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2017 (2) TMI 710 - PUNJAB AND HARYANA HIGH COURT

2017 (2) TMI 710 - PUNJAB AND HARYANA HIGH COURT - TMI - Release of impounded passport - smuggling - export of sanders wood - whether the withholding of passport without the issuance of SCN as per sub-section 5 of Section 10 is valid? - Held that: - provisions of the Passport Act have not been complied with, decision of impounding the passport by relying upon the letters of the Customs Authorities is wholly misplaced. The zimni orders would reveal that even notice in the complaint had not been i .....

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The impugned action of the Passport Authority based upon information provided by the Customs Authority is wholly misplaced and untenable, much less, suffers from illegality and fallacy, hence set aside - The Passport Authority is directed is release/re-issue the passport No.H-7164937 - petition allowed - decided in favor of petitioner. - CWP No.9781 of 2016 (O&M) - Dated:- 6-2-2017 - MR. AMIT RAWAL, J. For The Petitioner : Mr. Ashish Aggarwal, Senior Advocate with Mr. Deepak Gupta, Advocate For .....

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elled couple of times to various countries including Dubai and Singapore. The petitioner is in the business of exporting rice to different countries and in this aspect of the matter, he has to travel abroad. However, in the year 2013, office of Commissioner of Customs (Anti Smuggling), Ludhiana, initiated an investigation alleging that he is involved in the export of sanders wood. Resultantly, he was arrested for alleged to have committed offence under Section 135 of the Customs Act, 1962 and in .....

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arding impounding of the same. The aforementioned order was on the basis of the notice/letter received by the Passport Authority from the office of Deputy Commissioner (Anti Smuggling Unit), Ludhiana. The petitioner stated to have responded the same vide reply dated 09.06.2014 by contesting the show cause but during the pendency of the show cause notice, it has been informed that the passport was impounded on 03.06.2014. The petitioner was constrained to file a writ petition bearing No.14785 of .....

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able, an appeal was filed before the Appellate Authority and the Appellate Authority vide order dated 11.08.2015 disposed of the appeal with the following directions:- 4. Having gone through all the records and in light of full facts and circumstances of the case, I decide as under:- i) Decision of the PO to impound the Appellant's passport was in order in view of the adverse report from the police authorities with clear recommendation for impounding of the passport. ii) As pleaded by the ap .....

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the respondent wrote to the Customs Department regarding release of the passport of the petitioner. The Customs Authorities in their report submitted that order has been passed and prosecution has been launched. The respondent showed both reports to the petitioner when the petitioner visited office of respondent. The verification conducted by the local police had recommended for release of the passport yet the respondent did not release the passport and the factum of averments in the correspondi .....

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ia, the security of India, friendly relations of India with any foreign country, or in the interests of general public. However, the annexures annexed with reply particularly Annexures R-2/1 and R-2/2 give different versions whereas as per Annexure R-2/1 dated 05.05.2014, the apprehension indicated by the Customs Authority to the Passport Authority was that there is every likelihood/apprehension of petitioner having indulged into the alleged smuggling of Red Sanders Wood. However, as per Annexur .....

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CJM, Ludhiana on 06.12.2014 (Complaint No.COMI/15194/2014). It has been informed by the Department Counsel vide letter dated 25.01.2016 that the case was fixed for hearing on 25.01.2016 but the accused did not appear. Summons/bailable warrants have been issued by the Hon'ble Court of CJM, Ludhiana. The case is adjourned for 06.06.2016. 4. In view of the above, appropriate action may be taken in the matter at your end. He has also drawn attention of the Court to the zimni orders dated 25.01. .....

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l under Section 129A of the Customs Act, 1962 has been availed and a sum of ₹ 16,11,000/- has been deposited whereas sum of ₹ 6,39,509/- has been appropriated by the Adjudicating Authority, in essence, more than ₹ 22 lacs have been deposited and the matter is subjudiced. If at all the Passport Authority is to withhold the passport, they could have issued the show cause notice as per sub-section 5 of Section 10 of the aforementioned Act. In support of aforementioned conditions, .....

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to the judgment rendered by Hon'ble Supreme Court in Suresh Nanda Vs. CBI 2008 (3) SCC 674 to contend that even the Court cannot impound the passport in exercise of power under Section 104 and 102 of the Criminal Procedure Code, being a general law, whereas the Passport Act is a special law, in essence, special law would prevail over the general law. If at all, the Customs Authorities had any grievance, they could always raise the objection as and when any application is moved seeking permi .....

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her submits that even the argument of the Passport Authority with regard to alleged suspicion and apprehension has been rejected by the Bombay High Court in Mirza Afzal Baig Vs. Regional Passport Officer, Thane 2005(1) Bom. C.R (Cri) 110 and in this regard, reference has been made to para 5 and 6 which reads as under:- 5. Perusal of the affidavits-in-reply filed by the respondents as well as upon hearing the learned Advocates, it is evident that apart from issuing the letter dated 19.9.2003 for .....

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he materials on record, we find no justification for withholding of the petitioner's passport at this stage. Needless to say that in case the authorities have any justification to take appropriate action under the provisions of law in relation to the passport issued to the petitioner, certainly they would be entitled to do so by following the procedure known to law. However, as the matter stands today, they respondents have not been able to make out any case for withholding the passport of t .....

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nnexures R-2/1 and R-2/2. As per the information provided by the Customs Authorities, the petitioner is stated to have indulged into smuggling activities and his passport has been impounded only on the basis of apprehension regarding the sovereignty and integrity of India, in view of the provisions of the Passport Act referred to above. He does not deny the factum of having not complied with the order of the Appellate Authority, in essence, the police had conducted verification and submitted rep .....

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the finding extracted above by the Hon'ble Supreme Court in Satwant Singh Sawhney's case and Suresh Nanda's case (supra), this Court is made to believe that withholding of the passport has been held to be a violation of Article 21 of the Constitution. Being a special law, it is only in the domain of the Passport Authority to impound the passport but there has to be basis and reasons. Mr. Aggarwal during the course of arguments also drawn attention of the Court to paragraph 18 of the .....

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014 found two customs officials guilty. It is the aforementioned mens rea and disgruntlement/prejudice which is the fall out of incorrect information being passed on to the Passport Authority. In fact, the information obtained under RTI does not even reveal that any passport has been impounded for the alleged commission of offence on the recommendation of the Customs Authority by the Passport Authority. Be that as it may be, I do not intend to comment upon the conduct of the officials of the Cus .....

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