Telangana High Court

Shaikh Mohammed Jakria Zakriah vs Union Of India on 13 March, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

          HON'BLE MRS JUSTICE SUREPALLI NANDA

                WRIT PETITION No.4247 OF 2024

ORDER:

Heard Mr. Pushpinder Kaur, learned counsel

appearing on behalf of the petitioner and K.Mani Deepika,

learned counsel appearing on behalf of the respondents.

2. The petitioner has approached the Court seeking the

following relief:

"to issue a Writ order or direction one in the nature of Writ of Mandamus declaring the letter dated 10/11/2023 vide proceedings HY2075917694323 sent by the 2nd respondent to the petitioner informing him of the refusal to reissue/renew passport applied for on the erroneous ground of application of Section 5(2)(c) of the Passports Act, 1967 R/W Section 6(2)(e) to the petitioners case as arbitrary, unreasonable, illegal and in violation of Principles of Natural Justice and in violation of the petitioner's Fundamental Rights under Articles 14 and 21 of the Constitution of India and to set aside the same and consequently direct the Respondents No.1 and 2 to renew the petitioner's passport bearing File No. HY2075917694323 dated 28/10/2023 forthwith, as per the decision of 5-Judge Bench of the Honorable Supreme Court of India in Satwant Singh Sawhney Vs. D.Ramarathnam, Asstt. Passport Officer (1967) 3 SCR 525 and pass such other order or orders as

this Hon'ble Court may deems fit just and proper in the circumstances of the case."

PERUSED THE RECORD.

3. The case of the petitioner in brief is that, the

petitioner herein had applied for renewal of passport

bearing File No. HY2075917694323 dated 28.10.2023 to

the 2nd respondent - Regional Passport Officer. The

Regional Passport Officer, Hyderabad issued a letter dated

10.11.2023 to the petitioner and the relevant portion of

the said letter is extracted hereinunder:

"Under the existing provisions and after careful examination of your case, it has been decided by the Competent Authority to refuse passport services to you under Section 5(2)(c) of the Passports Act, 1967, to be read with Section 6(2)(e), in view of your conviction by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years."

4. The Regional Passport Officer, Hyderabad issued notice

dated 30.12.2023 to the petitioner calling upon the petitioner to

furnish certain clarifications regarding issuance of passport

facilities to the petitioner pertaining to petitioner's application for

passport issuance vide File No. HY2075917694323 dated

28.10.2023. In response to the notice dated 30.12.2023 and the

letter dated 10.11.2023, petitioner submitted detailed

explanation and the clarification as sought for, however, without

considering the same, the impugned order dated 10.11.2023 has

been passed by the 2nd respondent rejecting the petitioner's

request for renewal of passport and to refuse passport services

to the petitioner under Section 5(2)(c) r/w 6(2)(e) of the

Passport Act, 1967 observing that in view of petitioner's

conviction by a Court in India for an offence involving moral

turpitude and sentenced in respect thereof to imprisonment for

not less than two years the competent authority refused

passport services to the petitioner.

5. A bare perusal of the record indicates that the petitioner

had been convicted on 24.01.2003 i.e., 20 years back and not

during the five years immediately preceding the date of

petitioner's application dated 28.10.2023 vide file

No.HY2075917694323 dated 28.10.2023 seeking issuance of

passport.

6. The petitioner submitted his explanation vide letter dated

23.01.2024 in response to the notice dated 30.12.2023 and also

the notice dated 10.11.2023 which is impugned in the present

writ petition, but however, the same had not been considered as

on date by the respondent. Aggrieved by the impugned letter

dated 10.11.2023 of the respondent No.2 refusing passport

services to the petitioner, the petitioner approached this Court

by filing the present Writ petition.

DISCUSSION AND CONCLUSION:

7. It is also relevant to note that the Respondents cannot

refuse the renewal of passport of the petitioners on the ground

that the petitioner was convicted RI for Life vide order dated

24.01.2003 in P.R.C.No.58 of 1996 on the file of the learned XXI

MM Court, Hyderabad and he was released prematurely under

the grant of Special Remission on 19.08.2023 vide Govt. GO

No.51 Home (Service V) and the said action of the respondents

is contrary to the procedure laid down under the Passports Act,

1967 and also the principle laid down by the Hon'ble Supreme

Court in Vangala Kasturi Rangacharyulu v. Central Bureau

of Investigation reported in 2020 Crl.L.J. (SC) 572.

8. It is also relevant to note that the Apex Court in

Vangala Kasturi Rangacharyulu (supra) had an occasion to

examine the provisions of the Passports Act, 1967,

pendency of criminal cases and held that refusal of a

passport can be only in case where an applicant is

convicted during the period of five (05) years immediately

preceding the date of application for an offence involving

moral turpitude and sentence for imprisonment for not

less than two years.

9. The Apex Court in Maneka Gandhi vs Union of India

reported in 1978 (1) SCC 248, held that no person can be

deprived of his right to go abroad unless there is a law

enabling the State to do so and such law contains fair,

reasonable and just procedure. Para 5 of the said

judgment is relevant and the same is extracted below:

"Thus, no person can be deprived of his right to, go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967 for regulating the right to go abroad. It is clear from the provisions of the Passports, Act, 1967 that is lays down the circumstances under which a passport may be issued or refused or cancelled or impounded and also prescribes a procedure for doing so, but the question is whether that is sufficient compliance with Article 21. Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements? Obviously, procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded by the learned Attorney General who with his usual candour frankly stated that it was not possible for him to contend that any procedure howsoever

arbitrary, oppressive or unjust may be prescribed by the law.

Therefore, such a right to travel abroad cannot be deprived except by just, fair and reasonable procedure.

10. The Division Bench of the Apex Court in its judgment

dated 09.04.2019 reported in 2019 SCC online SC 2048 in

Satish Chandra Verma v Union of India (UOI) and others it

is observed at para 5 as under:

"The right to travel abroad is an important basic human right for it nourishes independent and self-determining creative character of the individual, not only by extending his freedoms of action, but also by extending the scope of his experience. The right also extends to private life; marriage, family and friendship which are the basic humanities which can be affected through refusal of freedom to go abroad and this freedom is a genuine human right."

11. Referring to the said principle and also the principles

laid down by the Apex Court in several other judgments,

considering the guidelines issued by the Union of India

from time to time, the Division Bench of High Court of

Punjab and Haryana at Chandigarh in Noor Paul Vs. Union

of India reported in 2022 SCC online P & H 1176 held that

a right to travel abroad cannot be deprived except by just,

fair and reasonable procedure.

12. In the judgment dated 08.04.2022 of the Andhra

Pradesh High Court reported in 2023 (4) ALT 406 (AP) in

Ganni Bhaskara Rao Vs. Union of India and another at

paras 4, 5 and 6, observed as under:

"This Court after hearing both the learned counsel notices that Hon'ble Supreme Court of India, in Criminal Appeal No. 1342 of 2017, was dealing with a person, who was convicted by the Court and his appeal is pending for decision in the Supreme Court. The conviction I was however stayed. In those circumstances also it was held that the passport authority cannot refuse the "renewal" of the passport.

This Court also holds that merely because a person is an accused in a case it cannot be said that he cannot "hold" or possess a passport. As per our jurisprudence every person is presumed innocent unless he is proven guilty. Therefore, the mere fact that a criminal case is pending against the person is not a ground to conclude that he cannot possess or hold a passport. Even under Section 10 (d) of the Passports Act, the passport can be impounded only if the holder has been convicted of an offence involving "moral turpitude" to imprisonment of not less than two years. The use of the conjunction and makes it clear that both the ingredients must be present. Every conviction is not a ground to impound the passport. If this is the situation post- conviction, in the opinion of this Court, the pendency of a case/cases is not a ground to refuse, renewal or to demand the surrender of a passport.

The second issue here in this case is about the applicability of Section 6(2)(e) of the Passport Act. In the opinion of this Court that section applies to

issuance of a fresh passport and not for renewal of a passport. It is also clear from GSR 570(E) which is the Notification relied upon by the learned counsel for the respondents and is referred to in the counter affidavit. This Notification clarifies the procedure to be followed under Section 6 (2) of the Passport Act against a person whom the criminal cases are pending. This notification permits them to approach the Court and the Court can decide the period for which the passport is to be issued. This is clear from a reading of the Notification issued. Clause (a) (i) states if no period is prescribed by the Court the passport should be issued for one year. Clause (a)

(ii) states if the order of the Court gives permission to travel abroad for less than a year but has not prescribed the validity period of the passport, then the passport should be for one year. Lastly, Clause

(a) (iii) states if the order of the Court permits foreign travel for more than one year but does not specify the validity of the passport, the passport should be issued for the period of travel mentioned in the order. Such a passport can also be renewed on Court orders. Therefore, a reading of GSR 570(E) makes it very clear that to give exception or to exempt applicants from the rigour of Section 6 (2)(f) of the Act, GSR 570(E) has been brought into operation. The issuance of the passport and the period of its validity; the period of travel etc., are thus under the aegis of and control of the Court."

13. In view of the above, this Court opines that petitioner was

convicted for life imprisonment in the year 2003 and released

prematurely on 19.08.2023 and since petitioner had not been

convicted by a Court at any time during the period of five years

immediately preceding the date of petitioner's application i.e. on

28.10.2023, passport facilities cannot be declined to the

petitioner. The petitioner herein sought issuance of necessary

directions to respondents for consideration of the application of

the petitioner for issuance of passport facilities to the petitioner

and the same cannot be refused by the 2nd respondent citing

Section 5(2)(c) of the Passports Act, 1967 read with Section

6(2)(e) which has in fact no application to the facts of the