Mohammed Rahmatullah vs Union Of India,
2023 Latest Caselaw 1344 Tel

             HON'BLE SRI JUSTICE K. LAKSHMAN

   WRIT PETITION Nos.31947 OF 2015 AND 10582 OF 2018

COMMON ORDER:

        Heard Mr. N. Naveen Kumar, learned counsel for the

petitioners in both the writ petitions; Mrs. Anjali Agarwal, learned

Standing Counsel for respondent Nos.1 to 3 in W.P. No.10582 of

2018, while Mr.Pulimamidi Shashidhar Reddy, learned Standing

Counsel for respondent in W.P. No.31947 of 2015 and Mr. S. Rama

Mohana Rao, learned Assistant Government Pleader for Home

appearing on behalf of respondent Nos.4 and 5 in W.P. No.10582 of

2018.

2. W.P. No.31947 of 2015 is filed to declare that the petitioner

has got a fundamental right to travel abroad as guaranteed under the

Constitution of India, and for a consequential direction to the

respondents to renew his old passport bearing No.L 275224, dated

29.04.1992. Whereas, W.P. No.10582 of 2018 is filed to declare the

action of respondent No.2 in dismissing the appeal of the petitioner

under Section - 11 of the Passports Act, 1967 vide order dated

21.11.2017, as illegal and for a consequential direction to the

KL,J W.P.Nos.31947 of 2015 & 10582 of 2018

respondents to allow the application No.HY3070244683517 dated

15.05.2017 and renew/issue passport to the petitioner.

3. In both the writ petitions, the petitioner and the respondents

are common and lis involved is also common. Therefore, both the

writ petitions were heard together and are disposed of by way of

common order.

4. For the sake of convenience, the parties hereinafter will be

referred to as arrayed in W.P. No.10582 of 2018.

5. The petitioner herein is a Holder of Passport bearing No.L

275224 issued on 29.04.1992. It was valid up to the year 2002. After

expiry of the said passport, he had submitted an application with the

Regional Passport Officer - respondent No.3 on 17.07.2014 seeking

renewal of the passport. The same was not considered on the ground

that the petitioner herein is one of the accused in S.C. No.393 of 2000

on the file of learned Additional Metropolitan Sessions Judge for trial

of Communal Offence Cases - cum - VII Additional Metropolitan

Sessions Judge, Nampally, Hyderabad, and adverse report dated

05.02.2015 was received against him. He was also accused in Crime

KL,J W.P.Nos.31947 of 2015 & 10582 of 2018

No.186 of 2015 for the offences under Sections - 448 and 506 of IPC

pending on the file of Chaderghat Police Station, Hyderabad.

6. As per the report of the Intelligence Department of State, the

petitioner is an active sympathizer of Darssgah Jihad - o - Shahadat

(DJS) and participating in all activities organized by the said society.

A suspect sheet is maintained in Saifabad Police Station and personal

file was opened by the Counter Intelligence Cell, Intelligence

Department vide S.No.528/A and his movements are closely watched

by the Special Task Force. Therefore, he has filed the aforesaid W.P.

No.31947 of 2015. The said application of the petitioner was closed.

Then, the petitioner had submitted fresh application vide file

No.HY30702446835 17, dated 15.05.2017 for re-issuance of the said

passport. A show-cause notice dated 16.06.2017 was issued to the

petitioner and the petitioner had submitted reply dated 21.07.2017.

Without considering the said reply, respondent No.3 had passed order

dated 16.08.2017 rejecting the passport application of the petitioner.

Feeling aggrieved by the said order, dated 16.08.2017, the petitioner

preferred an appeal before respondent No.2, who in turn vide order

dated 21.11.2017, dismissed the said appeal. Challenging the said

KL,J W.P.Nos.31947 of 2015 & 10582 of 2018

order, the petitioner filed a writ petition vide W.P. No.10582 of 2018.

The petitioner herein had filed I.A. No.1 of 2019 seeking to take

affidavit along with the letter dated 11.01.2019 issued by the Regional

Passport Office, Hyderabad, on record.

7. Perusal of the said letter dated 11.01.2019 would reveal that

the application submitted by the petitioner was closed. In view of the

aforesaid facts, according to this Court, nothing remains to adjudicate

in W.P.No.31947 of 2015 and it has become infructuous and,

therefore, the same is dismissed as infructuous.

8. As discussed above, the petitioner herein had filed W.P.

No.10582 of 2018 challenging the order dated 21.11.2017 of

respondent No.2. The petitioner herein had submitted another

application dated 15.05.2017 with respondent No.3 - Regional

Passport Officer, Hyderabad for re-issuance of passport. On receipt of

the said application, respondent No.3 had issued a show-cause notice

dated 16.06.2017 stating that it has received adverse police

verification report. The petitioner herein had submitted his

explanation dated 21.07.2017 stating that the police might have

submitted false verification report against him and he owes allegiance

KL,J W.P.Nos.31947 of 2015 & 10582 of 2018

to the sovereignty, unity and integrity of India. Vide order dated

16.08.2017, respondent No.3 refused to issue passport to the petitioner

in terms of Sections - 6 (2)b and 6 (2) c of the Passports Act, 1967.

9. Feeling aggrieved by the said order, the petitioner herein had

preferred an appeal under Section - 11 of the Passports Act, 1967 with

respondent No.2 and the same was dismissed by respondent No.2 vide

order dated 21.11.2017 on the ground that the Passport Officer has

received adverse police verification report dated 14.06.2017 from the

concerned police authority mentioning that the petitioner herein is the

associate of Moulana Naseeruddin (President - Wahedath-e-Islam-e-

Hind). He is an accused in Crime No.6 of 2003 of DCB Ahmedabad,

Gujarat State. If passport is issued, the petitioner may indulge in anti-

national activities overseas prejudicial to the sovereignty, security and

integrity of India. Challenging the said order, the present writ

petition is filed.

10. As stated above, in the show-cause notice dated 16.06.2017

issued by respondent No.2, except mentioning the receipt of adverse

police verification report, he has not mentioned the involvement of the

petitioner in any crime or criminal case. However, the petitioner had

KL,J W.P.Nos.31947 of 2015 & 10582 of 2018

submitted his explanation dated 21.07.2017 stating that he owes

allegiance to the sovereignty, unity and integrity of India. Even in the

refusal order dated 16.08.2017 of respondent No.3, there is no

mention about the involvement of the petitioner in any criminal case

except stating that they have received police adverse verification

report from the police department. In the order dated 21.11.2017

passed by respondent No.2, there is also mention about the

involvement of the petitioner in Crime No.6 of 2003 and that the

petitioner is also close associate of DJS. In the counter filed by the

respondents and also written instructions/additional written

instructions of respondent No.5 it is mentioned that the petitioner

herein is an accused in Crime No.207 of 1996. On completion of the

investigation in the said crime, the Investigating Officer has laid the

charge sheet and the same was taken on file vide S.C. No.393 of 2000.

After conducting trial, the petitioner was acquitted in the said case.

The petitioner herein has also submitted copy of the said judgment in

the said S.C. No.393 of 2000. Even as per respondent No.5 and also

as per the police verification report received by respondent No.4, the

petitioner herein is also an accused in Crime No.186 of 2015 pending

KL,J W.P.Nos.31947 of 2015 & 10582 of 2018

on the file of Chaderghat Police Station, Hyderabad for the offences

punishable under Sections - 448 and 506 of IPC. Even in the written

instructions itself, respondent No.5 has stated that on completion of

investigation, the said crime was referred as 'civil in nature' on

20.02.2016 itself. It was also stated by respondent No.5 that there are

no criminal cases pending against the petitioner herein.

11. However, both respondent Nos.4 and 5 have contended that

as per the police verification report, the petitioner is a close associate

of one Moulana Naseeruddin (President - Wahedath-e-Islam-e-Hind),

who is an accused in Crime No.6 of 2003 of DCB Ahmedabad,

Gujarat State. The said Moulana Naseeruddin was involved in Haren

Pandya (Ex-Home Minister, Gujarat State) murder case and also

involved in the conspiracy to blast Ganesh Temple, Secunderabad, in

2003. The petitioner is also associated of Asghar Ali, Abdul Bari,

M.A. Rawoof (Anti National Activists). A close surveillance is being

maintained against the petitioner by the Counter Intelligence

Department and Special Task Force of Special Branch, Hyderabad,

vide personal file No.528/A. However, they have also sent a report

stating that the petitioner is an active sympathizer of Darssgah Jihad -

KL,J W.P.Nos.31947 of 2015 & 10582 of 2018

o - Shahadat (DJS) and participating in all activities organized by the

said society. A suspect sheet is maintained in Saifabad Police Station

and personal file was opened by the Counter Intelligence Cell,

Intelligence Department vide S.No.528/A and his movements are

closely watched by the Special Task Force. But, however, they have

not mentioned about the said facts in the aforesaid show-cause notice

issued against the petitioner and also the rejection order passed by

respondent No.3 and in the appeal order passed by respondent No.2.

Thus, the aforesaid facts would reveal that there are no pending

criminal cases against the petitioner.

12. It is relevant to note that initially respondent No.5 - Station

House Officer, SIV, Hyderabad, was not party to the present writ

petition. He was impleaded thereafter. He has submitted the

aforesaid written instructions. In the said written instructions, it is

also mentioned about the involvement of the petitioner in Crime

No.454 of 2021 pending on the file of Chaderghat Police Station for

the offences punishable under Sections - 420, 463, 464, 468, 471 and

120B of IPC. After completion of investigation, the Investigating

Officer has filed report treating the same as 'lack of evidence' on

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08.03.2022 itself. Therefore, even according to him, there is no crime

pending against the petitioner. However, according to him, the

petitioner is involved in the aforesaid illegal activities. Therefore,

they have opened personal file and monitoring close watch against the

petitioner. Even though there is mention about issuance of suspect

sheet against the petitioner and opening of the aforesaid personal File

No.528/A, they have not mentioned the said facts in the show-cause

notice, rejection order and appeal order of respondent Nos.2 and 3.

Thus, the said aspects were not considered by respondent Nos.2 and 3.

13. It is relevant to note that Section - 6 of the Passports Act,

1967 deals with refusal of passports, travel documents. etc. To decide

the lis involved in the present writ petition, Sections - 6 (2) b and 6 (2)

c of the Passports At, 1967 are relevant and the same are extracted

hereunder:

"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 country under clause (b) or clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely:--

KL,J W.P.Nos.31947 of 2015 & 10582 of 2018

(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 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;

KL,J W.P.Nos.31947 of 2015 & 10582 of 2018

(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;

(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."

14. The aforesaid aspects were not considered by respondent

No.3 in the show-cause notice and the rejection order passed by

respondent No.2 and in the appeal order by respondent No.3. Thus,

the rejection order dated 16.08.2017 of respondent No.3 confirmed by

KL,J W.P.Nos.31947 of 2015 & 10582 of 2018

respondent No.2 vide order dated 21.11.2017 are not on consideration

of entire evidence on record. There is no clarity with regard to the

suspect sheet issued and maintained against the petitioner by Police of

Saifabad. However, they have made serious allegations against the

petitioner with regard to maintenance of relations with the aforesaid

DJS and the aforesaid individuals.

15. In view of the aforesaid discussion, both the orders dated

16.08.2017 and 21.11.2017 passed by respondent Nos.3 and 2

respectively are liable to be set aside since they are not on

consideration of the aforesaid factual aspects and report of respondent

No.4 Inspector of Police, Special Branch, East Zone, Hyderabad and

accordingly they are set aside. The matter is remanded back to

respondent No.3 i.e., the Regional Passport Officer, Secunderabad,

with a direction to consider the aforesaid application No.HY3070244

683517, dated 15.05.2017 submitted by the petitioner for re-issuance

of passport and pass appropriate orders in accordance with law.

Respondent No.3 is also at liberty to obtain fresh police verification

report from the concerned authorities including Inspector of Police,

Special Branch, East Zone, Hyderabad or any authority with regard to

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antecedents of the petitioner. Respondent No.3 shall also consider the

provisions of Sections - 6 (2) b and 6 (2) c of the Passports Act, 1967.

Liberty is also granted to respondent No.3 to call for any information

by considering the aforesaid application submitted by the petitioner.

However, respondent No.3 shall complete the entire exercise as

expeditiously as possible, preferably within a period of four (04)

weeks from the date of receipt of copy of this order.

16. With the aforesaid directions, W.P. No.10582 of 2018 is

disposed of, while W.P. No.31947 of 2015 is dismissed as

infructuous. However, there shall be no order as to costs.

As a sequel thereto, miscellaneous petitions, if any, pending in

both the writ petitions shall stand closed.

_________________ K. LAKSHMAN, J 21st March, 2023 Mgr