2021 (12) TMI 363 - HC - Customs

Seeking release of his passport - impounding of a passport entails civil consequences - opportunity of hearing to the persons concerned - Section 10A of the Passport Act, 1967 - HELD THAT - The petition had been filed challenging the condition imposed by the learned CMM granting permission to that petitioner to travel to Afghanistan subject to terms and conditions as imposed thereby and it was observed to the effect that the Court finds no ground to release the passport of the petitioner and permit the petitioner to leave the country without depositing the penalty of ₹ 13 lacs. The submission made in the instant case on behalf of the petitioner is to the effect that without prejudice to the rights and contention that the petitioner may raise in the appeal under Section 129E of the Customs Act, 1962, the petitioner is willing to deposit the entire penalty amount of ₹ 7 lacs. Taking into account the factum that the Passports Act, 1967 has itself been legislated inter alia to regulate matters incidental or ancillary to the issuance of passports and travel documents and regulation of departure from India of citizens of India and to other persons, the same would also include within its domain the impounding and cancellation of such passports. The petition is disposed of with directions to the effect that the impugned order dated 18.11.2021 of the learned CMM, New Delhi to the extent that it directs that the passport of the petitioner cannot be released is set aside.

Issues Involved:
1. Legality of the impugned order declining the release of the petitioner's passport.
2. Applicability of the Passports Act, 1967 to foreign nationals.
3. Requirement for the petitioner to deposit the penalty amount imposed by the Customs Authority.
4. Comparison with previous judicial precedents.

Detailed Analysis:

1. Legality of the Impugned Order Declining the Release of the Petitioner's Passport:
The petitioner challenged the order dated 18.11.2021 by the learned CMM, New Delhi, which declined the release of his passport. The order observed that since the petitioner was a foreign national, the Department of Customs' apprehension that he might flee if the passport was released appeared reasonable. The court noted that the daily pursuits of the petitioner could be managed through certified copies of the passport. Additionally, it was observed that adjudication proceedings had culminated, and a penalty was imposed. The Customs Authority opposed the petition, arguing that the application seeking the release of the passport was not maintainable as the passport had not been directed to be impounded at any stage.

2. Applicability of the Passports Act, 1967 to Foreign Nationals:
The petitioner relied on the Supreme Court's verdict in Suresh Nanda Vs. Central Bureau of Investigation (2008) 3 SCC 674, which stated that impounding a passport entails civil consequences, and authorities must provide an opportunity for a hearing. The petitioner argued that the Passports Act, 1967 applies to both Indian citizens and other persons, including foreign nationals, as indicated in the preamble and Section 3 of the Act. The court agreed with this interpretation, noting that the Act regulates the departure from India of citizens and other persons, including foreign nationals.

3. Requirement for the Petitioner to Deposit the Penalty Amount Imposed by the Customs Authority:
The Customs Authority highlighted that the petitioner had not deposited the penalty of ?7 lakhs imposed under Sections 112(a), 112(b), and Section 114AA of the Customs Act, 1962. The petitioner contended that the adjudication proceedings had not attained finality, as the period for filing an appeal under Section 128 of the Customs Act, 1962 had not elapsed. The petitioner expressed willingness to deposit the entire penalty amount without prejudice to his rights and contentions in the appeal. The court directed that the passport be released to the petitioner upon depositing the total penalty amount of ?7 lakhs within three weeks.

4. Comparison with Previous Judicial Precedents:
The Customs Authority relied on several precedents, including Ruhullah Amin Vs. Sh. Amit Kumar Air Customs Officer and Air Customs Vs. Farhad Hussain Eidi Zada, where the courts denied the release of passports to foreign nationals due to the risk of them absconding. However, the court distinguished these cases from the present one, noting that the adjudication in the petitioner's case had been completed, unlike in the cited cases where investigations were still ongoing. The court also noted that the petitioner was willing to deposit the penalty amount, which was not the case in the cited precedents.

Conclusion:
The court set aside the impugned order dated 18.11.2021 to the extent that it directed the non-release of the petitioner's passport. The court directed the release of the passport upon the petitioner depositing the penalty amount of ?7 lakhs within three weeks. The petition was disposed of accordingly.

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