Deepak Sadashiv Nikalje vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 1106 Bom

JUDGMENT

R.M. Lodha, J.

1. Deepak Sadashiv Nikalje - petitioner herein, is aggrieved by the orders passed by respondent No. 3 and respondent No. 2, on 9th October, 2000 and 8th June, 2001, respectively whereby the petitioner has been refused issuance of passport.

2. The petitioner is an Indian citizen and claims to be a reputed film maker, having made film "Vastav" which, according to him, was awarded the best film award for 1999 by various organisations in the film industry. He was born on 27th July, 1967 and as per his case he is staying in Bombay with his wife and two children. The petitioner was issued Indian passport bearing No. B-631528 on 4th December, 1986. Upon initial expiry of the passport after five years, the said passport was renewed for a further period of five years and it expired on 3rd December, 1996. On 15th February, 1999 the petitioner submitted an application for renewal/issuance of fresh passport to the Regional Passport Officer, Mumbai, (respondent No. 3). The application received by the Regional Passport Officer was sent for police verification and it appears that the petitioner's case was not recommended by the police authorities and by order dated 24th April, 2000, the Regional Passport Officer, Mumbai refused passport to the petitioner. Aggrieved thereby, the petitioner preferred Appeal. Vide communication dated 13th June, 2000 the petitioner was informed that his appeal was dismissed due to adverse police report. The petitioner upset by the orders of the Regional Passport Authority and the Appellate Authority, filed writ petition before this Court which was registered as Writ Petition No. 1422 of 2000. The said writ petition was disposed of on 4th September, 2000 by the Division Bench of this Court. In paras 5 and 6 of the order the Division Bench observed thus:

"5. The appellate order is equally cryptic, and all that the appellate order contains is that the Appeal has been dismissed due to adverse police reports. It is really surprising that the appellate order refers to adverse police reports when there is no reference to any such report in the order passed by the Regional Passport Officer. It is also surprising that such an order has been passed by the Regional Passport Officer and the appellate authority despite the judgment of the Supreme Court in Maneka Gandhi's case. The order refusing passport facility to the petitioner contains no reasons whatsoever. A mere reference to the section empowering the authority to refuse passport facility is no substitute to a reasoned order so that the petitioner may have an effective remedy by way of an Appeal before the competent authority. The reasons that are disclosed must be germane, and not the ipse dixit of the Regional Passport Officer. In doing so, the Regional Passport Officer must be guided by the provisions of the Passports Act, particularly, Section 6 thereof which lays down the parameters of the jurisdiction of the Passport Officer.

6. Since the order passed by the Regional Passport Officer as well as the order passed by the appellate authority contain no reasons whatsoever, both the orders, Exhibit "C" dated 24th April 2000 and Exhibit "E" dated 13th June 2000 are quashed. The Regional Passport Officer, Mumbai is directed to hear the petitioner before passing an order on his applicationfor grant of passport facility. After affording him a reasonable opportunity of being heard in the matter, the Regional Passport Officer may pass a reasoned order in accordance with law. Since the matter has been pending for a long time, we direct the petitioner to appear before the Regional Passport Officer on 18th September 2000 on which date, the Regional Passport Officer may either hear him or fix a date for hearing so that the application would be disposed of by 10th October 2000. If the petitioner is aggrieved by the order passed by the Regional Passport Officer. If so advised, he may appeal against the said order."

3. Rule was thus made absolute by this Court in the aforesaid terms. As per the order passed by this Court, the Regional Passport Officer, Mumbai reconsidered the petitioner's application for issuance of passport. By order dated 9th October, 2000 the Regional Passport Officer rejected the petitioner's application by relying on Section 6(2)(d) read with Section 5(2)(c) of the Passports Act, 1967. The relevant part of the order passed by the Regional Transport Officer rejecting the petitioner's application for issuance of passport reads thus:

"Shri Deepak Sadashiv Nikalje has submitted his old passport with passport application dated 15-2-1999. He had extensively travelled on his said passport and the police authorities have not recommended the case as he may misuse the passport by aiding and abetting the Criminal activities of the his brother 'Chhota Rajan' a notorious gangster. Applicant is the real brother of the said 'Chhota Rajan' and it is not unlikely that his intention in going abroad would be to indulge in the criminal activities like his brother who is already abroad. His earlier travels when his brother was abroad could also be for the purpose of aiding and abetting his brother. When a criminal happens to be abroad and is active in his notorious activities in connivance with his kith and kin the very first thing ascertained in his nationality, he may not have criminal records here but his going abroad ostensibly to be with his brother who is a notorious gangster is likely to affect the reputation and may also result affecting the friendly relations of our country with that country where our nationals are engaged in such activities. I am, therefore, inclined to bring the case of Shri Deepak Sadashiv Nikalje under the purview of Section 6(2)(d) read with Section 5(2)(c) of the Passports Act, 1967 refusing passport facilities."

4. The petitioner preferred Appeal and the appellate authority vide its order dated 8th June, 2001 dismissed the appeal and refused the issuance of passport to the petitioner in the interest of general public by relying on the provisions contained in Section 6(2)(i) and 5(3) of the Passports Act, 1967. It was also recorded in the order that it would not be in the public interest to disclose the reasons in terms of Section 5(3) of the Act, 1967. As noted above, it is the order of the Regional Passport Officer dated 9th October, 2000 and the order of the Appellate Authority dated 8th June, 2001 which are impugned in this writ petition.

5. On 5th October, 2002 we heard Mr V.R. Manohar, learned senior counsel for the petitioner and Mr A.J. Rana, learned senior counsel for respondent Nos. 1 to 3. During the course of hearing on that day, it transpired that the passport has been refused to the petitioner only for the reason that the police authority, viz. Deputy Commissioner of Police, Special Branch II, C.I.D., Mumbai had not recommended the petitioner's case for issuance of passport repeatedly and accordingly we ordered impleadment of Deputy Commissioner of Police, Special Branch II, C.I.D., Mumbai as party respondent No. 4 and notice was issued to the newly added respondent. The notice of writ petition was served upon the Deputy Commissioner of Police, Special Branch II, C.I.D., Mumbai and in response thereto an affidavit has been filed through Shri Joseph Siloo Main, Senior Inspector of Police, S.B.-II, C.I.D.

6. Perusal of the order passed by the Regional Passport officer, Mumbai on 9th October, 2000 would show that the said passport authority refused issuance of passport to the petitioner by relying upon Section 6(2)(d) read with Section 5(2)(c) and it was noted that the petitioner was the real brother of Chhota Rajan and the police authorities have not recommended his case as he may misuse the passport by aiding and abetting the criminal activities of his brother 'Chhota Raja' who is a notorious gangster and it is not unlikely that his intention in going abroad would be to indulge in the criminal activities like his brother who is already abroad. It was noted that the petitioner may not have any criminal record but his going abroad ostensibly to be with his brother who is a notorious gangster, is likely to affect the reputation and may also result affecting the friendly relations of our country with that country where our nationals are engaged in such activities. When the appeal was taken by the petitioner to the appellate authority against this order, the appellate authority has not confirmed the reasons which weighed in the mind of the Regional Passport Officer for refusing to issue passport and instead invoked its power purported to be under Section 6(2)(i) and 5(3) of the Passports Act by holding that issuance of passport to the petitioner would not be in the interest of general public. In the order no reasons have been assigned by the appellate authority because the appellate authority was of the view that it would not be in the public interest to disclose reasons in terms of Section 5(3) of the Passports Act. We are afraid, the order passed by the appellate authority is wholly unsustainable in the eye of law. This would be clear from the few provisions of the Passports Act which we refer to hereinafter. Section 2(c) defines passport authority which means an officer or authority empowered under rules made under the Act to issue passports or travel documents and includes the Central Government. Section 5 provides for applications for passports and orders thereon. Sub-section (2) of Section 5 provides that on receipt of the application the passport authority may issue the passport or travel document or refuse to issue the passport or travel document after making such enquiries. Sub-section (3) provides that where the passport authority makes an order under Clause (b) or Clause (c) of Sub-section (2) on the application made by any person, it shall record in writing brief statement of its reasons and furnish a copy thereof to such person when demanded unless the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public to furnish such copy. The Regional Passport Officer has recorded the reasons in the order refusing issuance of passport to the petitioner - may be those reasons are good, bad or indifferent but reasons were recorded and copy thereof was furnished to the petitioner. Section 6, particularly Sub-section (2) provides the grounds on the basis of which the passport authority shall refuse to issue passport and in the present case as noted above, the Regional Passport Officer refused to issue passport to the petitioner under Clause (b) of Sub-section (2) by holding that the presence of the petitioner outside India is likely to prejudice the friendly relations of India with foreign country. The appellate authority exercised its power under Section 11 and Sub-section (6) thereof provides that the appellate authority may confirm, modify or reverse the order appealed against and such order shall be final. As per Section 21, the Central Government may direct its powers and functions to be exercised or performed by such officer or authority subordinate to it or by any State Government or by any officer or authority subordinate to such Government or in any foreign country in which there is no diplomatic mission of India by such foreign Consular Officer other than the power conferred on Central Government under Clause (d) of Sub-section (1) of Section 6 or the power under Clause (i) of Sub-section (2) of Section 6. The survey of these provisions of the Passports Act would show that the appellate authority could not have exercised the power under Section 6(2)(i) as it cannot be deemed to be the Central Government within the meaning of Clause (i) nor could it fall within the definition of Passport Authority as defined under Section 2(c). The appellate authority apparently has not acted in accord with law by exercising the power under Section 6(2)(i) which was never exercised by the Passport Authority, i.e. the Regional Passport Officer, Mumbai. The appeal filed by the petitioner before the appellate authority has thus not been examined in accordance with law. The reasons given by the Regional Passport Officer, Mumbai in refusing the petitioner in issuance of the passport have not been even affirmed or confirmed by the appellate authority and that would lead to conclude that the appellate authority was not itself satisfied with the reasons recorded by the Regional Passport Officer, Mumbai, denying the passport to the petitioner. As it is from the order passed by the Regional Passport officer, following reasons decipher :

 (a)     The petitioner is the real brother of Chhota Rajan; 
 

 (b)    It is not unlikely that the petitioner's intention in going abroad would be to indulge in the criminal activities like his brother who is already abroad; and  
 

 (c)     The petitioner's going abroad ostensibly to be with his brother who
is a notorious gangster is likely to affect the reputation and may
also result affecting the friendly relations of our country with that
country where our nationals are engaged in such activities.  
 

 As a matter of fact, these were the considerations which led the police authority
not to recommend the petitioner's case. It may be noted that when the petitioner's
application for issuance of passport was initially rejected by the Regional
Passport Officer on 24th April, 2000 and the Appellate Authority also rejected
the petitioner's appeal on 13th June 2000, the petitioner filed writ petition before
this court which was registered as Writ Petition No. 1422 of 2000. Opposing the
said writ petition, an affidavit was filed by Shri K.G. Shah, Superintendent in the
office of Regional Passport Office, inter alia, setting out the following facts.
 
  ".......... On receipt of the said application, as per the procedure and

practice followed by office of respondent No. 3, the Regional Passport Office called for remarks from the Police Authorities concerned to state as to whether the petitioner had any criminal background and/or as to whether the Police Authority had any objection for issuance of passport in favour of the petitioner. On 25/26th May 1999, the office of the Deputy Commissioner of Police, Special Branch II, C.I.D. Mumbai (hereinafter for sake of brevity referred to as "the said D.C.P") informed our office that as far as the petitioner was concerned it was reported by Tilaknagar Police Station that he was externed in the year 1995 as per Section 56 of the Bombay Police Act vide B. O. No. 16/C/43/95 by the Dy. Commissioner of Police, Zone V and was ordered to execute bond for good behaviour with two sureties of Rs. 25,0007- each. The said D.C.P. further informed that the petitioner was the brother of notorious gangster by name Rajendra Nikalje alias Chhota Rajan. In the circumstances, the D.C.P. informed us that they had strong objection to issuance of Indian Passport to the petitioner as the police suspected the misuse of the passport for criminal activities. In the light of the above, the D.C.P. informed that the case was "not recommended"."

7. This court was not satisfied with the affidavit filed on behalf of the respondents therein and remanded the matter back to the Regional Passport Officer, Mumbai for hearing the petitioner before passing an order on his application for grant of passport facility. The petitioner, indeed, was heard but for the selfsame reasons, the petitioner's application for issuance of passport and the passport facility was rejected. The order passed by the Regional Passport Officer on 9th October, 2000 also, therefore, is not sustainable in law and cannot be maintained since there is no material against the petitioner which may justify denial of passport to him.

8. The question that arises now is what relief may be granted to the petitioner. Once we have held that the order passed by the Regional Passport Officer on 9th October, 2000 refusing passport facility to the petitioner under Sections 6(2)(b) and 5(2)(c) and the order passed by the appellate authority on 8th June, 2001 under Sections 6(2)(i) and 5(3) are unsustainable, our initial reaction was to send the matter back to the Regional Passport Officer, Mumbai for reconsideration of the matter. On a deeper thought, however, we found that remanding the matter back to the Regional Passport Officer, in the peculiar facts and circumstances of the present case, may not subserve the ends of justice. It is not in dispute before us that the petitioner's application for issuance of passport and passport facility was refused solely on the ground that the petitioner's case was not recommended by the police authorities. The police authorities did not recommend the petitioner's case because the petitioner is the brother of one Chhota Rajan against whom various offences are registered. In so far as the petitioner is concerned, it transpires from the affidavit of Mr. Joseph Siloo Main, Senior Inspector of Police, SB-II, C.I.D. that preventive action was taken under Section 56 of the Bombay Police Act externing him from Mumbai. The said externment order was never implemented as the petitioner submitted a bond of Rs. 25,000/- as required by the concerned police authority for his good conduct. There is absolutely nothing placed before us that during the period the bond of Rs. 25000/- was in force for the period from 5-1-1995 to 4-1-1997 the petitioner misconducted or acted in breach of the terms of the bond. As a matter of fact, it is not in dispute before us that the bond of Rs. 25000/- submitted by the petitioner for the good conduct was effective for the period from 5-1-1995 to 4-1-1997 and at the time of submission of the bond the petitioner was holding passport and no action whatsoever was taken against the petitioner for revocation or suspension of that passport or for impounding the said passport when the action was taken against the petitioner under section 56 of the Bombay Police Act. The petitioner's application for issuance of passport facility was rejected earlier on 24th April, 2000 by the Regional Passport Officer and the Appellate Authority on 13th June, 2000 but the said orders were not found sustainable by this Court. In the earlier writ petition filed by the petitioner challenging the said orders and despite the remand of the matter to the Regional Passport Officer, again the petitioner's application for issuance of passport has been rejected on unsustainable grounds. In the circumstances, we are of the view that in the instant case, it would be of no use remanding the matter back to Regional Passport Officer for consideration of the petitioner's application for issuance of passport facility. The authorities appear to us have failed to act in unbiased manner in considering the petitioner's application for issuance of passport facility in accordance and due conformity with law. Remitting the matter again to the same authorities who seem to have predetermined notion about the petitioner as he happens to be brother of a notorious gangster would be travesty of justice. In the backdrop of these facts and the manner in which respondent Nos. 2 and 3 have considered the matter on the application made by the petitioner for issuance of passport facility after the remand, we are satisfied that this is a fit and proper case where we should exercise our constitutional powers and issue appropriate direction to the Regional Passport Officer, Mumbai to issue passport facility to the petitioner. Incidentally we may note that the petitioner's wife and his two children (son and daughter) are holders of Indian passport and there is no material placed before us or referred that such passport has been misused by the petitioner's wife and his children. Mr. Manohar, learned senior counsel for the petitioner submitted that in the event of passport facility being granted to the petitioner, before undertaking travel to the foreign country, the petitioner shall inform Deputy Commissioner of Police Special Branch-II, C.I.D. Mumbai about the place and duration of foreign visit. He, however, submitted that such information may be directed to be kept secret and confidential by the police authorities. He also submitted that ordinarily the petitioner shall travel foreign country with his wife and children, save and except in extra ordinary circumstances.

9. In view of the foregoing discussion, we dispose of the writ petition by following order:

 (i)     The order dated 9th October, 2000 passed by the Regional Passport Officer, Mumbai and the order dated 8th June, 2001 passed by the Joint Secretary (CVP) and Chief Passport Officer, Government of India, Ministry of External Affairs, are quashed and set aside. 
 

 (ii)    The Regional Passport Officer, Mumbai (respondent No. 3) is directed to provide passport facility to the petitioner on the application made by him on 15th February, 1999 in accordance with law and expeditiously, subject to the petitioner's filing an undertaking before this Court within two weeks from today that in the event of passport facility being provided to him, prior to undertaking foreign travel, the petitioner shall in advance intimate to Dy Commissioner of Police, Special Branch II, C.I.D., Mumbai about duration and place of proposed foreign visit. 
 

 (iii)    We observe that the information provided by the petitioner to the Dy Commissioner of Police, Special branch II, CID, Mumbai in respect of his foreign visit shall be kept confidential by the concerned police authorities.  
 

 10. Rule is made absolute in the aforesaid terms. 
 

 11. By our order dated 13th September, 2002 we permitted the respondents to file reply affidavit/counter by 25th September, 2002 subject to payment of cost of Rs. 2500/- to be recovered from the erring official/officer. The reply affidavit has since been filed by respondent Nos. 1 to 3 and accordingly payment of cost of Rs. 2500/- is waived. 
 

 12. Upon the oral prayer made by the learned Senior Counsel for respondent Nos. 1 to 3, operation of this order shall remain suspended for a period of four weeks from the date of issuance of certified copy. 
 

 13. Certified copy expedited.