Madras High Court
M.Mohamed Ismayil vs The Additional Secretary (Psp) ... on 29 September, 2023
WP(MD)No.15155 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
WP(MD)No.15155 of 2023
and
WMP(MD)Nos.12764, 12766 of 2023
M.Mohamed Ismayil .. Petitioner
v.
1.The Additional Secretary (PSP) cum Chief Passport Officer,
PSP Division,
Ministry of External Affairs,
Patiala House,
Thilak Mark,
New Delhi.
2.The Passport Issuing Authority,
Regional Passport Office,
Bharathi Ula Veethi,
K.Pudur,
Madurai.
3.The Commissioner of Police,
Tirunelveli City.
4.The Inspector of Police,
Melapalayam Police Station,
Tirunelveli City. .. Respondents
1/10
https://www.mhc.tn.gov.in/judis
WP(MD)No.15155 of 2023
Writ Petition filed under Article 226 of the Constitution of India
seeking issuance of a Writ of Certiorarified Mandamus calling for the
records relating to the impugned order passed by the second respondent
dated 25.06.2021 in connection with the petitioner's passport application
in File No.MD2073021337520, quash the same and consequently,
directing the respondents to reissue passport to the petitioner.
For Petitioner : Mr.R.Anand
For Respondents : Mr.J.Alaguram Jothi,
Central Government Standing Counsel
for R.1, R.2
Mr.P.Kottaichamy,
Government Advocate (Crl. Side)
for R.3, R.4
*****
ORDER
The petitioner, claiming to be the President of a Jamath, intended to
travel to Mecca and Madina with his family members as a Pilgrimage. He
was already issued with a passport on 23.09.2008 and the same was
expired. Therefore, the petitioner has filed an application for reissuance of
passport. The application of this petitioner was rejected by referring
Section 6(2) of the Passport Act and also the report of the third
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WP(MD)No.15155 of 2023
respondent / Commissioner of Police that the petitioner is having
connection with prohibited organisation. Challenging the same, the
petitioner has filed this writ petition.
2.Learned Counsel for the petitioner submitted that the petitioner is
the President of a Jamath. A criminal case was registered as against him in
the year 2001 on the issue between two different sections of the religion
and this petitioner was convicted by the Trial Court. However, this Court,
in Crl.A(MD)No.682 of 2003, dated 20.09.2005, has set aside the
conviction and sentence imposed as against this petitioner. Yet another
case was registered as against this petitioner in Crime No.480 of 2017. The
case was tried before the Judicial Magistrate Court No.5, Tirunelveli, in
C.C.No.213 of 2018 and the same was also ended in acquittal by judgment
dated 14.07.2019. Therefore, as on date, there is no criminal case pending
as against the petitioner.
3.Learned Central Government Standing Counsel for the Passport
Authority submitted that the petitioner is having contacts with prohibited
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WP(MD)No.15155 of 2023
organization and therefore, he may indulge in activities prejudicial to the
sovereignty and integrity of this Country.
4.Learned Government Advocate (Crl. Side) for the Police admitted
the contention of the petitioner that the cases registered as against him
ended in acquittal and that as on date, there is no case pending as against
the petitioner.
5.This Court considered the rival submissions made on either side
and perused the available materials.
6.The petitioner is the President of a Jamath and he was already
issued with a passport in the year 2008. It was expired and the petitioner
has applied for reissuance of passport for the purpose of a Pilgrimage to
Mecca and Madina. Though the petitioner involved in two criminal cases,
both the cases ended in acquittal. As on date, there is no criminal case
pending as against the petitioner.
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WP(MD)No.15155 of 2023
7.Section 6 of the Passport Act, 1967, prescribes certain restrictions
for issuing a Passport and the same is extracted as under:-
“6. Refusal of passports, travel documents. etc.
(1) Subject to the other provisions of this Act, the
passport authority shall refuse to make an endorsement for
visiting any foreign country under clause (b) or clause (c) of
sub-section (2) of section 5 on any one or more of the
following grounds, and no other ground, namely: -
(a) that the applicant may, or is likely to, engage in
such country in activities prejudicial to the sovereignty and
integrity of India:
(b) that the presence of the applicant in such country
may, or is likely to, be detrimental to the security of India;
(c) that the presence of the applicant in such country
may, or is likely to, prejudice the friendly relations of India
with that or any other country,
(d) that in the opinion of the Central Government the
presence of the applicant in such country is not in the public
interest.
(2) Subject to the other provisions of this Act, the
passport authority shall refuse to issue a passport or travel
document for visiting any foreign country under clause (c) of
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WP(MD)No.15155 of 2023
sub-section (2) of section 5 on any one or more of the
following grounds, and on no other ground, namely: -
(a) that the applicant is not a citizen of India.,
(b) that the applicant may, or is likely to, engage
outside India in activities prejudicial to the sovereignty and
integrity of India.,
(c) that the departure of the applicant from India may,
or is likely to, be detrimental to the security of India;
(d) that the presence of the applicant outside India
may, or is likely to, prejudice the friendly relations of India
with any foreign country;
(e) that the applicant has, at any time during the
period of five years immediately preceding the date of his
application, been convicted by a court in India for any
offence involving moral turpitude and sentenced in respect
thereof to imprisonment for not less than two years;
(f) that proceedings in respect of an offence alleged to
have been committed by the applicant are pending before a
criminal court in India;
(g) that a warrant or summons for the appearance, or
a warrant for the arrest, of the applicant has been issued by
a court under any law for the time being in force or that an
order prohibiting the departure from India of the applicant
has been made by any such court;
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WP(MD)No.15155 of 2023
(h) that the applicant has been repatriated and has not
reimbursed the expenditure incurred in connection with such
repatriation;
(i) that in the opinion of the Central Government the
issue of a passport or travel document to the applicant will
not be in the public interest.”
8.By referring to Sections 6(2)(b) and 6(2)(d) of the Act, the
Passport Authority has rejected the petitioner's application for reissuance
of Passport under Section 5(2)(c) of the Act. Though the respondents claim
that the petitioner would indulge in activities prejudicial to the sovereignty
and integrity of this country, they have not produced any material to
substantiate the same. The fact remains that there is no criminal case
pending as against the petitioner, as on date.
9.A Division Bench of the High Court of Punjab and Haryana in
Rajinder Kaur and Others v. Union of India and Others [AIR 2004 P&H
347], after discussing the provisions available u/s.6(2)(b) of the Act, has
held as follows:-
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WP(MD)No.15155 of 2023
“9. We have already noticed that according to the
contentions raised on behalf of the respondents before us, the
passports cannot be issued to the petitioners In light of the
provisions contained in Section 6 (2)(b) of the Act. Under Section
6 (2)(b) of the Act it is stated that the passport authority shall
refuse to issue a passport on the grounds that the applicant may,
or is likely to, engage outside India in activities prejudicial to the
sovereignty and integrity of India. A person can be denied the
right to travel abroad if the authorities are satisfied that
ingredients of this provision are satisfied. The language of the
section indicates the gravity of the involvement or likely
involvement of an applicant in activities which would be
prejudicial to the sovereignty and integrity of the country. These
provisions, thus, must receive a strict construction as their
consequences in law are not only serious but have the effect of
taking away freedom granted to the petitioners in law. Before it
could be stated that a person is involved in activities which are
prejudicial to the sovereignty of the country, there must be some
reasonable and cogent material in possession of the respondents
to show involvement of the petitioners in such activities. The
expression, "likely to" cannot be treated so lightly as to include
every activity and relationship to be prejudicial to the
sovereignty of the State.”
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WP(MD)No.15155 of 2023
10.Following the above ratio and in the absence of any concrete
material, this Court is not inclined to deny the request of the petitioner.
Accordingly, this writ petition is allowed and the impugned order dated
25.06.2021 passed by the second respondent is set aside. The petitioner is
directed to file an affidavit of undertaking that he will not indulge in any
activities prejudicial to the interest and sovereignty of this country. On
such filing of affidavit, the second respondent shall consider and reissue
the Passport to the petitioner.
There shall be no order as to costs. Connected miscellaneous
petitions are closed.
Index : Yes / No 29.09.2023
NCC : Yes / No
Internet : Yes
gk
To
1.The Additional Secretary (PSP) cum Chief Passport Officer,
PSP Division,
Ministry of External Affairs,
Patiala House,
Thilak Mark,
New Delhi.
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WP(MD)No.15155 of 2023
B.PUGALENDHI, J.
gk
2.The Passport Issuing Authority,
Regional Passport Office,
Bharathi Ula Veethi,
K.Pudur,
Madurai.
3.The Commissioner of Police,
Tirunelveli City.
4.The Inspector of Police,
Melapalayam Police Station,
Tirunelveli City.
WP(MD)No.15155 of 2023
29.09.2023
https://www.mhc.tn.gov.in/judis
