Telangana High Court

Mohammed Liaqat Ali vs Union Of India, on 19 March, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

        HON'BLE MRS JUSTICE SUREPALLI NANDA


             WRIT PETITION No.7192 of 2024

ORDER:

Heard learned counsel appearing on behalf of the

petitioner and also heard learned Counsel representing

Mr.Gadi Praveen Kumar, Dy. Solicitor General of India,

appearing on behalf of respondent Nos.1 and 2.

PERUSED THE RECORD.

2. The petitioner approached the Court seeking the

prayer as follows:

"to issue a writ or order more particularly one in the nature of WRIT OF MANDAMUS declaring the action of the Respondent No.2 issuing Notice in form of Order vide No.HYD/30/POL/PIC/977/2023 dated 04.03.2024 against the Petitioner without considering the reply dated 23-11-2023 issued by the Petitioner is illegal, arbitrary, unjust, unconstitutional and in violation of principles of natural justice and consequently set aside the Notice vide No.HYD/3O/P OL/PIC/977/2023 dated 04.03.2024 issued by the Respondent No.2 and to pass such other and pass such other order or orders may deem fit and proper in the circumstances of the case."

3. It is the specific case of the petitioner that, petitioner

obtained passport bearing No.Z2846948 from the respondent

authorities, and the petitioner had applied for renewal of the

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said passport and the respondents had renewed the

petitioner's passport bearing No.B6322572, dated

07.10.2023.

The specific grievance of the petitioner is that, 2nd

respondent/Regional Passport Office had issued show cause

notice vide letter Ref. No.SCN/316132991/23, dated

04.11.2023 to the petitioner calling upon the petitioner to

furnish certain clarifications regarding issuance of passport

facilities to petitioner. The petitioner further contends that, in

response to the said show cause notice dated 04.11.2023

issued by the 2nd respondent/Regional Passport Office, the

petitioner furnished clarifications vide his detailed

representation, dated 23.11.2023 to the 2nd respondent

herein. But however, without considering the said explanation

submitted by the petitioner dated 23.11.2023, the 2nd

respondent has issued another Notice dated 19.12.2023 vide

letter Ref.No.SCN/316543603/23 informing the petitioner

that Sec. 10(3)(b)&(e) of the Passports Act 1967 is attracted

against the petitioner, and called upon the petitioner to

furnish proper explanation within fifteen days. Thereafter,

the respondents have issued another Notice vide

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No.HYD/30/POL/PIC/977/2023, dated 04.03.2024 directing

the petitioner to surrender the passport bearing No.B-

6322572, dated 07.10.2023 within 15 days to the Regional

Passport Officer. The petitioner aggrieved by the action of

the 2nd respondent seeking to surrender the petitioner's

passport dated 07.10.2023, filed the present writ petition.

Hence, the petition.

4. It is contended by the learned counsel appearing on

behalf of the petitioner that, petitioner herein is an accused in

C.C.Nos.2505 of 2021, 4303 of 2019 and 22161 of 2019

pending on the file of III Additional Chief Metropolitan

Magistrate, Nampally, Hyderabad and the petitioner was

falsely implicated in the said cases which are pending on the

file of III Additional Chief Metropolitan Magistrate, Nampally,

Hyderabad.

5. The learned counsel for the petitioner further contends

that, respondents cannot seek surrender of passport facilities

to the petitioner on the ground of the pendency of the

aforesaid criminal cases against the petitioner and the said

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action of the respondents is contrary to the procedure laid

down under the Passports Act, 1967.

6. The learned Counsel representing Dy. Solicitor

General of India, appearing on behalf of respondent

Nos. 1 and 2 submits that the petitioner's passport is

valid upto 24.06.2024 and further the petitioner in

petitioner's explanation dated 29.01.2024 submitted in

response to the show cause notice dated 19.12.2023

informed the 2nd respondent that the petitioner would

furnish the Court order regarding disposal of the cases

pending against the petitioner or in the alternative

surrender petitioner's passport to the 2nd respondent.

But however, the petitioner failed to submit the Court

orders and therefore, the impugned Notice dated

04.03.2024 had been issued calling upon the petitioner

to surrender the petitioner's passport within a period

of 15 days; failing which action would be initiated

against the petitioner under Section 10(3)(b)&(e) of

the Passports Act 1967.

PERUSED THE RECORD.

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7. This court opines that, pendency of criminal cases

against the petitioner cannot be a ground to deny

issuance of a passport or deny renewal of passport or

impound or detain a passport since the right to

personal liberty of an individual would include not only

the right to travel abroad but also the right to possess a

Passport.

8. Further this Court opines that the Respondent cannot

seek surrender of passport of the petitioner on the ground of

the pendency of the aforesaid criminal cases against the

petitioner and the said action of the respondent 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.

9. 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,

and pendency of criminal cases and held that refusal of

a passport can be only in case where an applicant is

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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. Section

6(2)(f) relates to a situation where the applicant is

facing trial in a criminal Court. The petitioner therein was

convicted in a case for the offences under Sections 420 IPC

and also Section 13(2) read with Section 13(1) of the

Prevention of Corruption Act, 1988, against which, an appeal

was filed and the same was dismissed. The sentence was

reduced to a period of one (01) year. The petitioner therein

had approached the Apex Court by way of filing an appeal and

the same is pending. Therefore, considering the said facts,

the Apex Court held that Passport Authority cannot refuse

renewal of the passport on the ground of pendency of the

criminal appeal. Thus, the Apex Court directed the Passport

Authority to renew the passport of the applicant without

raising the objection relating to the pendency of the aforesaid

criminal appeal in S.C.

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10. The Apex Court in another judgment reported in

2013 (15) SCC page 570 in Sumit Mehta v State of NCT

of Delhi at para 13 observed as under:

"The law presumes an accused to be innocent till his guilt is proved. As a presumable innocent person, he is entitled to all the fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution of India."

11. 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

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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.

12. 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."

13. 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

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cannot be deprived except by just, fair and reasonable

procedure.

14. 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, it is 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 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

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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."

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15. In view of the above, this Court opines that mere

pendency of criminal cases is not a ground to

detain/surrender the passport which was issued to the

petitioner on 07.10.2023 and is valid upto 24.06.2024.

Further, the petitioner is ready and willing to co-operate with

the trial Court in concluding the trial.

16. A bare perusal of the order impugned dated

04.03.2024 of the 2nd respondent indicates that there is

no discussion of the explanation dated 29.01.2024,

furnished by the petitioner in response to the notice

dated 19.12.2023 issued by the 2nd respondent to the