TMI Blog2017 (1) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Nanda vs. CBI mentioned [2008 (1) TMI 876 - SUPREME COURT], has held that the police may not have power under Section 102 (1) of Code of Civil Procedure to seize a passport or to impound the same. It was further held that impounding of a passport can only be done by the Passport Authority under Section 10 (3) of the Passports Act, 1967.as per Section 104 of Cr.P.C., a 'document' does not include a passport. In the present case, it is not the case of the respondents that they have taken necessary steps under Section 10 of the Passports Act to impound the passport Act and therefore, the mere detention of the passport of the petitioner at the airpott without following the provisions contained under Section 10 of the Passport Act and issuing the look out circular without issuing prior notice are not legally sustainable. It is brought to the notice of this Court that after dismissal of writ petitions filed by petitioner before the Kerala High Court, the respondents themselves wanted the petitioner to appear for inquiry only at Delhi on the ground that cumulatively, investigation can be done in Delhi. At any rate, it is contended that the petitioner is cooperating with the enquiry. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner praying to issue a Writ of Certiorarified Mandamus to call for the records of the second respondent in the impugned order bearing Ref.F.No.T-3/219/HQ/2015 dated 23.12.2016 and the Corrigendum in Ref.F.No.T-3/219/HQ/2015 dated 30.12.2016 and set aside the same as being arbitrary and illegal, and consequently directing the second respondent to forthwith release the petitioner's passport bearing No.Z3313067. 2. The petitioner is a Non Resident Indian [NRI]. He is a promoter of various businesses in United Arab Emirates. He has been investing money in India by purchasing agricultural lands. While so, the respondents have initiated investigation against him for having purchased agricultural lands in India in violation of Foreign Exchange Management Act (in short) FEMA). In this context, a summon dated 06.11.2012 was issued to the petitioner requiring him to appear for an enquiry on 16.11.2012 at Cochin and the petitioner also appeared for such enquiry on 26.11.2012 and produced the documents required. The petitioner also received series of such summons from the respondents for his appearance in connection with the investigation both at Cochin and Delhi. Challenging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther submits that the petitioner never violated any of the provisions of the Law. The petitioner cannot be branded like a terrorist when he is willing to cooperate with the enquiry. In this context, the learned Senior counsel submitted that in similar circumstances, this Court in Crl.O.P.No.27741 of 2013 dated 31.10.2013 [E.V.PERUMAL SAMY REDDY vs. STATE REPRESENTED BY the DEPUTY COMMISSIONER OF POLICE AND STATE REPRESENTED BY THE INSPECTOR OF POLICE] has set aside an identical LOC holding that there is no allegation to the effect that the petitioner therein has absconded. This Court also categorised the persons against whom such look out circular has to be issued in Paragraphs 9, 13 and 14. Useful reference can be made to the order passed by this Court which reads as follows:- 9. It is basic that merely because a person is involved in a criminal case, he is not denude of his Fundamental Rights. It is the fundamental of a person to move anywhere he likes including foreign countries. One's such personal freedom and liberty cannot be abridged. In the celebrated in MENAKA GANDHI Vs. UNION OF INDIA[AIR 1978 SC 597], the Hon'ble Supreme Court upheld the constitutional right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents are to be watched and reported. 17Q: What are the parameters to be included in LOC. Ans: i)Name in full and alias if any. ii)Passport Number issuing office iii)Nationality iv)Date of birth v)Place of Birth vi)Parentage vii)Address with photograph 18Q.What are the various types of persons who can be included in the LOC? Ans: i) Persons with Terrorist or Militant Links, ii) Belligerent Foreigners. Iii) Foreigners previously noticed for violations of visa conditions. iv) Persons required by courts in criminal / civil cases who are absconding. v) Absconding Offenders wanted by Police / CBI / Customs / Central excise / Directorate of Rev. Intelligence / other agencies. 19Q: What is the upper limit for maintaining a wanted persons name in LOC? Ans: (i) Visadex cards after expiry of one year will be weeded out unless and otherwise the originator asks for continuance. (ii)MHA warning circulates/look out instructions will be retained permanently until specific instructions are given for deletion. 12. L.O.C. containing full particulars of the person is being sent throughout the world. Even to Int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enquiry and he will not abscond. 6. On the contrary, the learned counsel for the respondents 2 to 4, based on the counter affidavit, would contend that the investigation is in a crucial stage. The petitioner, after the dismissal of the writ petition filed before the Kerala High Court, did not cooperate and did not appear before the respondents for inquiry. Therefore, the respondents have issued the Look Out Circular. As he is resident of Dubai, to record his statement he was detained at Chennai Airport on 22.12.2016. In this context, the learned counsel for the respondents 2 to 4 relied on the judgment of the Delhi High Court in SUMAN SEHGAL vs. UNION OF INDIA [AIR 2006 DELHI 216] wherein it was held that passport can be impounded even by invoking the provisions of the FEMA Act. Further, the passport of the petitioner is impounded for a limited period of 90 days in order to ensure his availability in the office of the second respondent for the purpose of investigation. Therefore, the learned counsel for the respondents prayed for dismissal of the writ petitions. 7. Heard the learned senior counsel for the petitioner, learned counsel for the first respondent as well as the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the passport could be made by having recourse to general provision under the Income Tax Act, regulating the seizure of documents. The writ petition, therefore, must succeed. In view of the clear pronouncement by the Supreme Court in case of Suresh Nanda, we do not propose to deal with the High Court judgments, relied upon by the learned Solicitor General. 13. Certainly the law is tilted in favour of the Petitioner but the Court cannot overlook that the Petitioner has approached this Court under Article 226 of the Constitution of India, an equitable jurisdiction. During the course of arguments, it was argued with some emphasis that there are number of accounts and some of them contain transactions of very highest magnitude which were not declared by the Petitioner despite specific directions of the Court. The only explanation that has been putforth on behalf of the Petitioner in that behalf is that he forgot to give complete statements and some of the accounts were dormant. It was stated and even mentioned in one of the affidavits filed on behalf of the Union of India that some transactions even exceeded the amount of US$ 85,000. We are unable to accept in entirety the exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act to impound a passport. The relevant portion is extracted hereunder: 11. The Act being a specific Act whereas Section 104 of Cr.P.C. is a general provision for impounding any document or thing, it shall prevail over that Section in the Cr.P.C. as regards the passport. Thus, by necessary implication, the power of Court to impound any document or thing produced before it would exclude passport. 12. In the present case, no steps have been taken under Section 10 of the Act which provides for variation, impounding and revocation of the passports and travel documents. Section 10A of the Act which provides for an order to suspend with immediate effect any passport or travel document; such other appropriate order which may have the effect of rendering any passport or travel document invalid, for a period not exceeding four weeks, if the Central Government or any designated officer on its satisfaction holds that it is necessary in public interest to do without prejudice to the generality of the provisions contained in Section 10 by approaching the Central Government or any designated officer. Therefore, it appears that the passport of the appellant cannot be impounded except by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that the seized passport deserves to be impounded for one of the reasons mentioned in Section 10(3) of the Act. It is thereafter the passport authority to decide whether to impound the passport or not. Since impounding of a passport has civil consequences, the passport authority must give an opportunity of hearing to the person concerned before impounding his passport. It is well settled that any order which has civil consequences must be passed after giving opportunity of hearing to a party vide State of Orissa Vs. Binapani Dei [Air 1967 SC 1269]. 14. In the present case, neither the passport authority passed any order of impounding nor was any opportunity of hearing given to the appellant by the passport authority for impounding the document. It was only the CBI authority which has retained possession of the passport (which in substance amounts to impounding it) from October, 2006. In our opinion, this was clearly illegal. Under Section 10A of the Act retention by the Central Government can only be for four weeks. Thereafter it can only be retained by an order of the Passport authority under Section 10(3). 15. In our opinion, even the Court cannot impound a passport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t circular can be issued. As per the instructions issued by the respondents/ department, look out circular can be issued against (i) persons with terrorist or militant links (ii) beligerent foreigners (iii) foreigners previously noticed for violations of visa conditions (iv) persons required by court in criminal/civil cases who are absconding and (v) absconding offenders wanted by Police/CBI/Customs/Central Excise/Directorate of Revenue Intelligence and other competent investigation agencies. In the present cdase, no where it was mentioned in the impugned circular that the petitioner comes under any of the categories mentioned in the instructions given by the respondents themselves. 12. In so far as impounding of passport is concerned, the Honourable Supreme Court in the case of Suresh Nanda vs. CBI mentioned supra, has held that the police may not have power under Section 102 (1) of Code of Civil Procedure to seize a passport or to impound the same. It was further held that impounding of a passport can only be done by the Passport Authority under Section 10 (3) of the Passports Act, 1967. The Honourable Supreme Court has also laid down a distinction and difference between seizi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve taken necessary action as contemplated under Section 10 of the Passport Act, without doing so, the impugned orders are legally not sustainable. 15. In the light of the above and as per the judgment of the Hon'ble Supreme Court, this Court direct the respondents to return the passport to the petitioner forthwith after cancelling the Look Out Circular with stringent conditions: [i] the petitioner will appear before the authority concerned for the enquiry as and when he has been summoned when a notice is given to a reasonable time for his appearance; [ii] the petitioner will undertake before this Court that he will specifically cooperate with the inquiry and will not abscond from the proceedings; [iii] he will abide any other reasonable conditions which may be imposed by the authority concerned; and [iv] he may be entitled for the assistance of a lawyer but the lawyer will be only present in the office of the respondent at the time of enquiry. 16. It is made clear that since the next inquiry is on 03.02.2017 the petitioner has to necessarily appear before the respondents without fail. 16. In the result, the writ petitions are allowed and the orders, impound ..... X X X X Extracts X X X X X X X X Extracts X X X X
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