposed of vide judgment and order dated 15.10.2009 directing the respondent-State to submit complete investigation report to Passport Officer-respondent no.2 within ten days and thereafter Passport Officer came to be directed to pass appropriate orders in terms of the mandate of Passport Act. Respondents failed to comply with the court directions, constrained the petitioner to file contempt petition no.409/2009. Respondents filed statement of facts stating that the case of petitioner was sent for re-verification to State authorities and the State authorities have submitted the report and have categorically stated that petitioner was a Pakistan trained militant and arrested in FIR No.01/1991. The CID Department has not cleared the case of petitioner, therefore, his case came to be closed vide order dated 13.11.2009. Respondent No.2 also issued an order dated 14.12.2009 refusing to grant passport in favour of petitioner. Feeling aggrieved the petitioner has questioned the said orders on the grounds taken in the writ petition in hand. 2. Respondents have filed reply. The petitioner has also filed the rejoinder. 3. In the rejoinder it is stated that the petitioner was never arrested in FIR No.01/1991 nor any case was ever registered against him or pending in any court of law. 2. Respondents have filed reply. The petitioner has also filed the rejoinder. 3. In the rejoinder it is stated that the petitioner was never arrested in FIR No.01/1991 nor any case was ever registered against him or pending in any court of law. No doubt he was arrested by the police and detained under the Public Safety Act, came to be quashed by this Court on 5.8.1992 and was released in terms of the said order. Further it is averred that the respondents issued the passport in his favour on 23.3.1998 much after 1991 and has visited so many countries and nothing adverse is alleged against him right from 1998 till today. It is averred that he never misused the passport right from 23.3.1998 till 22.3.2008. Petitioner has also annexed copies of report dated 19.5.2008 and 27.5.2008 made by Sr. Superintendent of Police, Srinagar to Inspector General of Police (CID) (annexure `R & `R1), which indicate that the petitioner was not associated with any militant organization and nothing adverse is found against him in the police records. Further petitioner is running a business which is flourishing one and he is an income tax payee. He has annexed annexure `R2 and `R3 in order to show his bonafides and the fact that he is in the business. The respondents have also not denied the reports of SSP, Srinagar. 4. In the given circumstances, the question is whether respondents can deny the issuance of passport. Section 5 of the Indian Passport Act, 1967 provides and mandates how to consider the cases for grant of passport. In terms of the mandate of said Act, the decision is to be made by the passport authority on its own. Mere receipt of adverse and unfavourable report cannot come in the way of passport authority to make a decision. No doubt the said authority has to keep in mind the intelligence report and other factors. Mere adverse police verification report per se does not disentitle a person/citizen from his legal right to have a passport. It is for the authority to make a decision while keeping in view all the facts, coupled with the fact that to receive passport and travel here and there is a right of every citizen. The passport came to be issued in favour of petitioner on 23.3.1998 and remained valid till 22.3.2008. It is for the authority to make a decision while keeping in view all the facts, coupled with the fact that to receive passport and travel here and there is a right of every citizen. The passport came to be issued in favour of petitioner on 23.3.1998 and remained valid till 22.3.2008. If the petitioner was involved in any activity before 1998, then how the passport came to be issued in his favour on 23.3.1998, i.e., after the lapse of seven years. Nothing is attributed to the petitioner right from 1998 till today. No adverse report is made against him. Virtually it is admitted that the petitioner has gone abroad and has visited Singapore, Soudi Arbia, Malaysia, Hong kong and China. Entries to this effect have also been made in the passport. The respondents have not received any adverse report from any country or his home town or the State of J&K that the petitioner is involved in any activity from 1998 till today. There is nothing on the file indicating such a fact that any challan or case was filed against the petitioner or is pending before any court of law. The report of Sr. Superintendent of Police (annexure `R & `R1) with rejoinder is in favour of petitioner, which is unrebutted and clinches the issue. Mere adverse report without any prima facie evidence cannot be made basis for refusing the passport and if such an order is passed that cannot stand in the eyes of law. My view is also fortified by the judgment passed by this Court in Anwar-ul-Haq v. Union of India, reported in AIR 2008 J&K 35. 5. Viewed thus, the writ petition is allowed and the impugned orders dated 13.11.2009 and 14.12.2009 are quashed. Respondent no.2 is directed to examine the case of petitioner afresh and pass appropriate orders in terms of the Passport Act and the rules occupying the filed. Disposed of along with all CMPs.