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TMI Blog2017 (2) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - CWP No.9781 of 2016 (O&M) - - - Dated:- 6-2-2017 - MR. AMIT RAWAL, J. For The Petitioner : Mr. Ashish Aggarwal, Senior Advocate with Mr. Deepak Gupta, Advocate For The Respondent : Mr. Rajeev Verma, Advocate AMIT RAWAL J. (ORAL) C.M. No.1517 of 2017 Application is allowed. Replication is taken on record. CWP No.9781 of 2016 The petitioner is aggrieved of the impugned action of respondent No.2, who has impounded the passport of the petitioner bearing No.H-7164937 valid upto 22.09.2019. Mr. Ashish Aggarwal, learned Senior Counsel assisted by Mr. Deepak Gupta, Advocate appearing for the petitioner submits that the petitioner from the last five years has travelled couple of times to various countries including Dubai and Singapore. The petitioner is in the business of exporting rice to different countries and in this aspect of the matter, he has to travel abroad. However, in the year 2013, office of Commissioner of Customs (Anti Smugg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Appellant's passport, PO may release his passport. iii) the appeal is not allowed. There is a categoric pleading in paragraph 17 of the writ petition, which reads as under:- 17. That the respondent sought a report from the police authorities. The police authorities submitted their report to the respondent. After receipt of police report, the respondent wrote to the Customs Department regarding release of the passport of the petitioner. The Customs Authorities in their report submitted that order has been passed and prosecution has been launched. The respondent showed both reports to the petitioner when the petitioner visited office of respondent. The verification conducted by the local police had recommended for release of the passport yet the respondent did not release the passport and the factum of averments in the corresponding paragraph of the written statement have been stated to be a matter of record, which reads as under:- 17. That the contents of para No.17 of the petitioner are matter of record. In order to buttress his arguments, he has relied upon the provisions of Section 10 of the aforementioned Act that the provisions of clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority, in essence, more than ₹ 22 lacs have been deposited and the matter is subjudiced. If at all the Passport Authority is to withhold the passport, they could have issued the show cause notice as per sub-section 5 of Section 10 of the aforementioned Act. In support of aforementioned conditions, reference is made to the judgment rendered by Hon'ble Supreme Court in Satwant Singh Sawhney Vs. D. Ramarathnam, Assistant Passport Officer, New Delhi and others AIR 1967 (SC) 1836 , particularly paragraphs 32 and 33 to contend that right to travel is a fundamental right and withholding of the same tantamounts to violation of Article 21 of the Constitution. He further submit that once Legislature could not do, the executive could not obviously retain the passport. Reference has also been made to the judgment rendered by Hon'ble Supreme Court in Suresh Nanda Vs. CBI 2008 (3) SCC 674 to contend that even the Court cannot impound the passport in exercise of power under Section 104 and 102 of the Criminal Procedure Code, being a general law, whereas the Passport Act is a special law, in essence, special law would prevail over the general law. If at all, the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce with the provisions of law. On the contrary, Mr. Rajeev Verma, learned counsel appearing on behalf of the respondents submits that the averments made in the written statement are on the basis of the communication received from the Customs Authorities i.e. Annexures R-2/1 and R-2/2. As per the information provided by the Customs Authorities, the petitioner is stated to have indulged into smuggling activities and his passport has been impounded only on the basis of apprehension regarding the sovereignty and integrity of India, in view of the provisions of the Passport Act referred to above. He does not deny the factum of having not complied with the order of the Appellate Authority, in essence, the police had conducted verification and submitted report but in view of the letter dated 05.04.2016 (Annexure R- 2/2), the passport has not been released as it has been revealed to the Passport Authorities that the petitioner is avoiding service in the complaint ibid, thus, urges this Court for dismissal of the writ petition. I have heard learned counsel for the parties, appraised the paper book and of the view that there is merit and force in the submissions of Mr. Aggarwal, le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them to withhold/impound the passport. I am, prima facie, of the view that the information indicated in Annexure R-2/2 is totally off the record. For the reasons aforementioned, I have no hesitation in holding that 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 in accordance with terms and conditions of the Passport Act within 15 days from the date of receipt of certified copy of this order. However, it will not prevent the Passport Authorities from taking any action, in case any information is provided, but it would be subject to provisions of sub-section 5 of the Section 10 of the Passport Act so that the petitioner can be put to show cause notice and rebut the alleged allegation. However, the aforementioned order is subject to the order of the trial Court/Appellate Authority. The petitioner shall take necessary permission from the Court by moving appropriate application in case he intends to go abroad. The writ petition stands allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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