2021 (12) TMI 688 - HC - Customs

Seeking return of petitioner s passport - Section 104 of the Customs Act in connection with offences punishable under Sections 132 and 135 thereof - HELD THAT - There are no substance in the stand of the respondents that if the passport is returned to him, he will flee the country. In fact, Mr. Dandekar, learned advocate for the petitioner is right in his contention that it is for the precise purpose of leaving this country that return of the petitioner s passport is required and that is his prayer. Additionally, the petitioner has been in India for nearly four years. One does not know whether his visa is valid or not. Overstaying could lead to punishable offences. This is an additional ground why the passport ought to be returned to ensure that an individual such as the petitioner may leave the country soon. The writ petition stands disposed of with a direction upon the respondent no. 2 to return the passport of the petitioner to him within a fortnight from date, provided an approach in this behalf is made together with a copy of this order.

Summary

Issues:
1. Petitioner seeking the return of his passport from respondent no. 2.
2. Dispute over the surrender of the passport and the petitioner's ability to leave India.
3. Allegations of the petitioner fleeing the country if the passport is returned.
4. Duration of the petitioner's stay in India and visa validity.

Analysis:
1. The petitioner, a Malaysian national, filed a writ petition seeking the return of his passport, which was confiscated by the Directorate of Revenue Intelligence (DRI) after he was found carrying a canister containing human embryos upon landing in Mumbai on March 15, 2019. The petitioner was arrested under the Customs Act, and an adjudication case was initiated against him, resulting in a penalty of ?3,50,000 imposed on him, which he paid in full on September 11, 2020. Despite payment, the passport was not returned, preventing his return to Malaysia.

2. The respondents claimed that the petitioner voluntarily surrendered his passport in connection with the seizure of the human embryos. However, the petitioner disputed this claim, alleging that repeated requests for the return of his passport were ignored. A previous judgment expressed concerns about the petitioner fleeing the country if his passport was returned, affecting the adjudication case.

3. The High Court rejected the respondent's argument that returning the passport would lead to the petitioner fleeing the country. The petitioner's counsel argued that the passport was needed for him to leave India, which was his intention. The Court confirmed that no other prosecutions were pending against the petitioner under different laws, removing the basis for withholding the passport.

4. Additionally, considering the petitioner had been in India for nearly four years, the Court highlighted the potential visa validity issues and the risk of overstaying leading to punishable offenses. Therefore, the Court directed respondent no. 2 to return the petitioner's passport within a fortnight to facilitate his departure from the country, emphasizing that there was no valid reason to continue withholding the passport.

This detailed analysis of the judgment highlights the key issues, arguments, and the final decision of the High Court regarding the return of the petitioner's passport.