2012 (11) TMI 1273 - HC - Customs

Summary

Issues Involved:
1. Power to impound a passport.
2. Right to travel as a fundamental right.
3. Jurisdiction of Customs Officers and Courts under the Passports Act, 1967.
4. Distinction between seizure and impounding of documents.

Summary:

1. Power to Impound a Passport:
The primary issue was whether the Judicial Magistrate and Customs Officers have the authority to impound the passport of the Petitioner/Accused. The Court referred to the decision in *Suresh Nanda Vs. C.B.I* and held that "impounding of a passport can only be done by the passport authority u/s 10(3) of the Passports Act, 1967." The Court emphasized that neither the Investigation Officer nor the Court has the power to impound the passport pending investigation or trial.

2. Right to Travel as a Fundamental Right:
The Petitioner/Accused argued that the "Right of Travel to a foreign Country" is a fundamental right under Article 21 of the Constitution of India, which cannot be restricted except in accordance with the law. The Court acknowledged this argument, reinforcing that any restriction on this right must be legally justified.

3. Jurisdiction of Customs Officers and Courts under the Passports Act, 1967:
The Court noted that the Passports Act, 1967, is a special enactment that prevails over the general provisions of the Criminal Procedure Code. It was highlighted that "impounding of a passport cannot be done by the Court u/s 104 of the Cr.P.C., though it can impound any other document or thing." The Court also referred to various precedents, including *Veenita Gupta Vs. State* and *K.Parvathy Vs. The Senior Intelligence Officer*, which supported the view that only the passport authority has the power to impound a passport.

4. Distinction Between Seizure and Impounding of Documents:
The Court differentiated between the seizure and impounding of documents, stating that "a seizure is made at a particular moment when a person or authority takes into his possession some property which was earlier not in his possession." However, "if after seizing of a property or document the said property or document is retained for some period of time, then such retention amounts to impounding of the property or document." The Court concluded that in this case, the passport had been seized but not impounded, and thus, the Customs Authority should return the passport to the Petitioner.

Order:
The Court set aside the order of the Learned Judicial Magistrate No.I, Tiruchirapalli, and directed the Customs Authority to return the passport of the Petitioner within ten days. The Customs Authority was instructed to retain a duly attested photocopy of the passport for use as secondary evidence if necessary. The Petitioner was required to execute an adequate bond to the satisfaction of the Learned Magistrate and was prohibited from leaving the country without express permission from the Magistrate, which should be granted only after providing an opportunity for the Customs Authority to be heard. The Criminal Revision Petition was allowed, and the connected Miscellaneous Petition was closed.