TMI Blog2008 (10) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... seeks a writ of mandamus to command the respondent no.2 to return the passport by filing the present petition under Article 226 of the Constitution of India. Few facts that are relevant for adjudicating the issues involved are narrated hereinbelow. 2. The Petitioner along with his wife and friends had gone abroad on holidays and when the Petitioner returned back to India on 27 th May, 2007 the Petitioner was charged for carrying dutiable goods on which duty was not paid as per the provisions of the Customs Act, 1962. The Petitioner was arrested by respondent No.1 - Directorate of Revenue Intelligence. The Petitioner approached the Court of Additional Chief Metropolitan Magistrate, Bombay and applied for bail. The Petitioner was released on bail by the Addl. Chief Metropolitan Magistrate on the same day. The Respondent no.1 moved the Magistrate on 28 th May, 2007 seeking judicial custody of the Petitioner and also prayed for grant of permission by the Court to retain the passport of the Petitioner with a view to facilitate further investigation. The Respondent no.1 had also challenged the order granting bail to the Petitioner by filing a Criminal Application in the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing for the Petitioner has advanced the following contentions : (a) That the authority carrying out investigation and/or inquiry under the Foreign Exchange Management Act and/or under the Income Tax Act has no authority, in law, to impound the passport. The passport can only be impounded by having recourse to the provisions of the Passport Act by the authority vested with the power under the said Act. (b) Section 37 of the Foreign Exchange Management Act merely confers investing power by making reference to Section 131(3) of the Income Tax Act. Power to search and seize "documents" which is available to the authority under section 131(3) does not extend to seizure of passport. The term "documents" cannot be construed to mean and include a passport, for dealing with which a separate enactment exists viz. Passports Act. Passports Act being a special statute it shall exclude the applicability of a general provision to be found in other enactments dealing with seizure of documents. (c) Placing reliance on the judgment in the case of Satwant Singh Sawhney v. Union of India, reported in AIR 1967 S.C. 1836, and Maneka Gandhi V. Union of India, reported in AIR 1978 SC 597, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . According to Oxford Dictionary "impound" means to take legal or formal possession. In the present case, the passport of the appellant is in possession of CBI right from the date it has been seized by CBI. When we read section 104 Cr.P.C. and section 10 of the Act together, under Cr.P.C., the Court is empowered to impound any document or thing produced before it whereas the Act speaks specifically of impounding of the passport. 10. Thus the Act is a special Act relating to a matter of passport, whereas section 104 CrPC., authorises the court to impound document or thing produced before it. Where there is a special Act dealing with specific subject, resort should be had to that Act instead of general Act providing for the matter connected with the Specific Act. As the Passports Act is a special Act, the rule that "general provision should yield to the specific provision" is to be applied. See Damji Valji Shah v. LIC of India, Gobind Sugar Mills Ltd. V. State of Bihar and Belsund Sugar Co. Ltd. V. State of Bihar . 11. The Act being a specific Act whereas Section 104 CrPC. is a general provision for impounding any document or thing, it shall prevail over th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise of similar or analogous powers in relation to impounding or retention of the passport, then, those powers would also be available to the authorities for impounding the passport. 9. The learned Solicitor General has placed reliance on the following judgments in support of his contentions : (i) Unreported judgment in the case of Suman Sehgal v. Union of India anr. Dated 18.4.2006 in W.P.(C) No.1212/2006. (ii) S. Mohanraj v. Deputy Director, Enforcement Directorate, Madras , 1995 (75) E.L.T. 251(MAD.) = 1995 Cri.L.J. 3018. (iii) Abdul Kader Mohamed Jhaveri v. Union of India and ors . AIR 1987 Gujarat 176; and (iv) Mrs. Hamida Habib Jeelani @ Hamida Begum v. The Secretary to Government, Home Department, Government of A.P. anr., 1996 Cri. L.J. 1086. 10. For proper appreciation of the submissions, we reproduce Section 104 of Cr.P.C. which has been interpreted by the Supreme Court, so also Section 131(3) of the Income Tax Act, on which reliance is placed by the learned Solicitor General to support the action of impounding the passport. Section 104 of Cr.P.C. reads thus : "104. Power to impound document, etc., pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct could be extended to validate impounding of passport. 12. In view of the clear pronouncement by the Supreme Court holding the Passports Act to be a complete code in dealing with impounding of the passport, we have no iota of doubt that the respondent's act of impounding of the Petitioner's passport is without authority of law. In the result, we cannot accept the submission made on behalf of the learned Solicitor General that impounding 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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