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TMI Blog2012 (11) TMI 1273X X X X Extracts X X X X X X X X Extracts X X X X ..... Judicial Magistrate No.II, Tiruchirapalli, it is the submission of the Learned Counsel for the Petitioner/Accused that the impugned order is unsustainable in law because of the fact that neither the Investigation officer nor the Court have the power to impound the Pass-port pending investigation on trial. 4. The Learned Counsel for the Petitioner/Accused urges before this Court that the 'Right of Travel' to a foreign Country as it is a fundamental right to a specific flowing from the tenor of Article 21 of the Constitution of India, which cannot be crippled or taken away except in accordance with law. 5. The vital plea taken on behalf of the Petitioner/Accused is that the Customs Officers cannot detain the Pass-Port of the Petitioner/Accused indefinitely and that too without any rhyme or reason. 6. It is the contention of the Learned Counsel for the Petitioner/Accused that the Pass-Ports Act, 1967 is a Special Enactment and the Special Act prevails over the general provisions of Criminal Procedure Code. 7. Lastly, the Learned Counsel for the Petitioner/Accused vehemently argues that as per Section 104 of Cr.P.C., a Court of Law cannot impound the Pass-Port of a Citizen, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . STATE, REP. BY DEPUTY SUPERINTENDENT OF POLICE, CENTRAL BUREAU OF INVESTIGATION, ANTI CORRUPTION BRANCH, CHENNAI 600 006 {(2011) 1 MLJ (Crl) 326}, wherein at page 327, it is held as follows:- "The Police are not empowered to retain the passports of the accused for the purpose of evidence for the prosecution in proof of the charges levelled against the provisions of the Passports Act, as the certified xerox copies of the same can be exhibited as evidence in trial. Passports Act which is a special enactment while dealing with the impounding of passport will prevail over the provisions of the criminal procedure code which is a general law. Impounding of a passport cannot be done by the Court under Section 104 of the Cr.P.C., though it can impound any other document or thing." 10. That apart, the Learned Counsel for the Petitioner cites the order passed by this Court dated 2/3/2012 in Crl.R.C.(MD) No.90 of 2012 between K.N.RAMAJEYAM Vs. THE STATE, REPRESENTED BY THE ASSISTANT COMMISSIONER OF POLICE, SPECIAL CELL FOR ANTI-LAND GRABBING, CITY CRIME BRANCH, TRICHY DISTRICT, wherein at paragraph Nos.9 and 10, it has among other things laid down as follows:- "9. Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 12/8/2011 and remanded to judicial custody in respect of an offence under the Customs Act, 1962. 13. Expatiating his contentions, the Learned Special Public Prosecutor (Customs) puts forth an argument that there is a difference between seizing of a document and impounding of a document in the eye of law. 14. Added further, he submits that in the instant case, the Passport of the Petitioner/Accused has only been seized and not impounded and that the Learned Judicial Magistrate No.I, Tiruchirapalli has rightly assigned the reasons for dismissing the Crl.M.P.No.1618 of 2012 filed the Petitioner/Accused (for return of Passport to him) and the said order does not from any vice or capriciousness in the eye of law. 15. The Learned Special Public Prosecutor (Customs) relies on the decision of the Honourable Supreme Court in SURESH NANDA Vs. CENTRAL BUREAU OF INVESTIGATION {(2008) 3 SUPREME COURT CASES - 674}, at special page 675, wherein it held as follows:- "While the Police may have the power to seize a passport under Section 102 (1) Cr.P.C., it does not have the power to impound the same. Impounding of a passport can only be done by the Passport Authority under Section 10 (3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, a direction was issued to surrender the passport. The attempt of the petitioner is to get back the passport and to leave India. Though learned counsel appearing for the petitioner submitted that petitioner is prepared to return back to India immediately after getting extention of the visa and therefore, the passport is to be released and the learned Magistrate cannot retain the passport and thereby impounded the passport as against the provision of Section 10 (3) of the Act, on the facts of this case, I find that if the passport is to be released to the petitioner, he will not be available for trial. Petitioner was absconding. To assure the presence of an accused, while granting bail, Court can direct him not to leave India. For that purpose he was asked to surrender the passport. Such surrender or its retention for the limited purpose cannot be treated on impounding the passport. In such circumstance, I do not find it in the interest of administration of criminal justice to release the passport to the petitioner at this stage. Learned Magistrate is directed to commit the case expeditiously to the Sessions Court and the Sessions Judge to dispose the case without any delay." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impound is imprisonment for not less than two years etc., can be done only by the competent authority under the Passport Act and neither the Customs Authority nor the Court can impound the Passport. 22. It is to be noted that the Code of Criminal Procedure has been repelled by means of 1973 Act and search warrants can be issued as per Sections 93 to 101 of Cr.P.C., and also seizure can be effected under Sections 102 to 105 thereof. In law, a seizure is made at a particular point of time. But, if after seizure of a property or a document, the said property or document is retained for some period of time or for sufficiently long period, then such retention may amount to impounding of the property/document. 23. Indeed, for an offence under Section 132 of the Customs Act, in respect of false declaration, false documents etc., the punishment extends to an imprisonment of two years or with fine or with both.Section 135 of the Customs Act speaks of evasion of Customs duty and prescribes punishment thereof. The Petitioner/Accused, according to the prosecution case has come from Colombo through ship to Tuticorin on 11/8/2011 and further, he has gone to Trichy and while he was staying at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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