Gaur Hari Guchhait vs The Union Of India And Others
2022 Latest Caselaw 5965 Cal

AD-07
Ct No.09
26.08.2022
TN
                           WPA No. 19583 of 2021

                           Gaur Hari Guchhait
                                    Vs.
                      The Union of India and others


             Mr. Debashis Banerjee,
             Mr. Supreem Naskar
                                                .... for the petitioner

             Mr. Hemonta C. Mitter
                                            .... for the Union of India



                  Learned counsel for the petitioner contends that

             although Section 10(3)(e) of the Passports Act, 1967

             envisages that, 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, the passport authority may

             impound or cause to be impounded or revoke a

             passport or travel document, a coordinate Bench of

             this court, vide order dated April 21, 2021 passed in

             W.P.A. 8637 of 2020 (Souvik Mukherjee vs. The

             Additional   Secretary   and   Chief   Passport   Officer,

             Passport Seva Programme Division, Ministry of External

             Affairs, Union of India and Others, held that there was

             an Office Memorandum dated December 11, 2017

             issued by the Chief Passport Officer, which made it

             clear that impounding/revoking of passport under the
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relevant Sections of the Passports Act, 1967 is purely

discretionary in nature.

      More importantly, the learned Single Judge went

on to observe that the impounding of passport should

be based on the explanation given by the passport

holder in response to the show cause notice issued by

the authority. A passport should not be impounded,

it was held, simply because a criminal case is said to

be pending.     The relevant Passport Officer should

weigh the merit of the case and use his discretion for

impounding the passport.

      Learned   counsel    for    the   petitioner   places

reliance also on a judgment of a learned Single Judge

of the Delhi High Court, reported at 2013 SCC OnLine

Del 3007 (Manish Kumar Mittal vs. Chief Passport

Officer), wherein the same proposition was iterated.

      With    utmost   respect,     I   agree   with   the

proposition laid down by the learned Single Judges of

this court and the Delhi High Court, as cited by the

petitioner.

      Although learned counsel for the respondent-

authorities points out that the Passports Act, 1967

merely contemplates the satisfaction on Section 10(3)

of the said Act and Clause (e) thereof provides that if

proceedings in respect of an offence alleged against

the holder of a passport is pending before a criminal

court, the passport can be revoked or impounded,

such argument does not cut ice, since the ratio laid

down in the judgments cited by the petitioner are

crystal clear on the issue that mere pendency of a

criminal proceeding against the passport holder would

not be a sufficient reason to prompt the Passport

Authority to take the serious step of revocation and/or

impoundment of the passport.

Apart from the fact that in the present case the

petitioner, in answer to his show cause, clearly

indicated before the authorities that the petitioner was

a septuagenarian and has been suffering from several

ailments and, being a widower, he seeks to visit his

son, residing in Japan, immediately, primarily for the

purpose of treatment and support, the Appellate

Authority and/or the Passport Authority, while

issuing the show cause, did not consider such

explanation on merits at all.

Moreover, since the relevant Passport Officer in

the instant case did not weigh the merit of the case

before exercising his discretion for impounding the

passport but mechanically relied on the mere

pendency of the criminal proceeding against the

petitioner to impound the passport, the order of the

Appellate Authority as well as the first authority

cannot stand the scrutiny of law.

However, since the writ court is not a fact-

finding forum, appreciation of the contentions of the

petitioner on merits ought not to be done by this

court.

Accordingly, WPA No. 19583 of 2021 is disposed

of by directing the Chief Passport Officer and

Appellate Authority, CPV Division, Ministry of

External Affairs, Government of India (respondent

no.2 herein) to rehear the appeal bearing

No. VIII/402/App-33/2021, preferred by the

petitioner before the said authority, afresh and to pass

a fresh decision thereon, upon taking into

consideration the yardsticks stipulated in the

coordinate Bench judgments as indicated above, as

expeditiously as possible and upon giving another

opportunity of hearing to the petitioner.

Such exercise of rehearing and taking a decision

afresh on the said appeal shall be concluded positively

within one month from this date. Immediately upon a

decision being taken thereon in the light of the above

observations, the Appellate Authority shall intimate its

order to the petitioner by any expedient mode.

The parties shall act on the written

communication by the learned Advocates for the

parties, accompanied by a server copy of this order,

without insisting upon prior production of a certified

copy thereof.

There will be no order as to costs.

Urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance with the requisite formalities.

(Sabyasachi Bhattacharyya, J.)