2017 (10) TMI 292 - HC - Indian Laws

Impounding of passport - Held that - It is evident from the impugned order that the learned Single Judge was alive to and in fact applied the rule in Suresh Nanda (2008 (1) TMI 876 - SUPREME COURT). However, it is at the same time facially apparent that instead of quashing the impounding order, the Court permitted retention of the passport and facilitated its onward transmission to the Regional Passport Officer which in effect itself amounts to impounding. This kind of impounding was frowned upon and held to be unauthorized in Suresh Nanda (supra) when it was declared that even the Court cannot impound a passport. Though, no doubt, Section 104 Cr.P.C. states that the Court may, if it thinks fit, impound any document or thing produced before it, in our opinion, this provision will only enable the Court to impound any document or thing other than a passport. Thus, the facilities or otherwise impounding, in our opinion, was not in order. Therefore, the directions in paragraph 6 requiring the forwarding of the passport to the Regional Passport Officer is hereby set aside. The passport shall be released forthwith to the appellant. This will, however, not preclude the Regional Passport Officer from initiating proceedings under Section 10 (1) of the Passport Act, 1967 in line with the Single Judge s observations and declarations.

Summary

Issues:
Impounding of passport without appropriate proceedings under the Passports Act, 1967.

Analysis:
The appellant challenged the order of a learned Single Judge, which accepted the impounding of the passport before seizure without proper initiation of proceedings under the Passports Act, 1967. The appellant contended that the directions given were contrary to the Supreme Court's decision in Suresh Nanda v. CBI, (2008) 3 SCC 674, which distinguished between seizure and impounding of a passport. The Court clarified that impounding can only be done by the passport authority under Section 10(3) of the Passports Act, 1967, following the procedure in Section 10(1). The respondents argued that the Single Judge granted a two-week window to initiate impounding proceedings, which was sufficient at that stage.

The relevant Section 10 of the Passport Act, 1967 allows the passport authority to vary, cancel endorsements, or impound passports under specific circumstances. In Suresh Nanda's case, the Court emphasized that only the passport authority has the power to impound a passport under Section 10(3) of the Act. The police can seize a passport under Section 102(1) Cr.P.C but cannot impound it. Impounding a passport has civil consequences, requiring a hearing before the passport authority. The Court held that neither the passport authority nor the appellant was given an opportunity for impounding the passport, making the retention by the CBI illegal.

The High Court noted that the learned Single Judge applied the rule in Suresh Nanda's case but permitted the retention and transmission of the passport to the Regional Passport Officer, effectively impounding it. However, the Court reiterated that even the Court cannot impound a passport, as it is a special provision under Section 10(3) of the Passports Act. Consequently, the directions for forwarding the passport to the Regional Passport Officer were set aside, and the passport was ordered to be released to the appellant immediately. The Regional Passport Officer can still initiate proceedings under Section 10(1) of the Passport Act, 1967, as per the Single Judge's observations.

In conclusion, the High Court allowed the appeal, setting aside the impounding order and directing the release of the passport to the appellant. The judgment emphasized the distinction between seizure and impounding of a passport, reiterating that only the passport authority has the power to impound a passport under the Passports Act, 1967. The Court clarified that impounding a passport has civil consequences and must be done following the prescribed procedure and after providing a hearing to the concerned party.