Bombay High Court

Sandeep S/O Harish Kewlani vs Union Of India Thr. Its Officer Eow, Of ... on 8 January, 2025

2025:BHC-NAG:185




              Judgment

                                                                         336 wp877.24

                                                1

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                          NAGPUR BENCH, NAGPUR

                         CRIMINAL WRIT PETITION NO.877 OF 2024

              Mr.Sandeep s/o Harish Kewlani,
              aged about- , occupation business,
              r/o plot No.24, Gokulpeth,
              Canal Road, Nagpur.                      ..... Petitioner.

                                       :: V E R S U S ::

              State of Maharashtra,
              through its officer,
              Economic Offences Wing of CBI,
              Mumbai.                           ..... Respondent.
              =================================
              Shri A.S.Kesari, Counsel for the Petitioner.
              Shri P.Sathianathan, Counsel for the Respondent.
              =================================

              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 02/01/2025
              PRONOUNCED ON : 08/01/2025

              JUDGMENT

1. By this petition, the petitioner seeks following reliefs:

1. To issue an appropriate writ/order/direction

to quash and set aside impugned order dated

11.3.2024 passed by learned Additional Sessions

.....2/-

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336 wp877.24

Judge on Exhibit-273 in Special Case No.3/2017

as being arbitrary, illegal, capricious, and against

settled principles of law, and

2. To issue an appropriate writ/order/direction

to hold and declare that the respondent

authority cannot seize Passport invoking

provisions of Section 102 of the Code of

Criminal Procedure and the act of the

respondent authority of seizing the Passport is

arbitrary, illegal, and capricious and direct the

respondent authority to release and hand over

the Passport to the petitioner.

2. Heard learned counsel Shri A.S.Kesari for the petitioner

and learned counsel Shri P.Sathianathan for the respondent

authority. By consent of learned counsel appearing for parties,

the petition is taken up for final hearing.

.....3/-

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336 wp877.24

3. Learned counsel for the petitioner submitted that the

petitioner is engaged in film industry as Writer and Director in

Bollywood and also a Businessman. First Information Report

was lodged against him under Sections 420 and 120(b) of the

Indian Penal Code and 13(2) read with 13(1)(d) of the

Prevention of Corruption Act, 1988. The crime was registered

on the basis of a written complaint dated 2.6.2017 by the

Deputy General Manager of Bank of Baroda, Regional Office,

Nagpur against him and other accused persons on an

allegation that accused persons along with other co-accused

persons duped the bank during period 2013-2016. As per the

prosecution case, accused No.1 being Proprietor of S.K.Traders

along with other co-accused persons approached the Bank of

Baroda and obtained Cash Credit Facility to the tune of Rs.300

lacs for his business purpose. Subsequently, loan account was

converted into Non-performing Assets on 30.6.2016. It

revealed to the investigating agency that accused persons

fraudulently and dishonestly diverted the Cash Credit Facility

.....4/-

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336 wp877.24

and caused a wrongful loss to the bank. During course of the

investigation, Passport of the petitioner was seized. As per

contentions of the petitioner, for his business purpose, he has

to travel various countries. The respondent authority

unauthorizedly seized the said Passport. In fact, the

respondent authority has no right to seize and impound the

said Passport by invoking provisions under Section 102 of the

Code of Criminal Procedure. Section 10(3)(e) of the Passports

Act, 1967 is a special provision and impounding of Passport

can only be done by the Passport authority under the said

Section and, therefore, seizing and impounding of the Passport

is illegal activity and as such the same is liable to be quashed

and set aside. The application moved by the petitioner for

directing the Central Bureau of Investigation to release the

Passport is illegally rejected by learned Judge below and,

therefore, the said order requires to be quashed and set aside.

4. In support of his contentions, learned counsel for the

petitioner has placed reliance on the decision of the Karnataka

.....5/-

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High Court in the case of Praveen Surendran vs. State of

Karnataka and anr1.

5. Learned counsel for the respondent authority strongly

opposed the petition and submitted that learned Judge below

has already permitted the petitioner to travel abroad. As far as

further permission to travel abroad is concerned, the petitioner

can approach the authority and the authority can reconsider

the same. As such, the petition becomes infructuous and the

same is liable to be disposed of. It is further contended that by

invoking provisions under Section 102 of the Code, police have

powers to seize the Passport.

6. The first and foremost contention of learned counsel for

the petitioner is that the respondent authority does not have

powers to seize the Passport in connection with the crime

registered against the petitioner. The powers to seize Passports

are only vested with the Passport authorities under the

Passports Act and the same being special enactment, the

1 2022 SCC OnLine Kar 1661

.....6/-

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336 wp877.24

seizure of the Passport by the respondent authority and

retaining the same is contrary to provisions of the Passports

Act depriving the petitioner from travelling abroad freely and

thereby affecting his fundamental rights.

7. Having given due consideration to submissions made

by learned counsel appearing for parties, it is to be seen that

whether retaining Passport by the respondent authority, after

the same is seized beyond period of four weeks, would amount

to impounding by the police or respondent authority. The

seizure of the Passport in the present case is by invoking

powers under Section 102 of the Code and the Passport is

retained by the court in view of Section 104 of the Code. The

issuance of Passport and its impounding is under special

enactment i.e. the Passports Act. Sub-section (3) of Section 10

of the Passports Act empowers the Passport authority to

impound or cause to be impounded or revoke a Passport or

travel document subject to conditions stipulated in Sub-section

(3) of Section 10 of the Passports Act. One such condition of

.....7/-

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impounding of Passport is that, if the proceedings in respect of

an offence alleged to have been committed by the holder of

the Passport are pending before a Criminal Court in India.

Therefore, the power of the Impounding Authority i.e.

Competent Authority under the Act is traceable to clause (e) of

sub-section (3) of Section 10 of the Act which is the only

provision applicable to the present case. The Passports Act is a

special enactment and is trite that it being a special enactment

would prevail over Section 102 or Section 104 of the

Codewhich empower the Police to seize and the Court to

impound any document. Sub-section (3)(e) of Section 10 of

the Act provides for impounding of a Passport if proceedings in

respect of an offence alleged to have been committed by the

holder of the Passport or travel document are pending before a

criminal court in India.

8. Section 102 of the Code gives powers to the police

officer to seize any property which may be alleged or

suspected to have been stolen or which may be found under

.....8/-

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circumstances which create suspicion of the commission of any

offence. Section 104 of the Code authorizes the court to

impound any document or thing produced before it under the

Code. Sub-section (5) of Section 165 of the Code provides

that the copies of record made under sub-section (1) or sub-

section (3) shall forthwith be sent to the nearest Magistrate

empowered to take cognizance to the offence. Thus, the

Passports Act is a special Act relating to a matter of Passport,

whereas Section 104 of the Code authorizes the Court to

impound document or thing produced before it. Where there

is a special Act dealing with specific subject, resort should be

to that Act instead of general Act providing for the matter

connected with the specific Act as the Passports Act is a special

Act which would prevail.

9. "Impound" means to keep in custody. According to the

"Oxford Dictionary", "impound" means to take legal or formal

possession.

.....9/-

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10. In the present case, the Passport of the petitioner is in

possession of the respondent authority.

11. Reading of Sections 104 of the Code and 10 of the

Passports Act together, the court is empowered to impound any

document or thing produced before it whereas the Passports

Act speaks specifically of impounding of the Passport.

12. In the present case, no steps have been taken under

Section 10 of the Passports Act for impounding of the Passport.

13. Section 102(1) of the Code reads as under:

"Power of police officer to seize certain property:

(1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence."

14. There is a difference between seizing of a document

and impounding a document. A seizure is made at a particular

moment. Whereas, "impounding" is to take possession of a

.....10/-

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document or a thing for being held in custody in accordance

with the law. Learned counsel for the petitioner has placed

reliance on the decision in the case of Praveen Surendran

supra. The said aspect was extensively dealt with by the

Karnataka High Court by referring provisions under Sections

102 and 104 of the Code and 10 of the Passports Act and it is

held that the Passports Act is special enactment and it is trite

that it being special enactment would prevail over Section 102

or Section 104 of the Code which empowers the police to seize

and the court to impound any document. Impounding of any

document produced before the court cannot stretch to an

extent that it can impound the Passport. Therefore, deposit of

the Passport before the court or before the police both will

become without authority of law.

15. This aspect is further considered by the Hon'ble Apex

Court in the case of Chennupati Kranthi Kumar vs. State of

A.P.2 wherein it is held that a relevant decision of this Court on

2 AIR 2023 SC 3633

.....11/-

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the issue involved is in the case of Suresh Nanda vs. CBI3. In

the said decision, it was held that the power under Section 104

of the Code cannot be invoked to impound a Passport. The

reason is that the provisions of the PP Act which deal with the

specific subject of impounding Passports shall prevail over

Section 104 of the Code. Moreover, it was held that under

Section 102(1) of the Code, the Police have the power to seize

the Passport but there is no power to impound the same. It was

held that even if the power of seizure of a Passport is exercised

under Section 102, the Police cannot withhold the said

document and the same must be forwarded to the Passport

Authority. It is, thereafter, for the Passport Authority to decide

whether the Passport needs to be impounded.

16. In the light of the well settled legal position and

pronouncement of the Hon'ble Apex Court, neither the police

nor the criminal court under Section 102 or Section 104 of the

Code can impound a Passport. Impounding of a Passport is by

3 MANU/SC/7020/2008

.....12/-

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the authority vested under the Act as depicted therein.

Therefore, retaining of the Passport by the respondent

authority without any authority leads to allow the writ petitoin

by issuing a writ of mandamus for release of the Passport by

reserving the liberty of the respondent authority to act in

accordance with the mandate of Section 10 of the Passports

Act. Considering the apprehension that the petitioner is

involved in an economic offence and he may abscond by

travelling abroad, some conditions can be imposed upon the

petitioner. As such, I proceed to pass following order:

ORDER

(1) The Writ Petition is allowed.

(2) Writ of mandamus is issued to the respondent authority to

release the Passport of the petitioner which is held in the

custody of the respondent.

.....13/-

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(3) The respondent authority is at liberty to take an

appropriate action in accordance with the mandate of Section

10 of the Passports Act.

(4) The petitioner shall inform the respondent authority as

well as the special court whenever he intends to travel abroad

by furnishing details such as period of travel and return to

India along with dates, local address along with the address

proof where the petitioner is visiting, cell phone number

which he intends to use when he is travelling abroad and after