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2018 (11) TMI 1233 - HC - CustomsSurrender of Passports - Smugglers - case of petitioners is that the right to travel is a fundamental right, and that right stands denied if the petitioners passports are taken away - Section 10 of the Passport Act - Held that - A person desirous of visiting a foreign country or countries must apply under Section 5 of the Act to the passport authority. The application received, the passport authority will inquire into the request. Then, he may issue the passport or travel document for the countries the applicant has asked. Or under Section 5 (2) (b), the passport authority can limit the permission to a specified country or countries. Still, under clause (c) of the same subsection, the authority can refuse the permission. With partial refusal or total refusal under clause (b) or clause (c) of subsection (2) respectively, the passport authority must record the reasons. Section 6 (1) speaks of the passport authority s refusal to endorse on an existing travel document under clause (b) or clause (c) of sub-section (2) of Section 5. On the other hand, sub-section (2) deals with the authority s refusal to issue the passport or travel document for visiting any foreign country under clause (c) of subsection (2) of Section 5. That is, sub-section (2) concerns issuing the passport, rather than endorsing on the passport. It contains more grounds of refusal than sub-section (1). Yet clause (b) in subsection (1) and clause (c) in subsection (2) are common that the presence of the applicant in such country may, or is likely to, be detrimental to the security of India. A person suffers a disqualification to get the permission to travel if his or her presence in another country, as mandated under Section 6 (1) (b) of the Passport Act, to be detrimental to the security of India . A person gets no passport or travel document if, as Section 6 (2) (c) holds, his departure from India proves detrimental to the security of India . And under Section 10 (3) (c), a passport is subjected to variation, impounding, or revocation in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the public. Can Security of India include Economic Security of India ? - Held that - Explanation to Section 157A of the Patents Act, 1970, defines the term. The expression Security of India takes into its sweep any action necessary for the security of India. But the definition is contextual and refers to fissionable materials; traffic in arms, ammunition, and implements of war, and other goods and materials relatable to a military establishment. It also covers the actions taken in time of war or other emergency in international relations - Interest of Security of India also stands defined in Section 68 of the Semiconductor Integrated Circuit Layout-Design Act. Again this definition, too, is contextual and relates to any action necessary for the security of India which relates to the use of a layout-design or a semiconductor integrated circuit incorporating a layout-design or an article incorporating such semiconductor integrated circuit . And this designing must, in turn, be relatebale to fissionable materials, the traffic in arms, and so on, as is defined in the Patents Act, 1970. The American Supreme Court has held that the term national security is not defined in the Act of August 26, 1950, but it is clear from the statute that it should comprehend only those activities of the Government that are directly concerned with the protection of the Nation from internal subversion or foreign aggression, and not those which contribute to the strength of the Nation only through their impact on the general welfare. Right to travel is a fundamental right - Any provision that affects this fundamental right needs strict interpretation. Interpolation is not one established method of interpretation, especially, of a provision with far-reaching consequences economic is an interpolation before security - A person can be denied the right to travel abroad if the authorities are satisfied that the ingredients of Section 6 are satisfied. The RPO can act on any person s information, and the Customs Department suffers no disqualification to notify the RPO. But that information received, the RPO must act independently. He must ensure that the allegations, taken as true, contravene any of the eventualities spelt out either in Section 6 or Section 10 of the Passport Act - security will not encompass economic security. Petition allowed.
Issues Involved:
1. Authority of the Regional Passport Officer (RPO) to impound passports based on Customs Department's communication. 2. Whether "security of India" under the Passport Act includes "economic security." 3. Right to travel as a fundamental right and its implications on passport impoundment. Issue-wise Detailed Analysis: 1. Authority of the Regional Passport Officer (RPO) to impound passports based on Customs Department's communication: The petitioners argued that the RPO had no authority to issue notices commanding them to surrender their passports, contending that the right to travel is a fundamental right, and the RPO's action, based on the Customs Department's communication, was an abdication of discretion conferred by the Passport Act. The respondents maintained that the RPO acted within his statutory powers under Section 10 of the Passport Act, which allows impounding passports if the holder indulges in activities detrimental to the nation's economic security. The court found that the RPO must act independently upon receiving information and ensure that allegations meet the grounds specified in Sections 6 or 10 of the Passport Act. 2. Whether "security of India" under the Passport Act includes "economic security": The court examined the statutory provisions of the Passport Act, including Sections 6 and 10, which deal with the refusal to issue or impound passports on grounds related to the security of India. The term "security" was scrutinized in various legal contexts, including definitions from other statutes and international references. The court concluded that "security of India" does not encompass "economic security" within the meaning of the Passport Act. The court emphasized that any provision affecting the fundamental right to travel requires strict interpretation, and interpolation of terms like "economic" before "security" is not permissible. 3. Right to travel as a fundamental right and its implications on passport impoundment: The court reiterated that the right to travel abroad is a part of personal liberty under Article 21 of the Constitution, as established in Maneka Gandhi v. Union of India. Any restriction on this right must follow the procedure established by law. The court noted that the grounds for refusing or impounding a passport are well-defined in the Passport Act, and authorities cannot introduce new grounds beyond the existing provisions. The court highlighted that national security, sovereignty, public order, and public interest must be of a high degree to justify such restrictions. Conclusion: The court set aside the RPO's notices in all three writ petitions, stating that the Customs Department's complaint did not meet the grounds specified in the Passport Act. The court held that "security" under the Passport Act does not include "economic security." Consequently, the RPO was directed to consider the petitioners' requests for reissue of passports expeditiously within three weeks. No order on costs was made.
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