Telangana High Court
Mohammed Liaqat Ali vs Union Of India, on 19 March, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.7192 of 2024
ORDER:
Heard learned counsel appearing on behalf of the petitioner and also heard learned Counsel representing Mr.Gadi Praveen Kumar, Dy. Solicitor General of India, appearing on behalf of respondent Nos.1 and 2. PERUSED THE RECORD.
2. The petitioner approached the Court seeking the prayer as follows:
"to issue a writ or order more particularly one in the nature of WRIT OF MANDAMUS declaring the action of the Respondent No.2 issuing Notice in form of Order vide No.HYD/30/POL/PIC/977/2023 dated 04.03.2024 against the Petitioner without considering the reply dated 23-11-2023 issued by the Petitioner is illegal, arbitrary, unjust, unconstitutional and in violation of principles of natural justice and consequently set aside the Notice vide No.HYD/3O/P OL/PIC/977/2023 dated 04.03.2024 issued by the Respondent No.2 and to pass such other and pass such other order or orders may deem fit and proper in the circumstances of the case."
3. It is the specific case of the petitioner that, petitioner obtained passport bearing No.Z2846948 from the respondent authorities, and the petitioner had applied for renewal of the 2 SN,J WP_7192_2024 said passport and the respondents had renewed the petitioner's passport bearing No.B6322572, dated 07.10.2023.
The specific grievance of the petitioner is that, 2nd respondent/Regional Passport Office had issued show cause notice vide letter Ref. No.SCN/316132991/23, dated 04.11.2023 to the petitioner calling upon the petitioner to furnish certain clarifications regarding issuance of passport facilities to petitioner. The petitioner further contends that, in response to the said show cause notice dated 04.11.2023 issued by the 2nd respondent/Regional Passport Office, the petitioner furnished clarifications vide his detailed representation, dated 23.11.2023 to the 2nd respondent herein. But however, without considering the said explanation submitted by the petitioner dated 23.11.2023, the 2nd respondent has issued another Notice dated 19.12.2023 vide letter Ref.No.SCN/316543603/23 informing the petitioner that Sec. 10(3)(b)&(e) of the Passports Act 1967 is attracted against the petitioner, and called upon the petitioner to furnish proper explanation within fifteen days. Thereafter, the respondents have issued another Notice vide 3 SN,J WP_7192_2024 No.HYD/30/POL/PIC/977/2023, dated 04.03.2024 directing the petitioner to surrender the passport bearing No.B- 6322572, dated 07.10.2023 within 15 days to the Regional Passport Officer. The petitioner aggrieved by the action of the 2nd respondent seeking to surrender the petitioner's passport dated 07.10.2023, filed the present writ petition. Hence, the petition.
4. It is contended by the learned counsel appearing on behalf of the petitioner that, petitioner herein is an accused in C.C.Nos.2505 of 2021, 4303 of 2019 and 22161 of 2019 pending on the file of III Additional Chief Metropolitan Magistrate, Nampally, Hyderabad and the petitioner was falsely implicated in the said cases which are pending on the file of III Additional Chief Metropolitan Magistrate, Nampally, Hyderabad.
5. The learned counsel for the petitioner further contends that, respondents cannot seek surrender of passport facilities to the petitioner on the ground of the pendency of the aforesaid criminal cases against the petitioner and the said 4 SN,J WP_7192_2024 action of the respondents is contrary to the procedure laid down under the Passports Act, 1967.
6. The learned Counsel representing Dy. Solicitor General of India, appearing on behalf of respondent Nos. 1 and 2 submits that the petitioner's passport is valid upto 24.06.2024 and further the petitioner in petitioner's explanation dated 29.01.2024 submitted in response to the show cause notice dated 19.12.2023 informed the 2nd respondent that the petitioner would furnish the Court order regarding disposal of the cases pending against the petitioner or in the alternative surrender petitioner's passport to the 2nd respondent. But however, the petitioner failed to submit the Court orders and therefore, the impugned Notice dated 04.03.2024 had been issued calling upon the petitioner to surrender the petitioner's passport within a period of 15 days; failing which action would be initiated against the petitioner under Section 10(3)(b)&(e) of the Passports Act 1967.
PERUSED THE RECORD.
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7. This court opines that, pendency of criminal cases against the petitioner cannot be a ground to deny issuance of a passport or deny renewal of passport or impound or detain a passport since the right to personal liberty of an individual would include not only the right to travel abroad but also the right to possess a Passport.
8. Further this Court opines that the Respondent cannot seek surrender of passport of the petitioner on the ground of the pendency of the aforesaid criminal cases against the petitioner and the said action of the respondent is contrary to the procedure laid down under the Passports Act, 1967 and also the principle laid down by the Hon'ble Supreme Court in Vangala Kasturi Rangacharyulu v. Central Bureau of Investigation reported in 2020 Crl.L.J. (SC) 572.
9. It is also relevant to note that the Apex Court in Vangala Kasturi Rangacharyulu (supra) had an occasion to examine the provisions of the Passports Act, 1967, and pendency of criminal cases and held that refusal of a passport can be only in case where an applicant is 6 SN,J WP_7192_2024 convicted during the period of five (05) years immediately preceding the date of application for an offence involving moral turpitude and sentence for imprisonment for not less than two years. Section 6(2)(f) relates to a situation where the applicant is facing trial in a criminal Court. The petitioner therein was convicted in a case for the offences under Sections 420 IPC and also Section 13(2) read with Section 13(1) of the Prevention of Corruption Act, 1988, against which, an appeal was filed and the same was dismissed. The sentence was reduced to a period of one (01) year. The petitioner therein had approached the Apex Court by way of filing an appeal and the same is pending. Therefore, considering the said facts, the Apex Court held that Passport Authority cannot refuse renewal of the passport on the ground of pendency of the criminal appeal. Thus, the Apex Court directed the Passport Authority to renew the passport of the applicant without raising the objection relating to the pendency of the aforesaid criminal appeal in S.C. 7 SN,J WP_7192_2024
10. The Apex Court in another judgment reported in 2013 (15) SCC page 570 in Sumit Mehta v State of NCT of Delhi at para 13 observed as under:
"The law presumes an accused to be innocent till his guilt is proved. As a presumable innocent person, he is entitled to all the fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution of India."
11. The Apex Court in Maneka Gandhi vs Union of India reported in 1978 (1) SCC 248, held that no person can be deprived of his right to go abroad unless there is a law enabling the State to do so and such law contains fair, reasonable and just procedure. Para 5 of the said judgment is relevant and the same is extracted below:
"Thus, no person can be deprived of his right to, go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967 for regulating the right to go abroad. It is clear from the provisions of the Passports, Act, 1967 that is lays down the circumstances under which a passport may be issued or refused or cancelled or impounded and also prescribes a procedure for doing so, but the question is whether that is sufficient compliance with Article 21. Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements? Obviously, procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded by the learned 8 SN,J WP_7192_2024 Attorney General who with his usual candour frankly stated that it was not possible for him to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law.
Therefore, such a right to travel abroad cannot be deprived except by just, fair and reasonable procedure.
12. The Division Bench of the Apex Court in its judgment dated 09.04.2019 reported in 2019 SCC online SC 2048 in Satish Chandra Verma v Union of India (UOI) and others it is observed at para 5 as under:
"The right to travel abroad is an important basic human right for it nourishes independent and self-determining creative character of the individual, not only by extending his freedoms of action, but also by extending the scope of his experience. The right also extends to private life; marriage, family and friendship which are the basic humanities which can be affected through refusal of freedom to go abroad and this freedom is a genuine human right."
13. Referring to the said principle and also the principles laid down by the Apex Court in several other judgments, considering the guidelines issued by the Union of India from time to time, the Division Bench of High Court of Punjab and Haryana at Chandigarh in Noor Paul Vs. Union of India reported in 2022 SCC online P & H 1176 held that a right to travel abroad 9 SN,J WP_7192_2024 cannot be deprived except by just, fair and reasonable procedure.
14. In the judgment dated 08.04.2022 of the Andhra Pradesh High Court reported in 2023 (4) ALT 406 (AP) in Ganni Bhaskara Rao Vs. Union of India and another at paras 4, 5 and 6, it is observed as under:
"This Court after hearing both the learned counsel notices that Hon'ble Supreme Court of India, in Criminal Appeal No. 1342 of 2017, was dealing with a person, who was convicted by the Court and his appeal is pending for decision in the Supreme Court. The conviction was however stayed. In those circumstances also it was held that the passport authority cannot refuse the "renewal" of the passport.
This Court also holds that merely because a person is an accused in a case it cannot be said that he cannot "hold" or possess a passport. As per our jurisprudence every person is presumed innocent unless he is proven guilty.
Therefore, the mere fact that a criminal case is pending against the person is not a ground to conclude that he cannot possess or hold a passport. Even under Section 10 (d) of the Passports Act, the passport can be impounded only if the holder has been convicted of an offence involving "moral turpitude" to imprisonment of not less than two years. The use of the conjunction 'and' makes it clear that both the ingredients must be present. Every conviction is not a ground to 10 SN,J WP_7192_2024 impound the passport. If this is the situation post-conviction, in the opinion of this Court, the pendency of a case/cases is not a ground to refuse, renewal or to demand the surrender of a passport.
The second issue here in this case is about the applicability of Section 6(2)(e) of the Passport Act. In the opinion of this Court that section applies to issuance of a fresh passport and not for renewal of a passport. It is also clear from GSR 570(E) which is the Notification relied upon by the learned counsel for the respondents and is referred to in the counter affidavit. This Notification clarifies the procedure to be followed under Section 6 (2) of the Passport Act against a person whom the criminal cases are pending. This notification permits them to approach the Court and the Court can decide the period for which the passport is to be issued. This is clear from a reading of the Notification issued. Clause (a) (i) states if no period is prescribed by the Court the passport should be issued for one year. Clause (a)
(ii) states if the order of the Court gives permission to travel abroad for less than a year but has not prescribed the validity period of the passport, then the passport should be for one year. Lastly, Clause
(a) (iii) states if the order of the Court permits foreign travel for more than one year but does not specify the validity of the passport, the passport should be issued for the period of travel mentioned in the order. Such a passport can also be renewed on Court orders. Therefore, a reading of GSR 570(E) makes it very clear that to give exception or to exempt applicants from the rigour of Section 6 (2)(f) of the Act, GSR 570(E) has been brought into operation. The issuance of the passport and the period of its validity; the period of travel etc., are thus under the aegis of and control of the Court."11
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15. In view of the above, this Court opines that mere pendency of criminal cases is not a ground to detain/surrender the passport which was issued to the petitioner on 07.10.2023 and is valid upto 24.06.2024. Further, the petitioner is ready and willing to co-operate with the trial Court in concluding the trial.
16. A bare perusal of the order impugned dated 04.03.2024 of the 2nd respondent indicates that there is no discussion of the explanation dated 29.01.2024, furnished by the petitioner in response to the notice dated 19.12.2023 issued by the 2nd respondent to the petitioner except stating that petitioner undertook to surrender the passport within a month in the event petitioner failed to submit the Court order regarding disposal of the case pending against the petitioner.
17. Taking into consideration the aforesaid facts and circumstances of the case, duly considering the submissions of both the learned counsel for the petitioner as well as learned counsel appearing on behalf of the respondents and also the view taken by 12 SN,J WP_7192_2024 the Supreme Court and other High Courts in the judgments (referred to and extracted above), the Writ petition is allowed and the order impugned dated 04.03.2024 of the 2nd respondent herein is set aside and the 2nd respondent is directed to reconsider the explanation dated 23.11.2023 furnished by the petitioner in response to the initial show cause notice dated 04.11.2023 issued by the 2nd respondent and pass appropriate orders within a period of three (3) weeks, from the date of receipt of the copy of the order, in accordance to law, duly taking into consideration the view and the law laid down by the Apex Court and other High Courts in the various judgments (referred to and extracted above). However, there shall be no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the writ petition shall also stand closed __________________________ MRS JUSTICE SUREPALLI NANDA 19th March, 2024 ksl