Ganni Bhaskara Rao vs The Union Of India
2022 Latest Caselaw 1679 AP

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          * HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU

               + WRIT PETITION No.220 of 2022

                         % 8th April, 2022


# Ganni Bhaskara Rao
                                                      ... Petitioner..
AND

$ The Union of India and another
                                                    ... Respondents.


! Counsel for the Petitioner           : Sri K. Chidambaram


^ Counsel for the respondents          : Sri Krishna Bushan Chowdary


< Gist:

> Head Note:


? Cases referred:
1) AIR 1978 SC 597
2) 2019 SCC OnLine SC 2048
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       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
              WRIT PETITION No.220 of 2022
ORDER:

This Writ Petition is filed seeking a mandamus

questioning the action of the 2nd respondent in retaining the

petitioner's passport bearing No.Z6412398 vide surrender

Certificate dated 01.12.2021.

This Court has heard Sri K.Chidambaram, learned

counsel for the petitioner. He points out that the petitioner is

the Chairman of a private medical college. He had a passport,

which was valid till March, 2022. Thereafter, he made an

application for renewal of the passport, and a new passport

bearing No.Z6412398 was issued to the petitioner on

03.09.2021. The petitioner travelled abroad with his new

passport and returned to India in the month of November,

2021. A show cause notice was issued to the petitioner stating

that the respondents received an adverse police verification

report against him. At request of respondents, the petitioner

surrendered his passport on 01.12.2021 and the same was

acknowledged by the 2nd respondent vide surrender certificate

dated 01.12.2021. Learned counsel for the petitioner argues

on the basis of case law that the existence of the criminal cases

is not a ground to seek surrender of the passport or not to

renew the passport. Learned counsel submits that Section 6

of the Passport Act deals with the initial issue of passports and

does not deal with the "renewal" of existing passport. He relies

upon the judgments of the Karnataka and Delhi High Courts,

which are reported in W.P.No.9141 of 2020 of Karnataka High

Court and Crl.A.No.686 of 2018 of High Court of Delhi, and the

judgment of the Supreme Court of India in Criminal Appeal

No.1342 of 2017. Learned counsel argues that in that case

before the Hon'ble Supreme Court of India the person was

convicted of an offence and the conviction was stayed. Even

then the Hon'ble Supreme Court of India held that renewal of

a passport cannot be kept pending. Learned counsel,

therefore, argues that the respondents cannot retain the

renewed passport or demand its surrender only on the ground

that there are adverse police cases against the petitioner.

In reply to this Sri Krishna Bushan Chowdary, learned

counsel for the 2nd respondent, argues that action taken by the

respondents is correct. He points out that there are at least

four cases pending trial against the petitioner and the 5 th case

is under investigation. All of these are listed in paragraph 4 of

the counter affidavit. Learned counsel submits that this is a

case of suppression of information, since the petitioner did not

bring these facts to the notice of the authorities when he sought

for renewal. He also argues that the petitioner surrendered his

passport. The last submission of the learned counsel is that

the passport can be processed only under the GSR 570(E). He

draws the attention of this Court to the judgments passed by

the coordinate Benches of this Court in W.P.No.17993 of 2021

to argue that similar procedure must be followed.

This Court after hearing both the learned counsel

notices that the 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 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.

If the present case is examined it is clear that already a

passport was issued to the petitioner and on its expiry a fresh

passport was reissued. The show cause notice was issued to

the petitioner to which he gave reply and thereafter the

passport was surrendered as evidenced by the surrender

certificate. Thus, this is not a case of "impounding". If a person

convicted of a crime is entitled to seek a renewal as held by the

Hon'ble Supreme Court of India, this Court does not find any

reason to hold that the petitioner who is only an accused

cannot hold a passport. Therefore, the 2nd respondent is

directed to immediately give back the passport bearing No.

Z6412398 to the petitioner. In the opinion of this Court, the

passport cannot be retained only on the ground that there are

criminal cases pending.

If the suppression of this information, in the opinion of

the respondents, is serious and merits action they should give

the petitioner a notice, as per the applicable law / regulations

etc., consider his explanation and then decide the further

course of action. For the present there shall be an order

directing the 2nd respondent to retain the passport mentioned

above to the petitioner. A reading of GSR 570(E), which is

relied upon by the respondents also makes it clear, even if

criminal cases are pending an accused can hold a passport and

travel abroad with the permission of the Court. Therefore, this

Court holds that the action of the respondents in seeking the

return of the passport on the ground of adverse police report is

not correct. Post the landmark decision in Maneka Gandhi v

Union of India and Another1 and later cases upto Satish

AIR 1978 SC 597

Chandra Verma v Union of India and Others2, the right to

travel abroad is a part of a personal liberty and the right to

possess a passport etc., can only be curtailed in accordance

with law only and not on the subjective satisfaction of anyone.

The procedure must also be just, fair and reasonable.

With the above observation the Writ Petition is allowed.

There shall be no order as to costs.

Consequently, the Miscellaneous Applications pending,

if any, shall also stand closed.

__________________________ D.V.S.S.SOMAYAJULU, J Date:08.04.2022.

Note: LR copy be marked B/o Ssv

2019 SCC OnLine SC 2048