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2023 DIGILAW 429 (UTT)

Nandan Kumar Mittal v. Union of India

2023-07-26

RAVINDRA MAITHANI

body2023
JUDGMENT : RAVINDRA MAITHANI, J. 1. By means of instant petition, the petitioner seeks the following reliefs: “(i) To issue a writ, order or direction in the nature of Mandamus directing the respondents to forthwith reissue the passport of the petitioner bearing no. U4589906 and to not to withhold re-issuance of the same on the alleged ground of pendency of criminal case no. 62 of 2010. (ii) To pass any other suitable order which this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.” 2. Heard learned counsel for the parties and perused the record. 3. It is a case of the petitioner that initially, he applied for the ordinary Passport which was issued to him on 19.12.1990 bearing No. A135662 (“the passport”). The passport was renewed subsequently on two occasions and it was valid till 19.03.2022. In between an FIR was lodged against the petitioner at Police Station Doiwala, District Dehradun. Therefore, in both occasions, when renewal was sought, the petitioner was asked by the Passport Authorities to get No Objection Certificate (“NOC”) from the Court concerned, which the petitioner did. Initially, NOC was given by the court concerned on 11.06.2018, without prescribing any period, to which the passport was to be issued. 4. Subsequently, on another occasion, the petitioner sought NOC from the court. It was granted on 11.10.2019 for a period of more than a year. Since, as such, specific period was not given by the court, in its order dated 11.10.2019, to which, the passport of the petitioner was to be renewed, the Passport Authority did approach the court concerned. Thereafter, on 28.01.2020, the court issued NOC for issuance of passport for two years. 5. The petitioner third time approached for renewal of the passport, but again passport authorities demanded NOC from the court. 6. It is the case of the petitioner that for renewal of the passport, NOC from the Court is not required and the respondents authorities have arbitrarily withheld the passport of the petitioner. 7. The respondents authorities were given time to file counter affidavit, which they did not file. Even intention was not expressed that the respondents authorities are willing or ready to file the counter affidavit. This matter is finally heard in the absence of any counter affidavit. 8. 7. The respondents authorities were given time to file counter affidavit, which they did not file. Even intention was not expressed that the respondents authorities are willing or ready to file the counter affidavit. This matter is finally heard in the absence of any counter affidavit. 8. Learned counsel for the petitioner would submit that going abroad is a right to life and liberty of an individual. It cannot be curtailed in the manner in which it has been done by the respondents authorities. 9. Learned counsel would refer to the provisions of Sections 6 and 22 of the Passports Act, 1967 (“the Act”) to argue that under Section 22 of the Act, the Central Government had earlier issued notification on 25.08.1993, which was subsequently reaffirmed in an Office Memorandum dated 10.10.2019. Learned counsel has raised two principal points in his arguments: (i) Initially, the passport of the petitioner was granted in the year 1990. At that time, the notification under Section 22 of the Act was not in existence. The petitioner was not facing any trial at that time. Therefore, the terms of the notification dated 25.08.1993 as well as the office memorandum dated 10.10.2019, both are not applicable in the case of the petitioner. (ii) Even if it is assumed that these notifications are applicable in the case of the petitioner, initially, on 11.06.2018, the concerned court had not given NOC for an unlimited period. In such contingencies, it is argued that as per the Government Notification dated 25.08.1993, at one time, renewal for one year could have been done and for that purpose, no NOC was required. 10. Learned counsel appearing for the respondents authorities would submit that the passport of the petitioner was renewed last time, in terms of the office memorandum dated 10.10.2019, which requires that in every occasion, when the passport is to be renewed, the petitioner has to bring NOC from the court concerned. 11. Undoubtedly, to go abroad is one of the essences of the right to personal liberty, but then, if the liberty is curtailed in accordance with the procedure established by law, which is reasonable, just and fair, it cannot be said that the curtailment is against the provisions of the Constitution. Section 6 of the Act, deals with refusal of passports, travel documents etc, which reads as hereunder: “6. Section 6 of the Act, deals with refusal of passports, travel documents etc, which reads as hereunder: “6. Refusal of passports, travel documents: (1) Subject to the other provisions of this Act, the passport authority shall refuse to make an endorsement for visiting any foreign country under clause (b) or clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and no other ground, namely: (a) that the applicant may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India. (b) that the presence of the applicant in such country may, or is likely to, be detrimental to the security of India. (c) that the presence of the applicant in such country may, or is likely to, prejudice the friendly relations of India with that or any other country. (d) that in the opinion of the Central Government the presence of the applicant in such country is not in the public interest. (2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely: (a) that the applicant is not a citizen of India. (b) that the applicant may, or is likely to, engage outside India in activities prejudicial to the sovereignty and integrity of India. (c) that the departure of the applicant from India may, or is likely to, be detrimental to the security of India. (d) that the presence of the applicant outside India may, or is likely to, prejudice the friendly relations of India with any foreign country. (e) that the applicant has, at any time during the period of five years immediately preceding the date of his application, been convicted by a court in India for any offence involving moral turpitude, sentenced in respect thereof to imprisonment for not less than two years. (f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India. (f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India. (g) that a warrant or summons for the appearance, or a warrant for the arrest, of the applicant has been issued by a court under any law for the time being in force or that an order prohibiting the departure from India of the applicant has been made by any such court. (h) that the applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such repatriation; (i) that in the opinion of the Central Government the issue of a passport or travel document to the applicant will not be in the public interest.” (Emphasis supplied) 12. A bare perusal of it, makes it clear that issuance of passport may be denied on the ground, as given under Section 2 (f) of the Act also, which deals that if a case is pending in the criminal court against the person. 13. Section 22 of the Act makes provisions with regard to the exemption. It reads as hereunder: “22. Power to exempt - Where the Central Government is of the opinion that it is necessary or expedient in the public interest so to do, it may, by notification in the Official Gazette and subject to such conditions, if any, as it may specify in the notification: (a) exempt any person or class of persons from the operation of all or any of the provisions of this Act or the rules made thereunder. (b) as often as may be, cancel any such notification and again subject, by a like notification, the person or class of persons to the operation of such provisions.” 14. It is under Section 22 of the Act that initially the notification dated 25.08.1993 was issued, which was reaffirmed by the office memorandum dated 10.10.2019 by the PSP Division, Ministry of External Affairs, Government of India. The relevant part of the notification dated 25.08.1993 has been reproduced in the office memorandum 10.10.2019 as follows: “2. It is under Section 22 of the Act that initially the notification dated 25.08.1993 was issued, which was reaffirmed by the office memorandum dated 10.10.2019 by the PSP Division, Ministry of External Affairs, Government of India. The relevant part of the notification dated 25.08.1993 has been reproduced in the office memorandum 10.10.2019 as follows: “2. GSR 570 (E) dated 25.08.1993 is reproduced below for reference: GSR 570 (E) - In exercise of the powers conferred by clause (a) of Section 22 of the Passports Act, 1967 (15 of 1967) and in super-session of the notification of the Government of India in the Ministry of External Affairs No. GSR 298 (E) dated the 14th April 1976, the Central Government, being of the opinion that it is necessary in public interest to do so, hereby exempts citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before a criminal court in India and who produce orders from the court concerned permitting them to depart from India, from the operation of the provisions of Clause (f) of sub-section (2) of Section 6 of the said Act, subject to the following conditions, namely: (a) the passport to be issued to every such citizen shall be issued: (i) for the period specified in order of the court referred to above, if the court specifies a period for which the passport has to be issued. (ii) if no period either for the issue of the passport or for the travel abroad is specified in such order, the passport shall be issued for a period of one year. (iii) if such order gives permission to travel abroad for a period less than one year, but does not specify the period validity of the passport, the passport shall be issued for one year. (iv) If such order gives permission to travel abroad for a period exceeding one year, and does not specify the validity of the passport, then the passport shall be issued for the period of travel abroad specified in the order. (b) any passport issued in terms of (a) (ii) and (a) (iii) above can be further renewed for one year at a time, provided the applicant has not travelled abroad for the period sanctioned by the court and provided further that, in the meantime, the order of the court is not cancelled or modified. (b) any passport issued in terms of (a) (ii) and (a) (iii) above can be further renewed for one year at a time, provided the applicant has not travelled abroad for the period sanctioned by the court and provided further that, in the meantime, the order of the court is not cancelled or modified. (c) any passport issued in terms of (a) (i) above can be further renewed only on the basis of a fresh court order specifying a further period of validity of the passport or specifying a period for travel abroad. (d) the said citizen shall given an undertaking in writing to the passport issuing authority that he shall, if required by the court concerned, appear before it at any time during the continuance in force of the passport so issued.” 15. What is being argued is that, in fact, the passport of the petitioner has never been issued under the notification dated 25.08.1993 or Office Memorandum dated 10.10.2019. Therefore, they are not applicable in the case of the petitioner. 16. It is true that in the year 1990, when originally, the passport was issued in favour of the petitioner, there was no criminal case pending against him. It is only for renewal that initially, the petitioner sought NOC from the court of competent jurisdiction, which was granted to him on 11.06.2018 and this order did not prescribe any period. 17. Today, it is not a case of the petitioner that he did not proceed under the notification dated 25.08.1993 or office memorandum dated 10.10.2019. What is being impliedly argued is that wrongly, the Passport Authorities had demanded NOC from him, when for the first time or second time, he sought renewal of his passport. Perhaps the Court need not retain with those arguments at this moment because the fact remains, today the passport of the petitioner, which was renewed up to 19.03.2022 was based on two separate NOCs granted by the court of competent jurisdiction, where the criminal trial of the petitioner is pending. It was done on 11.06.2018, when the court did not prescribe any period for which the passport was to be renewed and finally, second time, on 28.01.2020, when two years’ NOC was given. 18. Today, the petitioner has a passport based on NOC given on 28.01.2020 by a court. It was done on 11.06.2018, when the court did not prescribe any period for which the passport was to be renewed and finally, second time, on 28.01.2020, when two years’ NOC was given. 18. Today, the petitioner has a passport based on NOC given on 28.01.2020 by a court. It falls within the four corners of the notification dated 25.08.1993 and office memorandum dated 10.10.2019. Therefore, it cannot be said that since originally the petitioner’s passport was not under the notification dated 25.08.1993 and office memorandum dated 10.10.2019, the petitioner is not required to follow these notification and office memorandum. 19. Learned counsel would also argue that even for the sake of arguments it is assumed that the petitioner’s passport was renewed with the help of notification dated 25.08.1993 and office memorandum dated 10.10.2019, still the petitioner is not required to produce NOC each and every time. Because, it is argued that, initially, on 11.06.2018, the court had granted NOC without prescribing any time. In such eventuality, according to learned counsel for the petitioner, the provisions of notification dated 25.08.1993, as given under Clause 2 (a) (ii) would come into play and for renewal of it, the case of the petitioner falls under Clause 2 (b) of the notification dated 25.08.1993. It is argued that in such eventuality, the passport may further be renewed for one year at a time and it could have been renewed on multiple occasions. 20. This argument also remains academic only, because after NOC given by the court on 11.06.2018, the passport had already been issued for a particular period and thereafter again, when the petitioner sought its renewal, he was required to get an NOC from the court concerned, which he, in fact, obtained. Initially, the court did give NOC for a period for more than one year on 10.10.2019, which was subsequently modified by the court by its order 28.01.2020 by which NOC was given for the period of two year for making the passport of the petitioner (the word used in the NOC is “making” not “renewed”). 21. Today, the passport of the petitioner which has expired on 19.03.2022 as per the petitioner, is based on the NOC of the court dated 28.01.2020. That NOC is for the specified period. 21. Today, the passport of the petitioner which has expired on 19.03.2022 as per the petitioner, is based on the NOC of the court dated 28.01.2020. That NOC is for the specified period. It definitely falls under Clause 2 (a) (i) of the notification dated 25.08.1993 and in such eventuality, the renewal is prescribed under Clause 2 (c) of the notification dated 25.08.1993 which requires fresh court order for renewal of the passport, that is that has been sought from the petitioner. 22. In view of the foregoing discussion, this Court is of the view that it cannot be said that the respondents authorities have withheld the renewal of the passport of the petitioner without any reason. Admittedly, the petitioner is facing criminal trial in the court of Sessions at Dehradun in Sessions Trial No. 131 of 2014, State vs. Nandan Singh. He is required to give NOC from the Court. There is no merit in this petition. Accordingly, the petition deserves to be dismissed. 23. The petition is dismissed.