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2011 DIGILAW 178 (JK)

Mehmooda Begum v. Union of India & Ors.

2011-04-18

MANSOOR AHMAD MIR

body2011
1. The petitioner is aggrieved of withholding of issuance of passport in her favour for unknown reasons, as such, challenges the same through the medium of writ petition in hand. Petitioner having neither been denied nor issued, the passport that too without rhyme or reason, is what is contended to be the reason for her to approach the court and seek redressal thereof. 2. Respondents 1 and 2 have averred in their reply that unless report from the respondent No. 3 is received, they cannot take any decision in the matter as the issuance of the passports is always subject to the verification of character and antecedents of the petitioner. It is apt to reproduce relevant portion of the reply herein: - "2. In reply to paras 3 to 6 it is submitted that the petitioner had applied for the issuance of a passport in the year 2010 vide filed No. Z-600334. The file was sent for verification of antecedents of the petitioner and till date the police verification report in respect of the petitioner has not been received by the office of the answering respondent No. 2. Thus it is submitted that till the report of the State CID is not received, the answering respondents cannot take any decision as the issuance of the passports is always subject to the verification of character and antecedents of the petitioner. Furthermore it is submitted that unless and until a report with regard to the character and antecedents of the petitioner is not received, no decision can be taken". Respondent No. 3 has also filed reply. It is apt to reproduce relevant portion of the reply herein: - "2. In reply to paras 3 to 6 and the grounds of the writ petition it is respectfully submitted that passport case of the petitioner was received by CID Hqrs from Regional Passport Officer, Srinagar for verification of the character and antecedents as required under the provisions of Passport Act. The same was sent to field formation and reports received thereof revealed that petitioner's brother-in-law namely Abdul Rashid Hajam and Ghulam Nabi Hajam have exfiltrated to Pakistan Occupied Kashmir during the year 1999 for obtaining illegal arms/ ammunition training and are still there. The same was sent to field formation and reports received thereof revealed that petitioner's brother-in-law namely Abdul Rashid Hajam and Ghulam Nabi Hajam have exfiltrated to Pakistan Occupied Kashmir during the year 1999 for obtaining illegal arms/ ammunition training and are still there. Keeping in view the adverse militancy related family backgrounds of the petitioner, the passport case of the petitioner has been sent to Regional Passport Officer Srinagar as Not-Recommended vide letter No. 0033111 dated 24.02.2011." 3. Considered. Admit. With the consensus of learned counsel for the parties, this petitioner is taken up for final disposal. 4. The only task that is required to be done in this matter is to find an answer to a very simple question viz. can 'A' be punished for the crime committed by 'B? It neither requires a super specialty nor a magic wand to find answer to it because the reply to the question can never be assenting, for, an innocent is an innocent and a criminal is a criminal for all practical purposes and cannot be in any way tied together. A realistic and a divergent distinction is required to be made between the two. The record, in this behalf, needs to be put straight once for all. If the practice to convict 'A' for the faults of 13' is allowed to carry on, it will open a Pandora box and hardly anybody would spare. The other face of it would be to see that, can a criminal be forgiven of all his sins on the ground that except him all his siblings are innocent. Thus, in the given circumstances the action of the respondents on the face of it is illegal. 5. Apex Court in case titled Satwant Sawhney vs. D. Ramrathnam, (1967) 3 SCR 525 has held that no person can be deprived of his right to travel except according to the procedure established under law. It is apt to reproduce para-31 of the said judgment herein: "31. For the reasons mentioned above, we would accept the view of Kerala, Bombay and Mysore High Courts in preference to that expressed by the Delhi High Court. It follows that under Article 21 of the Constitution no person can be deprived of his right to travel except according to procedure established by law. For the reasons mentioned above, we would accept the view of Kerala, Bombay and Mysore High Courts in preference to that expressed by the Delhi High Court. It follows that under Article 21 of the Constitution no person can be deprived of his right to travel except according to procedure established by law. It is not disputed that no law was made by the State regulating or depriving persons of such a right." 6. The Apex Court has endorsed the view in case titled Maneka Gandhi Vs. Union of India and another, (1978) 1 SCC 248 . This Court also while dealing with an identical case, OWP No. 551/2008 titled Sajad Ayoub Bhat Vs. State and others, has held it to be impermissible under law to punish "A" for the crime committed by "B". In the instant case, respondents have taken a definite stand that but for the involvement of petitioner's brother-in-law in subversive activities; there is nothing adverse in the CID records against the petitioner. 7. Having regard to the ratio laid down by the Apex Court and this court coupled with the mandate of Clause-C of sub-clause (2) of Section 6 of the Passport Act, and read with the reply filed by respondents, the withholding of the issuance of passport to the petitioner is illegal and violative of mandate of Article 21 of the Constitution of India. 8. In the given scenario, the respondents are directed to consider the case of the petitioner for grant/ issuance of passport in terms of the rules occupying the field within three months from the date the copy of this order is served upon them. Writ petition is disposed of along with all connected CMPs.