Satheesh Keerthiyil vs The Union Of India
2023 Latest Caselaw 4801 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
       THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
  THURSDAY, THE 13TH DAY OF APRIL 2023 / 23RD CHAITHRA, 1945
                     WP(C) NO. 1291 OF 2023
PETITIONER:

   SATHEESH KEERTHIYIL,
   AGED 51 YEARS
   SON OF LATE NARAYANAN NAIR,
   SASI NILAYAM, THIRUVALLAMALA POST,
   THRISSUR DISTRICT, KERALA STATE,
   PIN- 680 588
   NOW RESIDING AT 'DAFFODILS',
   POLICE QUARTERS BUS STOP, KANNADI POST,
   KANNADI-I, PALAKKAD DISTRICT, KERALA
   STATE., PIN - 678701

   BY ADVS.
   SHIBIN K.F.
   SEBY JOSEPH


RESPONDENTS:

 1 THE UNION OF INDIA,
   REPRESENTED BY ITS SECRETARY AND THE
   CHIEF PASSPORT OFFICER, PSP DIVISION,
   MINISTRY OF EXTERNAL AFFAIRS,
   GOVERNMENT OF INDIA, ROOM NO.27,
   PATIALA HOUSE, TILAG MARG, NEW DELHI.,
   PIN - 110001

 2 THE REGIONAL PASSPORT OFFICER,
   THE REGIONAL PASSPORT OFFICE COCHIN,
   PANAMPILLY NAGAR POST, COCHIN,
   ERNAKULAM DISTRICT, KERALA STATE., PIN
   - 682036

 3 THE ASSISTANT DIRECTOR,
   BUREAU OF IMMIGRATION, COCHIN
   INTERNATIONAL AIRPORT, NEDUMBASSERY,
   KERALA., PIN - 683111

OTHER PRESENT:

    SRI S MANU DSGI

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 13.04.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) NO. 1291 OF 2023                   2




                                  JUDGMENT

The petitioner is a citizen of India. He is the holder of Indian Passport

bearing Reg. No. N3943843. He has approached this Court being aggrieved

by Ext.P5 order issued by the 2nd respondent by which the passport of the

petitioner has been impounded. The petitioner has sought for issuance of

directions to the respondents to release the passport and for further direction

to grant exemption to the petitioner to travel to the Republic of Yemen

following clause (3) of Ext.P3 notification.

2. Short facts are as under:

The petitioner asserts that he has been working in a Private Trading

Company in the Republic of Yemen for more than two decades. He states

that when he landed at the Cochin International Airport on 11.01.2022 on his

annual visit, the 3rd respondent seized the passport of the petitioner on the

premise that the petitioner had traveled to the Republic of Yemen in violation

of Notification No. S.O.3223 dated 26.9.2017 issued by the Ministry of

External Affairs. Being aggrieved, the petitioner approached this Court, and

the writ petition filed by him was disposed of by Ext.P4 judgment directing

the respondents to take a call on the representation submitted by the

petitioner. In terms of the directions issued, the respondents considered the

representations and, by concluding that the petitioner had gone to Yemen for

employment while the travel ban imposed by the Government of India was in

place, refused to release the passport.

3. The petitioner states that he came to know about the travel ban

issued by the Government only in the year 2020, that too while he was in

Yemen. Immediately thereafter, he addressed a mail to the Ministry of

External Affairs requesting to issue a No Objection Certificate to visit India

and thereafter to go back to Yemen. According to him, he had reiterated in

the mail that he was aware of the serious security concerns, and despite the

same, he intends to go back to Yemen at his own risk and cost. This was

followed up with Ext. P10 email. However, he was issued with Ext.P11,

wherein it is stated that his request cannot be processed, and he was

directed to approach as and when the situation in Yemen improves.

4. The petitioner asserts that this Court has held that if the travel of

the person is inevitable, there would not be any bar for the Central

Government to carve out an exception. It is stated that Ext.P6 certificate

issued by his employer, Abdulghani Ali Alherwi Trading Houses, would reveal

that he has been working since September, 2002 and will continue to work as

such at least till December 2025. He contends that he has also been granted

Ext.P7 Residence Permit by the Republic of Yemen. Reliance is also placed on

clause (3) of Ext.P3 notification issued by the Ministry of External Affairs,

wherein it is stated that relaxation can be granted by the Central government

for specific and essential reasons of travel for which permission for a limited

time period can be granted by the Central Government at the express request

of the applicant, that too at his personal risk without any liability to the

Government of India or to the State Government. There is no reason why

the benefit of such an exemption is not granted to the petitioner. The

petitioner asserts that persons similarly placed as the petitioner have been

granted exemption, as is clear from Exts.P16 and P17 No Objection

Certificates. It is in the above circumstances that the petitioner has

approached this Court seeking the following reliefs:

A. To issue a writ of mandamus and/or any other appropriate writ and/or order

setting aside the Exhibit P5 Order NO. CO5078907016515 dated 15.12.2022

of the 2nd respondent and

B. To issue a writ of mandamus and/or any other appropriate writ, order and/or

direction commanding the respondents to release the passport of the

petitioner bearing No. N3943843 within a time to be fixed by this Hon'ble

Court and

C. To issue a writ of mandamus and/or any other appropriate writ, order and/or

direction to the 1st respondent to grant exemption to the petitioner to travel

to the Republic of Yemen in accordance with the clause 3 of the Ext.P3

Notification S.O.3223(E) of the Ministry of External Affairs within a time to be

fixed by this Hon'ble Court.

5. A counter affidavit has been filed by the 2nd respondent,

wherein it is stated that the request of the petitioner was considered, and it

was rejected, finding that the petitioner had gone to Yemen for employment

while the travel ban imposed by the Government of India was in place. It is

stated that Ext. P10 request for relaxation was given by the petitioner by

invoking clause 3 of the notification while the petitioner was in Yemen. It is

stated that NOC should have been obtained before traveling to Yemen in the

first place. It is stated that clause 3 of Notification No. S.O.3223(E) dated

26.09.2017 provides that Central Government can relax the restrictions for

specific and essential reasons for travel, and permission can be granted only

for a limited period. As the petitioner's request was to travel to Yemen and

continue with his employment till December 2025, the same was rejected. It

is stated that the notification issued by the Central Government is a policy

decision of the Government of India, Ministry of External Affairs, based on

various factors and that this Court may not interfere.

6. I have considered the submissions advanced by Sri. Shibin K.F

and Sri.S Manu, the learned DSGI.

7. The petitioner has placed materials before this Court to

substantiate that the petitioner has been working in a trading firm by the

name "Abdulghani Ali Alherwi Trading Houses" in Yemen since September

2002. He has been granted a Residence Permit by the Republic of Yemen,

and his employer has issued a certificate that he can possibly work in that

firm for at least till December 2025. From Ext.P5 order issued by the RPO,

following directions issued by this Court, it is luculent that the authority had

taken a decision to impound the passport on the premise that the petitioner

had traveled to Yemen while the travel ban issued by Gazette Notification

dated 26.9.2017 was in force. The specific case of the petitioner is that at the

time of issuing the travel ban, the petitioner was working in Yemen, and he

became aware of the ban only in the year 2020. Immediately thereafter,

while he was in Yemen, he gave Ext.P8 and P10 representations seeking

exemption in terms of clause 3 of Notification dated 26.9.2017. From Ext.P5

order, his request was rejected by insisting that the request for exemption

must be given before traveling to the foreign country. The respondents have

failed to take note that the petitioner has been working in Yemen from 2002

onwards and that he was abroad at the time of issuance of notification. The

records produced by the petitioner before this Court clearly substantiate the

said fact. In that view of the matter, I am of the view that the petitioner has

not intentionally and with malafide intent violated the notification. It is trite

that impounding the passport of a citizen based on reasons which cannot be

sustained would affect the right to life guaranteed to the citizen under Article

21 of the Constitution of India. In that view of the matter, Ext.P5 order

issued by the 2nd respondent cannot be sustained under law.

8. The next question is whether directions can be issued to the

respondents to grant exemption to the petitioner to travel to the Republic of

Yemen following clause 3 of Ext.P3 notification issued by the Ministry of

External Affairs. Clause 3 of Ext.P3 notification reads as under:

The aforesaid directions may also be relaxed by the Central Government for

specific and essential reasons of travel, for which permission for a limited

time period may be granted by the Central Government at the express

request of the applicant who would, nevertheless, travel at his or her own

personal risk without any liability to the Government of India or any State

Government concerned and any such request for exemption may be sent to

[email protected]

9. By virtue of clause 3, the Central Government is entitled to grant

exemption to travel to a country where a travel ban has been imposed for a

limited time period at the express request of the applicant. However, the

applicant will have to travel at his or her own personal risk without any

liability to the Government.

10. In the counter affidavit, the respondents highlighted that the

security situation in Yemen is fragile and adverse. They have also highlighted

the extreme nature of the conflicts and the details of Indians who have lost

their life. In the notification, it has also been stated that travel to Yemen

would seriously impair the conduct of foreign affairs of the Government of

India. The petitioner has not challenged the notification but has only

requested to grant an exemption following clause 3. As rightly submitted by

the learned DSGI, notification clearly states that exemption for travel can only

be granted for a limited time period. The exemption orders produced by the

petitioners as Exts.P16 and P17 also reveal that No Objection Certificate has

been issued for short periods. It would be open to the petitioner to approach

the respondents and seek a No Objection Certificate for travel for shorter

periods and there is no reason why such requests shall not be taken up for

consideration and proper orders are issued.

11. In view of the discussion above, this writ petition is disposed of

by ordering as under:

a) Ext.P5 order issued by the 2nd respondent will stand set aside.

b) There will be a direction to the respondents to release the

passport bearing No. N3943843 to the petitioner.

c) It would be open to the petitioner to file appropriate application

for exemption to travel to the Republic of Yemen strictly in

accordance with clause 3 of Ext.P3 notification for a limited

period. If such an application is filed, the respondent concerned

shall consider the same and take a decision within four weeks

from the date of filing of the application.

sd/-

RAJA VIJAYARAGHAVAN V, JUDGE

PS/18/4/2023

APPENDIX OF WP(C) 1291/2023

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE PASSPORT OF THE PETITIONER DATED 27-10-2015

Exhibit P2 A TRUE COPY OF THE SEIZURE LETTER DATED 11-01-2022 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER

Exhibit P3 A TRUE COPY OF THE NOTIFICATION BEARING NO.

S.O. 3223 DATED 26-09-2017

Exhibit P4 A TRUE COPY OF JUDGMENT IN W.P. (C) NO. 33881 OF 2022 DATED 04-11-2022

Exhibit P5 A TRUE COPY OF THE ORDER DATED 15-12-2022 BEARING NO. CO5078907016515

Exhibit P6 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE MANAGING DIRECTOR OF THE FIRM NAMED 'ABDULGHANI ALI ALHERWI TRADING HOUSES' DATED 01-04-2021

Exhibit P7 A TRUE COPY OF RESIDENCE PERMIT DATED NIL ISSUED BY THE REPUBLIC OF YEMEN TO THE PETITIONER

Exhibit P8 A TRUE COPY OF COMPUTER-GENERATED PRINTOUT OF E-MAIL SENT BY THE PETITIONER REQUESTING CLARIFICATION ON NOC FROM THE MOEA, DATED 15-01-2020

Exhibit P9 A TRUE COPY OF COMPUTER-GENERATED PRINTOUT OF REPLY E-MAIL SENT BY THE MOEA DATED 23-01-2020

Exhibit P10 A TRUE COPY OF COMPUTER-GENERATED PRINTOUT OF THE E-MAIL SHOWING THE 1ST APPLICATION OF THE PETITIONER FOR EXEMPTION AND NOC DATED 11-02-2021

Exhibit P11 A TRUE COPY OF COMPUTER-GENERATED PRINTOUT OF THE E-MAIL, SHOWING THE REJECTION OF PETITIONER'S EXHIBIT P10 APPLICATION, DATED

08-06-2021

Exhibit P12 A TRUE COPY OF DEATH CERTIFICATE OF THE MOTHER OF THE PETITIONER DATED 28-10-2020

Exhibit P13 A TRUE COPY OF COMPUTER-GENERATED PRINTOUT OF E-MAIL, SHOWING THE DEMAND OF THE OSD(GULF) TO AGAIN APPLY FOR NOC, DATED 12-08-2022

Exhibit P14 A TRUE COPY OF COMPUTER-GENERATED PRINTOUT OF E-MAIL, SHOWING THE 2ND TIME APPLICATION OF THE PETITIONER FOR NOC, DATED 29-08-2022

Exhibit P15 A TRUE COPY OF REQUEST LETTER ISSUED BY THE MANAGING DIRECTOR OF 'ABDULGHANI ALI ALHERWI TRADING HOUSES' DATED 12-08-2022

Exhibit P16 A TRUE COPY OF NOC GRANTED TO A HOLDER PASSPORT BEARING NO. Z2257966 DATED 19-05-2022

Exhibit P17 A TRUE COPY OF NOC GRANTED TO A HOLDER PASSPORT BEARING NO. T6844532 DATED 29-08-2022

Exhibit P18 A TRUE COPY OF THE W.P.(C) NO. 33881 OF 2022, WITHOUT EXHIBITS AND DATED 18-10-2022

Exhibit P19 A TRUE COPY OF THE WORK VISA ISSUED BY THE REPUBLIC OF YEMEN TO THE PETITIONER DATED 23-09-2002

Exhibit P20 A TRUE COPY OF THE RESIDENCE PERMIT ISSUED BY THE REPUBLIC OF YEMEN TO THE PETITIONER DATED 22-09-2003

Exhibit P21 A TRUE COPY OF THE RESIDENCE PERMIT ISSUED BY THE REPUBLIC OF YEMEN TO THE PETITIONER DATED 06-09-2004

Exhibit P22 A TRUE COPY OF THE RESIDENCE PERMIT ISSUED BY THE REPUBLIC OF YEMEN TO THE PETITIONER DATED 25-07-2005

Exhibit P23 A TRUE COPY OF THE RESIDENCE VISA ISSUED BY THE REPUBLIC OF YEMEN TO THE PETITIONER DATED 09-09-2006

Exhibit P24 A TRUE COPY OF THE RESIDENCE VISA ISSUED BY THE REPUBLIC OF YEMEN TO THE PETITIONER DATED

07-10-2007

Exhibit P25 A TRUE COPY OF THE RESIDENCE VISA ISSUED BY THE REPUBLIC OF YEMEN TO THE PETITIONER DATED 25-08-2008

Exhibit P26 A TRUE COPY OF THE RESIDENCE VISA ISSUED BY THE REPUBLIC OF YEMEN TO THE PETITIONER DATED 10-08-2009

Exhibit P27 A TRUE COPY OF THE RESIDENCE VISA ISSUED BY THE REPUBLIC OF YEMEN TO THE PETITIONER DATED 07-08-2010

Exhibit P28 A TRUE COPY OF THE RESIDENCE VISA ISSUED BY THE REPUBLIC OF YEMEN TO THE PETITIONER DATED 12-08-2011

Exhibit P29 A TRUE COPY OF THE RESIDENCE VISA ISSUED BY THE REPUBLIC OF YEMEN TO THE PETITIONER DATED 18-09-2012

Exhibit P30 A TRUE COPY OF THE RESIDENCE PERMIT ISSUED BY THE REPUBLIC OF YEMEN TO THE PETITIONER DATED 17-06-2013

Exhibit P31 A TRUE COPY OF THE RESIDENCE PERMIT ISSUED BY THE REPUBLIC OF YEMEN TO THE PETITIONER FOR THE PERIOD 2014-2015 DATED NIL

Exhibit P32 A TRUE COPY OF THE RESIDENCE PERMIT ISSUED BY THE REPUBLIC OF YEMEN TO THE PETITIONER DATED 12-08-2015

Exhibit P33 A TRUE COPY OF THE RESIDENCE PERMIT ISSUED BY THE REPUBLIC OF YEMEN TO THE PETITIONER DATED 14-02-2016

Exhibit P34 A TRUE COPY OF THE RESIDENCE PERMIT ISSUED BY THE REPUBLIC OF YEMEN TO THE PETITIONER DATED 11-02-2017

Exhibit P35 A TRUE COPY OF THE RESIDENCE VISA ISSUED BY THE REPUBLIC OF YEMEN TO THE PETITIONER FOR THE PERIOD 2018-2019 DATED NIL

Exhibit P36 A TRUE COPY OF THE RESIDENCE PERMIT ISSUED BY THE REPUBLIC OF YEMEN TO THE PETITIONER FOR THE PERIOD 2019-2020 DATED NIL

Exhibit P37 A TRUE COPY OF THE RESIDENCE PERMIT ISSUED BY THE REPUBLIC OF YEMEN TO THE PETITIONER DATED 08-09-2020

Exhibit P38 A TRUE COPY OF THE RESIDENCE PERMIT ISSUED BY THE REPUBLIC OF YEMEN TO THE PETITIONER FOR THE PERIOD 2021-2022 DATED NIL