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2017 DIGILAW 184 (JK)

Ab. Wahid Sheikh v. Union of India

2017-04-10

TASHI RABSTAN

body2017
JUDGMENT : Tashi Rabstan, J. 1. Petitioners, who are husband, wife and son, seek a writ of mandamus commanding Respondent No. 5 to issue permanent passports in their favour. In addition, they also seek a direction to the Respondents No. 3, 4 and 6 to forward their CID Verification Report to Respondent No. 5, (if not already sent). The main facts emanating from the case set up by the petitioners, in nutshell, are that Petitioner No. 1 is a State Government employee, working as In-charge Junior Engineer, PHE Department, at District Kishtwar, Petitioner No. 2 is wife of Petitioner No. 1 (house wife) and Petitioner No. 3 is their real son, who is pursuing Masters Degree in Fisheries from SKUAST-K. They, being eligible in all respect, had applied for issuance of Passports in their favour vide File Nos. JM1060111673816, JM1060111395416 and JM1060111149616. On receipt of their applications, they were called by the office of Passport Officer, Gandhi Nagar, Jammu for verification and accordingly they appeared for the verification as required. 2. It is contended that Respondent No. 5, i.e. Passport Officer, Gandhi Nagar, Jammu informed petitioners vide three different communications dated 03.10.2016 that as per the CID report a short validity passport was recommended in their favour for a Hajj only but as a matter of fact petitioners had never applied for this purpose. Thereafter, petitioners verbally informed Respondent No. 5 that they are not interested to take short term passport facility. 3. Feeling aggrieved of inaction on part of the Respondent No. 5 for not issuing Passports, petitioners entered into portals of this Court by filing present writ petition. 4. On notice, official Respondents No. 2, 3 and 4 have filed the reply to the instant petition contending therein that there is nothing found adverse against the petitioners in person but real brother of Petitioner No. 1, namely, Abdul Waris Sheikh, who is also brother-in-law of Petitioner No. 2 and uncle of Petitioner No. 3, had joined HM outfit in the year 1998, went POK/PAK for arms training but later on, in the year 2010, he returned back via Nepal and arrested by Jammu and Kashmir Police. In this regard a FIR No. 255/2010, for the offence punishable under Sections 489-A/120-B RPC, 13/14/17/21 ULA, was also registered with Police Station Trikuta Nagar, Jammu. In this regard a FIR No. 255/2010, for the offence punishable under Sections 489-A/120-B RPC, 13/14/17/21 ULA, was also registered with Police Station Trikuta Nagar, Jammu. It is further contended that he was released on bail and now figuring in the list of OGW. Furthermore, it is averred that cases of the petitioners were recommended in terms of Clauses 2, 3 and 4 of the New Passport Police issued by the Government vide Circular No. 1 of 2014, dated 28.08.2014. 5. Per contra, contention of the learned counsel for the petitioners is that Petitioner No. 1 is an In-charge Junior Engineer, PHE Department, at District Kishtwar but denial of Passport to him, his spouse and son, amounts to deprivation of fundamental rights guaranteed under Article 21 of Constitution of India. Section 5 Sub-Section 3 of Passport Act, 1967 envisages that on the application of Passport, the authority shall endorse/record in writing a brief statement of reasons whereas in the case of petitioners there is no reason recorded. 6. I have heard learned counsel for the parties, perused the writ record and considered their submissions. 7. Learned counsel for the petitioners stated at the Bar that merely on the ground that adverse report against the relation of petitioners, they cannot be deprived of their constitutional rights guaranteed under Article 21 of Constitution of India. 8. On perusal of communications dated 03.10.2016 addressed to petitioners by Respondent No. 5-Passport Officer, Jammu, it reveals that case of the petitioners was recommended on the basis of report received from the CID, for short validity, i.e. for Hajj only. 9. Law is well settled that when a relation of the petitioners has committed crime, they should not be punished. Therefore, non-issuance of permanent Passport in their favour by the respondents on the face of it, is violation of fundamental rights enshrined under Article 21 of the Constitution of India. 10. Same view has already been taken by the coordinate Bench in cases reported as Dr. Massarat Maqbool vs. State of J&K and Others, 2009 (4) JKJ 34 (HC) : 2009 SLJ 197 and Umar Ali and Another vs. State of J&K and Others, 2014 (1) JKJ 494 (HC). Also this Bench has taken the similar view in OWP Nos. 475/2013, titled Zaitoon Akhter Sheikh vs. Union of India and Others, vide order/judgment dated 31.08.2015 and 339/2014 titled Gh. Also this Bench has taken the similar view in OWP Nos. 475/2013, titled Zaitoon Akhter Sheikh vs. Union of India and Others, vide order/judgment dated 31.08.2015 and 339/2014 titled Gh. Rasool and Another vs. Union of India and Others, vide judgment/order dated 17.12.2016. 11. For the aforestated reasons, this writ petition is disposed of with a direction to the Respondent Nos. 3 and 4 to reconsider the case of the petitioners objectively, uninfluenced by the adverse report recorded against the relation of the petitioners and make appropriate report to the Passport Officer, Jammu-Respondent No. 5, strictly in the light of personal conduct and activities of the petitioners. The said respondents while framing their opinion, shall also afford opportunity of being heard to the petitioners. Let Respondent Nos. 3 and 4 complete the exercise within a period of four weeks from the date of receipt of certified copy of this order. Respondent No. 5 shall, thereafter process the case of the petitioners on the basis of such report to be forwarded by the Respondent Nos. 3 and 4 within a period of two weeks. Disposed of as above along with connected MPs, on the aforesaid terms.