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2014 DIGILAW 17 (JK)

Umar Ali v. State Of J&K

2014-01-29

ALI MOHAMMAD MAGREY

body2014
1. The case of the petitioner is this: That he has passed M. Com. and, being unemployed, is interested in seeking employment outside the country. Petitioner no. 2 is his wife. She is M. Sc. Bio-Chemistry. They had applied for issuance of Passport under File No. SG1060376947112 dated 03.07.2012 and File No. SG1060714294212 dated 14.12.2012. Respondent no. 3 put on hold the process of issue of the Passports as respondent no. 2 had not recommended the same. The petitioners filed writ petition, OWP no. 1087/2013 which was disposed of by order dated 27.09.2013 by directing respondent no. 2 to ensure that material / detailed report sought for by respondent no. 3 is made available to the said authority who shall thereafter consider and take a decision on the claim of the petitioners for grant or otherwise of the Passport in accordance with law. Consequent upon the above Court direction, respondent no. 3 re-sent the case of the petitioners to the CID for detailed report. After the report was received, respondent no. 3 has passed order dated 14.10.2013 refusing to issue Passports to the petitioners on the grounds mentioned in Section 6(2) (b) (c) &(d) of the Passport Act, 1967. 2. The petitioners have challenged the aforesaid order in this petition, inter alia, on the ground that there is nothing adverse against them and that the passport is refused to them on irrational, arbitrary, unjust, unfair and unreasonable grounds, which is violative of the rights guaranteed to them under Article 21 of the Constitution. 3. On behalf of the State respondents, it was stated by Mr. Khan, learned AAG that there was no need of filing a reply on their behalf. However, respondent no. 3 has filed the counter wherein, among other things, it is stated that having no criminal record does not entitle a person to hold a passport and that grant of Passports in favour of the petitioners attracted Section 6(2) and hence the same were refused. 4. I have heard learned counsel for the parties and considered the matter. 5. The reason why Section 6(2) (b) (c) &(d) of the Passport Act, 1967 is attracted to the case of the petitioners is stated in the impugned order which is extracted hereunder: "..Detailed report received from CID Hqr dated 08-10-2013 inter alia reveals that `the brother of the petitioner No.1 & brother-in-law of petitioner no. 5. The reason why Section 6(2) (b) (c) &(d) of the Passport Act, 1967 is attracted to the case of the petitioners is stated in the impugned order which is extracted hereunder: "..Detailed report received from CID Hqr dated 08-10-2013 inter alia reveals that `the brother of the petitioner No.1 & brother-in-law of petitioner no. 2 namely Abdul Majid Sofi @ Majeet Bisati @ Shaheen crossed over LOC to Pakistan Occupied Kashmir in the year 1990 for obtaining illegal arms and ammunitions training and returned to this side in the year 1991 and remained hardcore /active militant of Hizbul Mujahidin outfit till 2005. He again exfilitrated to POK and is still there. Keeping in view of their adverse background and in the interest of the security and integrity of the state, the case of the petitioners was send as `Not Recommended'. It is also possible that the petitioners are in fact going abroad on a special assignment of the militant group working in J&K. Under these circumstances if the petitioners are allowed to go abroad on the strength of Indian Passport, they may indulge in activities prejudicial to the security, sovereignty and integrity of J&K State and India. Further, their departure will be prejudicial to the friendly relations of India with the country to which he intend to visit'. It has also been recommended in these reports that the Petitioner falls within the ambit of Sec 6(2) of the Passport Act 1967". 6. As is axiomatic from the above CID report, there is not even an iota or whisper of allegation about the conduct or activities of the petitioners. There is nothing adverse found or reported against the petitioners. Merely because the brother of petitioner no. 1 is a fugitive, petitioners' cannot be deprived of their fundamental right guaranteed under Article 21 of the Constitution of India. Given the CID report, it is undesirable to push the petitioners into a clique they have, admittedly, never been to. Law on the subject is not res integra. In Iqbal Hussain Mir v. State of J&K & ors, 2012 (2) JKJ [HC] 132, one of the Coordinate Benches of this Court, relying on a judgment of the Supreme Court in Satwant Singh Sawhney v. D. Ramrathnam, (1967) 3 SCR and a decision of the Division Bench of this Court passed in LPA no.184 of 2009 titled Addl. In Iqbal Hussain Mir v. State of J&K & ors, 2012 (2) JKJ [HC] 132, one of the Coordinate Benches of this Court, relying on a judgment of the Supreme Court in Satwant Singh Sawhney v. D. Ramrathnam, (1967) 3 SCR and a decision of the Division Bench of this Court passed in LPA no.184 of 2009 titled Addl. Director General of Police v. Imtiyaz Ahmad Wani, has held that it is not permissible under law that when `A' has committed a crime `B' should be punished. In the instant case also, the petitioners are sought to be punished for the alleged sins of some other person. The impugned order on the face of it is also violative of the principles of natural justice, since no opportunity has been given to the petitioners either by the State respondents or the Passport Officer before arriving at the decision which impinges upon their right guaranteed under Article 21 of the Constitution. 7. Learned counsel for the Union respondents submitted that this petition is not maintainable, since the petitioners have an effective and adequate remedy available to them under the Passport Act. Learned counsel for the petitioners on the other hand, relying on a judgment of the Supreme Court in Satwati Deswal v. State of Haryana, (2010) 1 SCC 126 , submitted that where an order is passed in violation of Principles of natural justice, availability of alternative remedy cannot be insisted upon. 8. For the aforesaid reasons, the impugned order dated 14.10.2013 passed by the Passport Officer together with the reasons recorded therein is quashed. Respondent no. 2 is directed to reconsider the case of the petitioners objectively, uninfluenced by the conduct or activities of the brother of petitioner no.1, and make an appropriate report to the Passport Officer strictly in light of the personal conduct and activities of the petitioners. Respondent no. 2, while framing his opinion, shall also afford an opportunity of hearing to the petitioners. The needful shall be done by respondent no.2 within two weeks from the date a copy of this order is served on him. The Passport Officer shall, thereafter, pass fresh orders on the basis of such report to be furnished by respondent no.2. Respondent no. 2, while framing his opinion, shall also afford an opportunity of hearing to the petitioners. The needful shall be done by respondent no.2 within two weeks from the date a copy of this order is served on him. The Passport Officer shall, thereafter, pass fresh orders on the basis of such report to be furnished by respondent no.2. If there is any material or evidence found against the person of the petitioners, which would entail an unfavourable report against them, the same shall also be disclosed to the petitioners by respondent no.2. 9. Disposed of accordingly together with the connected CMP.