Madras High Court
Unknown vs Senior Intelligence Officer on 16 September, 2022
Crl.R.C.Nos.1136 & 1137 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 02.09.2022
DATED : 16.09.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.R.C.Nos.1136 and 1137 of 2022
Petitioner in
Tangkeswaran .. Crl.R.C.No.1136 of 2022
Petitioner in
T.Nandhini .. Crl.R.C.No.1137 of 2022
Vs
Senior Intelligence Officer
Directorate of Revenue Intelligence
Regional Unit
1103, Trichy Road
Coimbatore - 641 018. .. Respondent
Prayer in Crl.R.C.No.1136 of 2022: Criminal Revision Case filed under
Section 397 read with 401 Code of Criminal Procedure, to call for the
records in and connected with the CMP.No.20975 of 2022 in
F.No.DRI/CRU/VIII/48/ENQ-1/INT-2/2022-CBE on the file of the Chief
Judicial Magistrate, Coimbatore at 01.08.2022 and set aside the same and
cause return of the Malaysian Passport bearing No.A55506477;
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Crl.R.C.Nos.1136 & 1137 of 2022
Prayer in Crl.R.C.No.1137 of 2022: Criminal Revision Case filed under
Section 397 read with 401 Code of Criminal Procedure, to call for the
records in and connected with the CMP.No.20974 of 2022 in
F.No.DRI/CRU/VIII/48/ENQ-1/INT-2/2022-CBE on the file of the Chief
Judicial Magistrate, Coimbatore at 01.08.2022 and set aside the same and
cause return of the Malaysian Passport bearing No.A55506479.
For Petitioner Mr.B.Kumar
in both Crl.R.Cs : Senior Counsel
for Mr.B.Satish Sundar
For Respondent : Mr.N.P.Kumar
Special Public Prosecutor
ORDER
On 29.04.2022, the Directorate of Revenue Intelligence,
Coimbatore received a secret information that four Malaysian passengers,
traveling by Scoot Airlines, Flight No.TR540 from Singapore to
Coimbatore are likely to carry Gold with an intent to smuggle it to India
without payment of the applicable customs duty. Upon such information,
surveillance was monitored and the four passengers were identified and
upon search, there was nothing found in respect of two passengers and
they were allowed to go, while, in respect of Tangkeswaran, bearing
Malaysian Passport No.A55506477 and one Nandhini Tangkeswaran
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bearing of Malaysian Passport No.A55506479, in two parcels in their
bags, covered with white color adhesive tapes, were found to be gold bars
weighing 2.1kgs each, totaling to 4.2kgs were seized. Before the seizure,
the said persons answered that they did not have any such material with
them. Therefore, the said persons were arrested and remanded to custody,
pending adjudication proceedings as well as pending criminal prosecution
by the authorities under the Customs Act.
2. While so, after being released on bail, the said two Malaysian
nationals have filed Crl.M.P.Nos.20974 and 20975 of 2022 for return of
their respective passports to them. The same was resisted by the
respondent / prosecution on the ground that the petitioners have to face the
criminal prosecution and being Malaysian nationals, the passports cannot
be returned to them as they would flee justice. After considering the
materials on record and the submissions on either side, by an order dated
01.078.2022, the learned Chief Judicial Magistrate, Coimbatore dismissed
both the applications. Aggrieved by the same, the present revisions are
filed.
3. Heard Mr.B.Kumar, learned Senior Counsel appearing on behalf
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of the petitioners and Mr.N.P.Kumar, learned Special Public Prosecutor
appearing on behalf of the prosecution.
4. Learned Senior Counsel would submit that this is a case in which
the petitioners are alleged to have brought in 2.1kgs of Gold each and the
allegation is that they have evaded duty. Therefore, the said Gold,
weighing 4.2kgs are already seized by the authorities and therefore, it
would be in their best interest to appear in the adjudication proceedings as
even as per the prosecution the same is of the total value of Rs.4.58 crores.
Further, even though they are foreign nationals, they are persons of Indian
origin having connections and roots in India and therefore, will not flee
justice and even if allowed to go back to their country, will come back and
face the trial. It may be seen for the said violation, they are forcibly living
in India from 29.04.2022 onwards. In this factual background, learned
Senior Counsel would submit that in the instant case, there is no bail
condition which was imposed on the petitioners/accused to surrender the
passports. The learned Senior Counsel would also take this Court to the
bail orders granted from which it is clear that there is no condition
imposed by the Bail Court. Once the passports are not surrendered by the
petitioners, pursuant to any directions of the Court in bail order, then,
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absolutely the respondents, namely, the Customs Authorities have no
power whatsoever to seize the passports.
5. In this connection, learned Senior Counsel would rely upon the
judgment in Thanapal Vs Assistant Collector of C.E.1, wherein it has been
held that the Customs Authorities have no right to seize the passport under
Section 110 of the Customs Act. The learned Senior Counsel further relied
upon the judgment of this Court in Sri-la-Sri Arunagirinathar Sri
Gnanananda Desika Paramachariya Swamigal, Madurai Vs State of
Tamil Nadu and another2, morefully relying upon paragraphs 7 to 9 of the
said judgment for the proposition that no person can be prevented from
traveling abroad, unless the passport is impounded in the manner known to
law by the Regional Passport Authority, which would be only under
Section 10 of the Passports Act. In the absence of the said proceedings, the
holding of passports by other authorities are illegal. Learned Senior
Counsel further relied upon the judgment in Suresh Nanda Vs Central
Bureau of Investigation3, morefully relying upon paragraph 14 to 16 to
press the proposition that even under Section 102(1) of the Code of
1 1988 (36) E.L.T.421 (Mad.)
2 1987 SCC OnLine Mad 15
3 2008 SCC OnLine SC 168
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Criminal Procedure, the police does not have the power to impound the
passport, wherein, the Hon'ble Supreme Court of India has laid down
differences between seizing of the documents and impounding the
documents. Even after the documents is to be seized, the passport has to be
only impounded and that could be done only by a Passport Authority under
Section 10(3) of the Passports Act.
6. Learned Senior Counsel also further relied upon the judgment in
Avinash Bhosale Vs Union of India4, which also follows Suresh
Nanda's (supra) case. In M.Ramachandar Singh Vs Inspector of Police,
Chennai5 the learned Judge has held that for the mere purpose of ensuring
the presence of the accused for prosecution, the passport need not be
withheld but, can be returned with appropriate conditions. Similarly, in
another judgment of this Court in P.Mahesh Vs State6, this Court had
ordered the return of passport with appropriate conditions. The Learned
Senior Counsel further relied upon the Division Bench Judgment of this
Court in Aircel Cellular Ltd. and others Vs Union of India7, morefully
relying upon paragraph 49 of the said judgment for the proposition that
4 2008 SCC OnLine Bom 1354
5 2011 (268) E.L.T.364 (Mad.)
6 2019 SCC OnLine Mad 10186
7 2016 SCC OnLine Mad 8463
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what the respondent authorities cannot be permitted to do directly, they
cannot be permitted to do indirectly. Therefore, the learned Senior Counsel
prayed that the passport should be directed to be returned to the
petitioners.
7. Per contra, Mr.N.P.Kumar, learned Special Public Prosecutor, by
relying upon the counter affidavit filed in the revisions, would submit that
the petitioners are foreign nationals. When they arrived at the Airport, it
was found that they were indulging in smuggling of Gold bars, therefore
they were arrested. At the time of arrest, the petitioners have left their
passports at the desk of the officers and therefore for the safe custody, the
same is produced before the Court, hence it is not a case of seizure. The
learned Special Public Prosecutor would submit that the original
contention in the revisions that the prosecution is yet to be launched is
incorrect because already the complaint is filed and is taken on file in
CC.No.1698 of 2022 by the learned Chief Judicial Magistrate, Coimbatore
for the offence under Sections 135(1)(a) and 135(1)(b) of the Customs
Act. Therefore, the petitioners are facing serious charges punishable with
maximum imprisonment of five years. Therefore, if the passports are now
returned to the petitioners, they would return back to their country and
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thereafter will never return to face the trial.
8. I have considered the rival submissions made on either side and
perused the material records of this case.
9. At the outset, it is essential for this Court to delineate the legal
positions regarding the claim of the petitioners:
(i) As held by this Court in Thanapal Vs Assistant Collector of C.E.1,
followed by the subsequent judgments, it may be seen that the respondent
authorities do not have the power to seize the passport under Section 110
of the Customs Act;
(ii) It is also correct to contend that the respondent authorities do not have
the power to impound the passports.
But, however, as far as the right of the petitioners to travel is concerned,
firstly all the judgments relied upon by the learned Senior Counsel are of
judgments relating to Indian citizens. As a matter of fact, the citizens of
India have the right to travel abroad unless their passport is impounded
under the Passports Act. As a matter of fact, the word “passport” is defined
under Section 2(b) of the Passports Act and as per the same, it means the
1 1988 (36) E.L.T.421 (Mad.)
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passport issued under the Act. Therefore, the contention of the learned
Senior Court that the passport of the petitioners can be impounded only by
the passport Authorities is incorrect, as the passports of the petitioners are
not issued under the Indian Passports Act, 1967 and therefore, the
Regional Passport Authorities cannot impound the same in exercise of the
powers under Section 10 of the Act.
10. Whenever foreigners are involved, in order to make them to face
the criminal case, two courses are open. Firstly, as held by this Court in
S.T.Gomer Vs Assistant Collector of Customs 8, the Criminal Court has
power to withhold / impound the passport in case of grave offences and in
case of the foreigner, when there is a likelihood of his fleeing from justice.
It is useful to extract paragraph 3 to 8 of the judgment which categorically
clinches the issue:
“3. Mr.Kumar, learned counsel for the petitioner,
relied on Thanapal Vs The Assistant Collector of
Central Excise, Madras (1986 LW (Cri) 114), wherein
David Annoussamy, J. While considering the seizure of
the passport along with the other articles of the
petitioner therein, a foreigner, by the Customs
Department, directed return of the passport since the
seizure of passport by a Customs Officer was not
permissible. A passing reference was also made by the
learned counsel for the petitioner to Satwant Singh Vs
8 1989 SCC OnLine Mad 506
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Assistant Passport Officer, New Delhi (AIR 1967 SC
1836), wherein the Supreme Court had observed that
the right to travel abroad was a fundamental right, in
the absence of law regulating such a right, refusal of a
passport or withdrawal of one given, would violate
Arts. 14 and 21 of the Constitution.
4. Mr.Rajamanickam, per contra, placed reliance on
the decision of S.A.Kader, J. In the Assistant Controller
of Customs House, Madras Vs Abdul Samathu (1985
LW (Cri) 48) and two unreported decisions of this
Court rendered by Sengottuvelan, J., in
Crl.M.P.No.4936 of 2985 and Padmini Jesudurai, J. in
Crl.M.P.No.2520 of 1987 which hold that the Criminal
Court undoubtedly had the power to withhold or
impound the passport of any person, more so of a
foreigner, accused of a grave offence when there is
every likelihood of his leaving the country and making
a mockery of the judicial process against him.
5. Let me now consider the rival contentions of the
learned counsel on either side. David Annoussamy, J.,
in Thanapal's case, (1986 LW (Cri) 114) while holding
that the seizure of passport by the Customs Officer was
not covered by Section 100 of the customs Act and that
the seizure was illegal, observed that it was open to the
respondent (Customs Department) to move the
competent Court to modify the conditions of bail to the
extent desired, so that if the Court thought fit to secure
the accused person as and when required, condition
could be stipulated that the petitioner shall not leave
the country and , to ensure fulfilment of the condition,
order the surrendering of the passport to the Court.
This salutary observation made by this Court must be
observed by the Customs Department, so that it could
be a complete answer for petitions filed for return of
passport and for permission sought to go out of the
country, pending disposal of a prosecution.
6. In the light of the several decisions brought to my
notice as aforementioned, it is clear that if the
circumstances so warrant, the Criminal Court has
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undoubtedly the power to with-hold the passport or to
impound it in cases of grave offences and more so in
a case of a foreigner when there was likelihood of his
fleeing from justice.
7. None of the submissions made by Mr.Kumar can be
taken very serious note of, for humanitarian or other
considerations cannot prevail over the paramount duty
of a Court to ensure a speedy trial and towards that
end, consider the need of the petitioner's presence
before the trial Court. The purpose for which the
petitioner seeks permission to go out of India does not
appear to be one of grave emergency and especially
when the complaint is stated to be ready for institution.
there will be no difficulty in directing the Trial Court to
take up the case for trial as early as possible, after the
institution of the complaint and dispose it of as
expeditiously as may be feasible.
8. As long as a criminal court has the power to
withhold the passport and the passport is now in the
custody of the trial Court and the need for withholding
has arisen only because of the act of the petitioner in
getting himself involved in alleged smuggling, the
difficulties of his own making cannot enure in his
favour, though under Article 21 of the constitution, no
person can be deprived of his right to travel, except
according to the procedure established by law, the
decisions of the Supreme Court in Satwant Singh Vs
Assistant Passport Officer, New Delhi, (AIR 1967 SC
1836) and Maneka Gandhi Vs Union of India, (1978-2-
S.C.R.621) had not touched or affected the powers of a
Criminal Court to withhold or impound the passport of
a person accused of an offence if he is likely to leave
the shores of the country and make good his escape
from the clutches of law. On th facts of his case, the
petitioner has still a condition to obey viz., to report
before the respondent and further his passport has
been withheld by the Criminal Court in view of is
involvement in an offence under the Customs Act. The
complaint against the petitioner is ready to be
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instituted and the trial could be expedited. In view of
the reasoning aforementioned, there is no grouind
made out for either the return of the passport or
granting permission to the petitioners to go to Sri
Lanka, on return of the passport. This petition is
dismissed.”
10. The second course open is the invocation of the Foreigners
Order, 1948 which is issued in exercise of the powers under Section 3 of
the Foreigners Act, 1946 in and by which, under Order 5(2)(b), leave can
be refused by a Civil Authority if it is satisfied that the foreigner's
presence is required in India to answer the criminal charge. The said
provision is extracted hereunder for ready reference:
“......
5. Power to grant permission to depart from India:-
(2) Leave shall be refused if the civil authority is
satisfied that :-
(b) The foreigner's presence is required in India to
answer a criminal charge;......”
11. In this case, the respondent / Customs Authority therefore have
the above two options, that can either to request the Authority under the
Foreigners Act to refuse leave to the petitioners to leave India, as they are
facing criminal charge or persuade the Criminal Court to impound /
withhold the passport.
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12. Accordingly, when the petition has been filed by the petitioners, they
have pleaded to the Court to withhold the passport. Accordingly, learned
Chief Judicial Magistrate has considered the likelihood of the petitioners
fleeing justice and considering the seriousness of the charges faced by
them, withheld the passport. The decision of the learned Chief Judicial
Magistrate is in accordance with the dictum led by this Court in
S.T.Gomer (supra).
13.Therefore, I do not find any merits in the revisions and accordingly, the
revisions stand dismissed. However, since the petitioners are precluded
from leaving for their own country, the learned Chief Judicial Magistrate,
Coimbatore is directed to dispose off the CC.No.1698 of 2022 as
expeditiously as possible, in any event, not later than six months from the
date of receipt of the copy of this order.
Index : yes/no 16.09.2022
Speaking/Non-speaking order
drm
To
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Crl.R.C.Nos.1136 & 1137 of 2022
1. The Chief Judicial Magistrate, Coimbatore.
2. The Senior Intelligence Officer
Directorate of Revenue Intelligence
Regional Unit
1103, Trichy Road
Coimbatore - 641 018..
3. The Public Prosecutor, High Court of Madras.
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Crl.R.C.Nos.1136 & 1137 of 2022
D.BHARATHA CHAKRAVARTHY, J.
drm
Crl.R.C.Nos.1136 & 1137 of 2022
16.09.2022
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