Thomas Bhatti vs Union Of India And Ors
2021 Latest Caselaw 543 P&H

CWP No. 12531 of 2020                                                      :1:


IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

                                *****
                                CWP No. 12531 of 2020
                                Date of decision : 12-02-2021
                                *****

Thomas Bhatti
                                                  ............Petitioner

Versus


Union of India and others
                                                 ...........Respondents

                    *****
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
                    *****

Present:     Mr. Divjyot Singh Sandhu, Advocate for the petitioner.

             Ms. Tanvi Jain, Advocate for the respondents.

                                *****

RITU BAHRI, J.

Through the present petition, the petitioner is seeking

directions in the nature of mandamus directing the respondents to issue

him the passport.

Briefly stated, the facts of the case are that the petitioner

was issued passport No. M1654955 by Regional Passport Officer,

Regional Passport Office, Jalandhar-respondent no.2 (hereinafter

referred to as `the respondent no.2') on 25.8.2014 which was valid till

24.8.2024. Since the above passport got damaged/mutilated, the

petitioner applied for re-issuance of the said passport. The petitioner

got involved in FIR No.58 dated 26.7.2016 under Section 22 of the

NDPS Act registered at Police Station Talwandi Chaudhrian. The

petitioner was granted interim bail vide order dated 9.9.2016 (Annexure

1 of 11

P-4). The interim bail was made absolute vide order dated 20.2.2017

(Annexure P-5) after the report of the chemical examiner was received

since the alleged recovery was of 100 grams of Nitrazepam which is non

commercial in nature. However, the passport authorities have refused to

re-issue the passport to the petitioner.

On notice, reply has been filed by way of affidavit on behalf

of respondent no.2 i.e Regional Passport Officer, Jalandhar. The stand

taken in the reply is that the petitioner applied for the re-issuance of the

passport by suppressing material information with regard to FIR No.58

dated 26.7.2016 registered under Section 22-61-85 of NDPS Act at PS

Talwandi Chaudhrian against the petitioner. The copy of application

made by the petitioner for re issuance of the passport is attached with the

reply as Annexure R/2-1. In accordance with the process, the case of the

petitioner was sent for the police verification. The police authorities had

marked the report of the petitioner as 'Adverse' with the remarks that

"FIR No.58 Dated 26.7.2016 under Section 22-61-85 of NDPS Act

Police Station Talwandi Chaudhrian, Distt. Kapurthala registered against

the applicant". The copy of the adverse police verification report is

attached with the reply as Annexure R/2-2. As per the reply, the

passport of the petitioner was held due to his own act and conduct and

also by the `adverse' police verification marked by the police

authorities(security agencies). The case of the petitioner was again re-

referred to the police authorities for the police verification by referring

the points as mentioned in letter dated 27.8.2020 followed by Reminder-

I dated 18.9.2020 (Annexure R/2-3 respectively). The respondent

received a response dated 11.9.2020 (Annexure R/2-4) and the police

2 of 11

authorities again sent the adverse report. However, the above report due

to oversight was taken to be the clear report. Though, it was adverse,

the passport came to be issued on the basis of misreading of the adverse

report as clear report and in this backdrop, the petitioner has been asked

to surrender the passport vide letter dated 7.10.2020 (Annexure R-2/5).

It has further been stated in the reply that as per the provisions of the

Passport Act and the settled principles of law the passport of the

petitioner cannot be released till the above mentioned FIR against the

petitioner is not quashed or the clearance is given to the petitioner by the

concerned police authorities.

Counsel for the respondents has placed on record a

notification of the Ministry of External Affairs dated 21/08/2014,

wherein it has been stated that whenever any applicant against whom

proceedings before a criminal court are pending approaches any Passport

Issuing Authority for the passport services, a copy of Gazette

notification and proforma undertaking can be given to him/her with a

covering letter directing him/her to fulfill the requirements prescribed in

the Gazette notification. On submission of the same, his/her passport

application may be processed and passport may be issued as per the

provisions of the GSR 570 (E) and the contents of the court order.

Counsel for the petitioner has argued that passport of a

citizen can be seized only by a competent authority to put a temporary

ban on the travel. He has referred to a Coordinate Bench judgment of

this Court in the case of Hemant Goyal Versus State of Haryana, 2019

(1) Law Herald 33, to contend that merely because there is an FIR

registered, should not generally be a good ground to deny permission to

3 of 11

a person to go abroad.

Learned counsel for the respondent has argued that the

petitioner has applied for the re-issuance of the passport by suppressing

material information with regard to FIR No. 58 dated 26/07/2016

registered under Sections 22-61-85 of NDPS act at Police Station

Talwandi Chaudhrian against the petitioner. The stand of the respondent

is that the passport of the petitioner was held due to his own act and

conduct and also by the 'Adverse' police verification marked by the

police authorities (security agencies). The case of the petitioner attracts

the provisions of Section 10(3)(b) of the Passport Act, 1967. Section 10

(3) (b) of the Passport Act 1967 are extracted here under for the ready

reference of this Court:

"3. The passport authority may impound or cause to

be impounded or revoke a passport or travel document, -

(b) if the passport or travel document, was obtained by the

suppression of material information or on the basis of

wrong information provided by the holder of the passport

or travel document or any other person on his behalf.

Provided that if the holder of such passport obtains another

passport, the passport authority shall also impound or

cause to be impounded or revoke such other passport.

Provided that if the holder of such passport obtains another

passport, the passport authority shall also impound or

cause to be impounded or revoke such other passport"

4 of 11

Heard counsel for the parties. The short question which

arises for consideration in the present writ petition is whether the

petitioner could be denied the reissuance of his damaged passport only

because while making application for renewal, he did not disclose that

he was facing a criminal trial. The alleged recovery from the petitioner

was of hundred grams of Nitrazepam which is non-commercial in nature.

He was granted interim bail vide order dated 09/09/2016 (Annexure P-4)

which was made absolute vide order dated 20/02/2017 (Annexure P-5).

At this stage, reference can be made to a judgement of

Bombay High Court in the case of Deepak Dwarkasingh Chhabria

versus Union of India and another, 1997 AIR (Bombay) 181, wherein,

it was observed that pendency of criminal case is no bar to renewal of

passport if the applicant obtains permission from the concerned criminal

Court to travel out of India. Passport authority should inform the

applicant about his right to apply to the court for such permission and

supply the particulars about pending criminal case. In this case in

paragraphs 6 and 7, it was observed as under:

6. The short question which falls for my

consideration is whether the passport authority was

right in rejecting the petitioner's application for

renewal of the passport under Section 6(2)(f) of the

Act. The passport authority has produced a letter

dated 18th July, 1996 from the Additional Deputy

Commissioner of Police/Additional S.P., ACB, Pune,

enclosing a certificate issued by the Chief Judicial

Magistrate, Pune, confirming that Regular Criminal

5 of 11

Case No. 39 of 1995 is pending against the petitioner

under Sections 12B, 409, 420, 465, 471 and 109 of

the IPC and the case is fixed on 19th August, 1996.

The Additional Deputy Commissioner has opined that

issuance of passport of the petitioner was not

recommenced. It is the case of passport authority that

in view of the said letter, he had no option but to

reject the petitioner's application under Section

6(2)(f) of the Act. It will be useful to state briefly the

legislative background of the Act before considering

the relevant provisions of Section 6(2)(f). The

Act was enacted on 24th June, 1967 in view of the

decision of the Supreme Court in the case of Satwant

Singh Sawhney v. V. D. Ramarathnam. Assistant

Passport Officer, Government of India, New Delhi,

AIR 1967 SC 1836. Prior to coming into force of the

said Act, there was no law in India regulating the

issue of passport for leaving India and going abroad.

The issue of passport was entirely within the

discretion of the executive and this discretion was

unguided and unchallenged. In Satwant Singh

Sawhney's case (Supra) the Supreme Court by a

majority held that the expression 'personal liberty'

in Article 21 of the Constitution includes the right to

travel abroad and under Article 21 no person can be

deprived of his right to go abroad except according

to the procedure established by law, and since no law

had been made by the State regulating or prohibiting

6 of 11

the exercise of that right, the refusal to issue a

passport was in violation of Article 21 of the

Constitution. It was held by the Supreme Court that

the discretion with the execution in the matter of

refusing or issuing a passport being unchanneled and

arbitrary, it was plainly violative of Article 14 of the

Constitution and hence the order refusing passport to

the petitioner was also invalid under that Article.

This decision was accepted by the Parliament and the

infirmity pointed out by it was set right by enactment

of the Act. Section 6(2) of the said Act lays down 9

separate grounds on which the passport authority

can refuse to issue, inter alia, a passport. By virtue

of Section 8, the same grounds apply to a case for

renewal of passport. Therefore, by virtue of the

said Section 6(2) read with Section 8 of the said Act,

it is made obligatory for the passport authority to

refuse to renew the passport if one out of nine

grounds mentioned in Section 6(2) is present. The

relevant portion of Section 6(2) reads as follows :

"6(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 sub-section (2) of Section 5 on

any one or more of the following grounds, and on no

other grounds, namely :

(a) .....

7 of 11

(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).....

7. The Supreme Court considered the constitutional

validity of some of the provisions of the Act in the

land-mark case of Maneka Gandhi v. Union of

India,AIR 1978 SC 597. In that case the petitioner's

passport was impounded 'in public interest' by an

order dated 2nd July, 1977. The Government of India

declined 'in the interest of the general public' to

furnish the reasons for its decision. Thereupon, the

petitioner filed writ petition under Article 32 of the

Constitution before the Supreme Court. The

challenge was founded on various grounds. The

constitutional validity of Section 10(3)(c) was also

questioned. It is not necessary to deal with the

judgment in detail as far as challenge to Section

10(3)(c) is concerned. Suffice it to say that the

validity of Section 10(3)(c) was upheld by Supreme

Court. However, it is necessary to not the law laid

down by the majority in the context of Articles 14 of

the Constitution. It was held that the procedure

contemplated by Article 21 must answer the test of

reasonableness in order to be in conformity

with Article 14. Such procedure must be right and

just and fair and not arbitrary, fanciful or

oppressive; otherwise, it should be no procedure at 8 of 11

all and the requirement of article 21 would not be

satisfied. The decision of the Supreme Court in

Maneka Gandhi was delivered on 25th January,

1978.

At this stage, reference can also be given to a judgement of

a Co-ordinate Bench of this Court in the case of Sukhdev Singh and

others versus Union of India and others, 2001 (2) RCR (Civil) 274. In

this case, police recommended not to grant passport to the petitioner

because of his family's criminal background. Two FIRs were pointed out

to be registered against him. In one FIR, he was acquitted and other was

withdrawn by the state. He was also allowed to join government service.

There was no other material for showing that if the petitioner is

permitted to go abroad he would engage in activities prejudicial to the

sovereignty and integrity of India. It was held by this Court that the right

conferred under Article 21 of the Constitution of India cannot be taken

away on the grounds which cannot stand the judicial scrutiny.

At this stage reference can also be made to a Coordinate

bench judgement by Karnataka High Court in the case of Venkatesh

versus Paramesh and another 2018(2) AICLR 621, wherein it was held

that the court cannot restrict a person from exercising his statutory power

that he can have passport but that does not mean that he can travel

anywhere or everywhere and fly to foreign country without taking

permission of the court or getting the bail conditions imposed relaxed.

The petition was allowed with stringent conditions.

In another judgement by a Coordinate Bench of the

Allahabad High Court in the case of Ravindra Nath Bhargav vs. State

9 of 11

of U.P 2019 (3) AII, LJ 708, it was held that the passport or travel

document of a person who is facing trial can be refused by the authority

concerned during the pendency of his criminal case but there is no

statutory bar for giving no objection by the court concerned. No hard and

fast straightjacket formula can be done regarding issuance of permission

or giving no objection by the court concerned. It is always discretion of

the court concerned and depend upon the facts and circumstances of

each case, act and conduct of the accused as well as nature of alleged

offence committed by him and stage of trial etc. Sometime on account of

enmity or ill will one party enmesh the other party in a frivolous criminal

case to settle his personal score, therefore, in the interest of justice it is

necessary to consider all aspects of the matter and surrounding

circumstances while granting or refusing the no objection for renewal or

reissue of passport or travel documents by the court concerned. The

applicant was released on bail and keeping in view the nature of

allegations, the impugned order was set aside and the direction was

given to the authorities to issue passport with the undertaking that he

will not leave India during the pendency of the trial without permission

of the trial court, where trial is pending.

Object 1

In the present case, as far as the petitioner's involvement in

the criminal case is concerned he is on bail and his passport can be

renewed with the condition that if he has to travel outside India, he will

have to seek prior permission of the court if the trial is pending. In the

present case the passport of the petitioner has been impounded by the

respondents as per provisions of Section 10(3)(b) of the Passport Act,

1967. A perusal of the above said rule makes it clear that if a passport is 10 of 11

taken by the applicant by suppressing material information, it can be

impounded. However, there is no denying to the fact that when the

passport was issued to the petitioner, he was not facing any criminal trial

and thus he had not suppressed any material information. Provisions of

Section 10(3)(b) of the Passport Act, 1967 are not attracted to the present

case. It is not the case of the respondents that any other case is pending

against the petitioner. The recovery of the narcotics effected from the

petitioner was of non-commercial quantity.

In view of all that has been discussed above and in view of

the judgements referred to above, the present writ petition deserves to be

allowed as the petitioner is only seeking renewal of his passport.

However, in case the petitioner has to travel abroad, he will have to seek

necessary permission from the court, where the trial is pending.

12-02-2021                                       ( RITU BAHRI )
 ritu                                                JUDGE


      Whether speaking/reasoned                      Yes

      Whether reportable                             No




                                      11 of 11