2017 (2) TMI 710 - HC - Customs

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 issued, much less, penalty has already been imposed and the matter is subjudice before the Appellate Authority - If at all the Customs Authority would have apprehension regarding the travel of the petitioner, they can take up all possible pleas before the Court/concerned authority as and when any application is moved seeking permission to travel abroad but they cannot give incorrect/wrong information and particulars to the Passport Authority misguiding them to withhold/impound the passport. 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.

Summary

Issues Involved: Impounding of passport, compliance with Passport Act, allegations of smuggling, fundamental right to travel, and legality of customs authority's actions.

Issue-wise Detailed Analysis:

1. Impounding of Passport:
The petitioner was aggrieved by the action of respondent No.2, who impounded the petitioner's passport. The Customs Authority had initially taken possession of the passport during an investigation into alleged smuggling activities. Although the passport was returned when the petitioner was released on bail, the Passport Authority later directed the petitioner to surrender the passport, which was subsequently impounded.

2. Compliance with Passport Act:
The petitioner argued that the Passport Authority's action was not compliant with Section 10(3)(C) of the Passport Act, 1967, which allows impounding a passport only if it is in the interest of sovereignty, integrity, security of India, friendly relations with foreign countries, or in the interest of the general public. The court found that the decision to impound the passport lacked basis and reasons, as required by the Act.

3. Allegations of Smuggling:
The Customs Authority alleged that the petitioner was involved in smuggling Red Sanders Wood, leading to the impounding of the passport. However, the court noted discrepancies in the information provided by the Customs Authority, including incorrect claims about the petitioner's evasion of service in the complaint filed under Sections 135 and 135A of the Customs Act, 1962.

4. Fundamental Right to Travel:
The petitioner cited the Supreme Court judgments in Satwant Singh Sawhney v. D. Ramarathnam and Suresh Nanda v. CBI, which established that the right to travel is a fundamental right under Article 21 of the Constitution. The court agreed that withholding the passport violated this right and emphasized that the Passport Authority must have valid reasons to impound a passport.

5. Legality of Customs Authority's Actions:
The court scrutinized the actions of the Customs Authority, finding that the information provided to the Passport Authority was incorrect and misleading. The court highlighted that the Customs Authority's apprehension and suspicion could not justify impounding the passport without proper legal grounds.

Conclusion:
The court concluded that the impounding of the petitioner's passport was misplaced and untenable, suffering from illegality and fallacy. The Passport Authority was directed to release/re-issue the passport within 15 days, subject to compliance with the Passport Act's provisions. The court also allowed the Customs Authority to raise objections if the petitioner sought permission to travel abroad, ensuring that any future actions would be legally justified. The writ petition was allowed, and the impugned action was set aside.