TMI Blog2018 (11) TMI 1233X X X X Extracts X X X X X X X X Extracts X X X X ..... n (2) of Section 5. On the other hand, sub-section (2) deals with the authority s refusal to issue the passport or travel document for visiting any foreign country under clause (c) of subsection (2) of Section 5. That is, sub-section (2) concerns issuing the passport, rather than endorsing on the passport. It contains more grounds of refusal than sub-section (1). Yet clause (b) in subsection (1) and clause (c) in subsection (2) are common: that the presence of the applicant in such country may, or is likely to, be detrimental to the security of India. A person suffers a disqualification to get the permission to travel if his or her presence in another country, as mandated under Section 6 (1) (b) of the Passport Act, to be detrimental to the security of India . A person gets no passport or travel document if, as Section 6 (2) (c) holds, his departure from India proves detrimental to the security of India . And under Section 10 (3) (c), a passport is subjected to variation, impounding, or revocation in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the public. Can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - - - Dated:- 21-11-2018 - MR DAMA SESHADRI NAIDU, J. For The Petitioner : ADV. SRI. P. A. AUGUSTIAN For The Respondent : ADVS. SRI. JAISHANKAR V. NAIR, CGC SRI. SREELAL N. WARRIER SMT. C. G. PREETHA, CGC JUDGMENT Introduction: Three persons hold valid passports, but they also face allegations of violating the Customs Act. They carry an epithet: smugglers. Under the Customs Act, they have answered the allegations and those proceedings, here, do not concern us, though. They were asked to surrender their passports; rather, the passports were impounded. The Regional Passport Officer acted on the Customs Department s communication: their holding the passport would harm the economic security of the nation. Granted, the Passport Act denies passports to the persons posing danger to the security of the nation, does that security include the economic security ? We will see. Facts: 2. Three persons have filed these three writ petitions; they have a common grievance, though. All the three owned valid passports. Faced with a direction from the Regional Passport Authority to surrender their passports, they have come to the Court. 3. Faisa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RPO and the counter affidavit by the Customs Department, Sri Augustian contends that the RPO cannot act on the Customs Department s dictates. His order to impound the passports suffers from the vice of abdication. To elaborate, Sri Augustian contends that the course the RPO adopted on the Customs Authorities communication reflects his abdicating the discretion the Passport Act conferred on him. To support his contentions, Sri Augustian has relied on Sinder Pal v. Union of India [2017 (357) E.L.T.110]. Respondents : Passport Authority s: 9. On the other hand, Sri Jaishankar V. Nair, the learned Central Government Counsel, has submitted that the RPO has acted only on the Customs Department s Ext.R1(a) communication. According to him, Section 10 of the Passport Act empowers the RPO to impound or cancel any passport if the passport holder indulges in the activities that imperil the nation s economic security . So he contends that the RPO s action is bona fide and well-within his statutory powers. Customs Department s: 10. Sri Sreelal Warrier, the learned Senior Standing Counsel for the Customs Department, has submitted that the Department is duty bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me: he has applied for the reissue of his passport, but the Customs Department s letter casts a cloud on his character. 16. In the letter, dt.25.07.2018, the Customs Department incorporated a list of persons. It points out that all the persons in the list are likely to engage outside India in activities prejudicial and detrimental to the economic security of India and their continued presence in foreign countries would not be in public interest. Faisal and Shinoy were found mentioned in the list. The Ministry of External Affairs, too, required the RPO, through its communication, dt. 01.08.2018, to take appropriate action. ( b) The Statutory Scheme: 17. Now, we will examine the statutory provisions of the Passport Act, including Sections 6 and 10, the pivotal ones. A person desirous of visiting a foreign country or countries must apply under Section 5 of the Act to the passport authority. The application received, the passport authority will inquire into the request. Then, he may issue the passport or travel document for the countries the applicant has asked. Or under Section 5 (2) (b), the passport authority can limit the permission to a specified country or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any foreign country; ( 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 offense involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years; ( f) that proceedings in respect of an offense 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. ( Italics supplied) 19. Section 6 (1) speaks of the passport authority s refusal to endorse on an existing travel document under clause (b) or clause (c) of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19, the passport authority may vary or cancel the endorsements on a passport. Then, it will require the holder of a passport, by notice in writing, to deliver up the passport. Section 6 (1) concerns the country s sovereignty, integrity, security, and its friendly relations with other countries. Section 19, on the other hand, singles out enemy countries notified to have engaged in external aggression against our country. Even if a person s travel severely impairs the Government s foreign affairs, the authorities can cancel the passport. Germane for our purpose is Section 10 (3) (c): if the passport authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public. 24. A person suffers a disqualification to get the permission to travel if his or her presence in another country, as mandated under Section 6 (1) (b) of the Passport Act, to be detrimental to the security of India . A person gets no passport or travel document if, as Section 6 (2) (c) holds, his departure from India proves detrimental to the security of India . And und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veness. 2. A condition that results from the establishment and maintenance of protective measures that ensure a state of inviolability from hostile acts or influences. 3. Regarding classified matter, the condition that prevents unauthorized persons from having access to official information safeguarded in the interests of national security. 29. The same dictionary defines national security on a collective term encompassing both national defense and foreign relations of a country. Specifically, it relates to the condition provided by: (a) a military or defense advantage over any foreign nation or group of nations; (b) a favorable foreign relations position; or (c) a defense posture capable of successfully resisting hostile or destructive action from within or without, overt or covert. 30. In Cole v. Young3, the Act of August 26, 1950, gave to the heads of certain departments and agencies of the Government summary suspension and unreviewable dismissal powers over their civilian employees. It was in the interest of the national security. An employee was found having close association with alleged Communists and an allegedly subversive organization. Later, he was dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prediction model. He theorized that a miniscule occurrence, such as a tiny butterfly flapping its wings in the Amazon, could hypothetically set in motion a chain of events that could cause tornadoes to touch down in Texas a few days later. It came to be known as butterfly effect. MIT Technology Review of 6th October 2014, hoped that as data troves become richer and data-management tools grow more sophisticated, we are getting closer to realise that the butterfly effect may indeed describe a mathematically predictable reality. 6 AIR 1967 SC 1836 So goes with globalization. If a developed economy catches a cold, the stock markets across the world sneeze, as it were. 36. To reiterate, freedom of movement is a facet of fundamental rights. A citizen s right to travel can be curtailed only through the procedure established by law. If the right to travel is a part of a person's liberty, that person cannot, according to Satwant Singh Sawhney v. D. Ramarathnam6, be deprived of his freedom except by due process of law. ( g) Purposive Construction of the Provision: 37. Given the intricacy of the issue, I have asked Ms. Neenu Nair, an industrious young advocate, to be the inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... touch of rhetoric has observed in his concurring judgment that it is a basic human right recognised in Article 13 of the Universal Declaration of Human Rights, with which the Passport Authority is interfering when it refuses or impounds or cancels a passport. It is a highly valuable right which is a part of personal liberty, an aspect of the spiritual dimension of man, and it should not be lightly interfered with. 40. In the same vein, the Bombay High Court in Naresh Lalchand Bhagchandani v. Union of India 2007 SCCOnline Bom 376, has held that the provisions empowering the authorities to act, as contemplated under Section 6 or Section 10 of the Act, must be strictly construed; the applicant s acts or omissions or violation should essentially fall within the contemplation of the provisions on their strict construction. 41. A person can be denied the right to travel abroad if the authorities are satisfied that the ingredients of Section 6 are satisfied. The language of the section, according to the Punjab and Haryana High Court in Rajinder Kaur v. Union of India AIR 2004 P H 34, signifies the gravity of the involvement or likely involvement of an applicant in activities pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t economic security of the country also must be brought within the definition of errorist act, the Parliament inserted the words 'economic security' specifically in Section 15 of the U.A.(P) Act by a specific amendment. 44. In Sinder Pal, the Punjab Haryana High Court has held that if at all the Customs Authorities apprehend that the petitioner may flee the country, they can take up all possible pleas before the Court concerned. But they cannot give incorrect/wrong information and particulars to the Passport Authority misguiding them to withhold/impound the passport. Conclusion: I reckon that the RPO s Ext.P2 notice in WPC No.30005 of 2018 and Exts.P3 notices in WPC Nos.29873 29957 of 2018, laconic and inadequate as they are, cannot be sustained. True, the RPO can act on any person s information, and the Customs Department suffers no disqualification to notify the RPO. But that information received, the RPO must act independently. He must ensure that the allegations, taken as true, contravene any of the eventualities spelt out either in Section 6 or Section 10 of the Passport Act. Here, I see the Customs Department s complaint meeting no ground mentione ..... 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