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2014 DIGILAW 724 (ORI)

Chinari Jawaharilal Patro v. Union of India

2014-11-05

BISWANATH RATH

body2014
JUDGMENT BISWANATH RATH, J. : This is writ petition seeking following reliefs : “It is therefore, humbly prayed that this Hon’ble Court may graciously be pleased to issue rule NISI in the nature of Writ of Certiorari and Mandamus calling upon the opposite parties to show cause as to why the Order No.F17/AD/POB/10 dated 02.12.2013 under annexure-09 to the writ application wherein the passports of the petitioners have been impounded or any connected order/letter impounding the passports shall not be quashed; And if the opposite parties fail to show cause or show insufficient cause make the said rule absolute by quashing the Order No.F17/AD/POB/10 dated 02.12.2012 under annexure-09 to the writ application and any connected order/letter impounding the passports of the petitioners declaring the same to be illegal, void and non-est in the eye of law; And pass an order impsing exemplary cost on the opposite parties for having perpetrated such illegalities causing Miscarriage of Justice; And to pass any further order(s)/direction(s) as would be deem fit and proper.” 2.Facts involved in the case is that on receipt of credible information regarding possession of huge assets by the petitioner No.1, the then M.V.I. in the office of the R.T.O., Chandikhole made a preliminary enquiry by the Vigilance Police and it was found that petitioner No.1 was in possession of disproportionate assets to the tune of Rs.1,03,40,132/- excess to his known and lawful sources of income to which he could not satisfctorily account for, consequently a case was registered vide Bhubaneswar Vigilance P.S. Case No.03 dated 11.2.2004. After completion of investigation, the Vigilance Police submitted charge sheet No.23 dated 12.12.2008 involving petitioners for the offence under Section 13(2) READ WITH Section 13 (1) (e) of the Prevention of Corruption Act and Section 109 of the Indian Penal Code. The petitioners are facing trial in the Court of Special Judge (Vigilance), Bhubaneswar in T.R. No.31 of 2009. The further submission of the petitioners is that in the above investigation process during search in the house of the petitioners on 10.2.2004 the Vigilance Authority seized certain documents including the passports bearing Passport No.S.167641 and Passport No.S-167634 belonging to the petitioner Nos.1 and 2 respectively. The further submission of the petitioners is that in the above investigation process during search in the house of the petitioners on 10.2.2004 the Vigilance Authority seized certain documents including the passports bearing Passport No.S.167641 and Passport No.S-167634 belonging to the petitioner Nos.1 and 2 respectively. Since the period of the passports was to expire, on an application of the petitioners, the Special Judge (Vigilance) Bhubaneswar by his order dated 4.9.2007 permitted the passports of both the petitioners to be returned for renewal with a direction to the petitioners to file back the seized passports before the expiry of a period of one month from the date of the order after getting it renewed. Following the direction of the Special Judge (Vigilance), Bhubaneswar and upon receipt of the certified copy of the said order by the petitioners on 24.9.2007, the petitioners applied the Investigating Officer for release of the passports to them for the purpose of renewal of the same, as a consequence of which, both the passports under seizure were returned back to the petitioners and the petitioners applied the Passports Authority for renewal of the same on the strength of the order dated 4.9.2009 passed by the Special Judge (Vigilance), Bhubaneswar. The Passport Authority also renewed both the passports, while renewing the passport bearing Passport No.S-167641 involving the petitioner No.1 only for a period of one year, the said authority renewed the passport of petitioner No.2 for a period of ten years. The passport belonging to the husband was received after being renewed, across the counter of the Passport Office whereas the passport concerning the petitioner No.2 was received by the petitioner towards end of October, 2007, being sent through post. When the petitioners were making attempt to return back the passports to the Special Judge (Vigilance) Bhubaneswar, in a mysterious situation, the Passport Authority asked the petitioners for surrendering the passports to the said authority, as they have been directed by the Vigilance Department to hand over the passports instead of submitting it back to the Vigilance Court submitted the same to the passport authority. Under compelling situation, the petitioners were coerced to submit both the passports with the Passport Authority vide their letter dated 5.11.2007. Under compelling situation, the petitioners were coerced to submit both the passports with the Passport Authority vide their letter dated 5.11.2007. While the matter stood thus, as the petitioners were required to travel beyond the territory of the Country, they moved an application under Section 457 of the Code of Criminal Procedure before the Vigilance Court for release of the passports to visit their relative at London. It is alleged that the application under Section 457 of the Code of Criminal Procedure was illegally rejected by the trial Court by order dated 1.7.2013 holding that the offence is serious in nature. The Vigilance Court not only refused to return the passports but also refused to grant permission to the accused persons to go to London on the premises that possibility of non-return of the accused persons from London cannot be ruled out. Being aggrieved by the aforesaid order, the petitioners moved CRLREV No.629 of 2013 before this Court and this Court allowed the said Criminal Revision by order dated 22.1.2014 upon setting aside the rejection order passed by the Vigilance Court with the following observation : “That being the case, this Court disposes of the Revision Application directing the learned Special Judge (Vigilance), Bhubaneswar to permit the petitioners to travel abroad for a limited period on their furnishing an itinerary giving the address where they would be staying in London and subject to further conditions, the petitioner No.1 shall furnish a property security of Rs.1,00,00,000/- (Rupees one crore). It is further clarified that this Court is not passing any order on the order passed by the Passport Officer in impounding the passports, since orders may be challenged by the petitioners before the Appropriate Authority.” In some and substance, this Court while disposing the CRLREV No.629 of 2013 permitted the petitioners to travel abroad for a limited period on their furnishing an itinerary giving the address where they will be staying in London and subject to further condition that the petitioner No.1 shall furnish a property security of Rs.1,00,00,000/- (Rupees one crore). 3.The petitioners alleged that during pendency of the aforesaid criminal revision, the Passport Officer produced a letter dated 2.12.2013 before this Court issued by the Passport Officer, Bhubaneswar indicating impounding of both the passports by the Passport Authority on 2.12.2013. 3.The petitioners alleged that during pendency of the aforesaid criminal revision, the Passport Officer produced a letter dated 2.12.2013 before this Court issued by the Passport Officer, Bhubaneswar indicating impounding of both the passports by the Passport Authority on 2.12.2013. Since this Court in disposing the criminal revision did not decide anything on the impounding of the passports as it was beyond its scope it allowed the petitioners to challenge any such order before the appropriate authority. The petitioners filed the present writ petition challenging the order of the Passport Authority impounding their passports. Challenging the impugned order, the petitioners submit that attempt of Passport Officer is to circumvent their chance to move abroad for valid reasons. Further, the order of impounding is also not only contrary to the provisions contained in the Passports Act, 1967 but also bad in law and in violation of principle of natural justice. In as much as, the impounding order was also passed on the date on which the petitioners were also issued with another letter asking them to file their show cause in the matter of impounding of the passports. 4.Per contra, on their appearance, the Passport Authority seriously disputing the allegation made by the petitioners and contended that there is sufficient reason in impounding the passports and the passports are impounded, following the provisions contained under Section 10(3)(b) read with Section 12(1)(b) of the Passport Act, 1967. Besides above, the Passport Authorities also took reliance of the order dated 4.9.2007 passed by the learned Special Judge (Vigilance), Bhubaneswar in VGR No.3 of 2004. 5.Vigilance Department on its appearance also filed a counter contending that under the direction of the Vigilance Court the petitioners were supposed to file back the passport with the Court and as they have not filed back the passports the vigilance Court vide a subsequent order was pleased to direct for cancellation of both the passports. Following such direct the passports were withheld by the Vigilance Department. As a case for impounding was made out they requested the Passport Authority to impound the same and there is no illegality in impounding the same. Following such direct the passports were withheld by the Vigilance Department. As a case for impounding was made out they requested the Passport Authority to impound the same and there is no illegality in impounding the same. 6.On perusal of the order dated 22.1.2014 passed by this Court in CRLREV No.629 of 2013, it clearly discloses that the matter was not only contested by the Vigilance Department but only after considering the case of both the sides the Revisional Court granted permission to the petitioners to travel abroad subject to compliance of conditions stipulated therein clearly after taking note of the fact that the petitioners are facing a Vigilance proceeding under the provision of Prevention of Corruption Act as well as Indian Penal Code. 7.Perusal of the counter at the instance of the Passport Officer, Regional Passport Office, Ministry of External Affairs, Government of India containing a document at Annexure-B/1 available at page-6 of the said counter, it appears that this is a letter issued by the Passport Officer, Bhubaneswar indicating their decision to impound the passports mentioned therein in exercise of power under Section 10(3) (c) of the Passport Act, 1967. Further document to the very same counter, available at page-9 vide Annexure-C/1 issued on the same day i.e. on December, 2, 2013 to the petitioner No.1 asking him to provide suitable explanation submitting a fresh application with correct details. This letter appears to be a show cause notice. The document available at page-10 of the very same counter is another letter issued on the very same day in the same direction to the petitioner No.2 asking her to file a reply to the show cause notice as against her. Reading of documents vide Annexure-B/1 and C/1 makes it clear that the order of impounding of both the passports has been passed on a day on which date letters were also issued to both the petitioners asking them to show cause as to why the passports will not be impounded. Section 10 of the Passport Act, 1967 deals with variation, impounding and revocation of passports and travel documents. Section 10 of the Passport Act, 1967 deals with variation, impounding and revocation of passports and travel documents. Sub-Section 3 of Section 10 of the said Act reads as follows : The passport authority may impound or cause to be impounded or revoke a passport of travel document :- (a)if the passport authority is satisfied that the holder of the passport of travel document is in wrongful possession thereof; (b)if the passport or travel document was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the passport or travel document or any other person on his behalf; (c)if the passport authority deems it necessary so to do in the interest of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interest of the general public. (d)if the holder of the passport or travel document has, at any time after the issue of the passport of travel document, been convicted by a Court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years; (e)if proceedings in respect of an offence alleged to have been committed by the holder of the passport of travel document are pending before a Criminal Court in India; (f)if any of the conditions of the passport or travel document has been contravened; (g)if the holder of the passport or travel document has failed to comply with a note under Sub-Section (1) requiring him to deliver up the same; (h)if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a Court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such Court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made”. Sub-Section (e) of Section 10 provides provision of impounding of passport or travel document in the event proceeding in respect of an offence alleged to have been committed by the holder of passport or travel document are pending before a criminal Court in India. 8.Thus in my opinion, there is no illegality in initiating a proceeding for impounding of the passports. But at the same time, the authority initiating a proceeding for impounding or revocation of passports are not authorized to suo motu impound the passport or the travel document for the reasons of which Passport Authority has rightly issued a show cause notice on the question of impounding of the travel document/passport as against both the petitioners. Having issued a show cause notice to the petitioners as available at Annexure-C/1, it was incumbent upon the Passport Authority to wait for a reasonable period for reply from both the petitioners and then to proceed for taking a decision in absence of which the order impounding the passports as available at Annexure-B/1 is not sustainable in the eye of law. Further under the statutory provisions the authority is also required to assign reasons for such impounding and which can only be possible after affording opportunity to the particular person. It is in the above premises and since there is no compliance of natural justice, I hold the order impounding passports of the petitioners available at Annexure-B/1 as well as Annexure-9 of the writ petition as bad in law and while quashing the said orders, I remit the matter back to the Passport Authority for a fresh consideration giving opportunity to the petitioners. It is made clear that while considering the case of the petitioners, the Passport Authority shall also take into consideration the order passed by this Court in CRLREV No.629 of 2013 whereby the High Court of Orissa has already set aside the order of Criminal Court in refusing to permit the petitioners to go to abroad and remitted both the petitioner to abroad. The writ petition succeeds to the above extent. However, there shall be no order as to cost. Petition succeeds.