Crl.M.C.No. 1390 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **TUESDAY, THE 19TH DAY OF JUNE 2012/29TH JYAISHTA 1934** ## **Crl.MC.No. 1390 of 2012 () -------------------------CRL.MP.166/2012 IN R.C.5 (A) OF 2012 OF CBI/SPE/COCHIN** **PETITIONER(S)/ACCUSED NO.2: --------------------------** **ASHRAF BACKER MANAGING DIRECTOR M/S.ASR DREDGING SERVICES PVT. LTD., 7C ORIENTAL GARDEN, SOUTH TOWER, KARUKAPPALLY JUNCTION DESHABHIMANI ROAD, COCHIN-26.** **BY ADVS.SRI.B.RAMAN PILLAI** **SRI.R.ANIL SRI.ANIL K.MOHAMMED SRI.SUJESH MENON V.B. SRI.SHYAM ARAVIND SRI.T.ANIL KUMAR SRI.MANU TOM** ## **RESPONDENT/COMPLAINANT(S):** **---------------------------** **1. CBI, COCHIN REPRESENTED BY ITS STANDING COUNSEL HIGH COURT OF KERALA.** ## **2. STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, KOCHI-31.** **BY SRI.P.CHANDRASEKHARA PILLAI, SC FOR C.B.I. BY ADDL. DGP SRI.C.RASHEED** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19-06-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **S.S.SATHEESACHANDRAN, J. ------------------------------Crl.M.C.NO.1390 OF 2012 ----------------------------------Dated this the 19[th] day of June, 2012** ## **O R D E R** The 2[nd] accused (A2) in a crime registered by the Central Bureau of Investigation, for short, the 'C.B.I', numbered as R.C.No.5 (A) of 2012 of CBI/SPE/Cochin, which is now at the stage of investigation, is the petitioner in the above petition. 2. Petitioner is the Managing Director of a concern, namely, M/s. ASR Dredging Service Private Limited, which is awarded a contract work for dredging sand in connection with the establishment of Ezhimala Naval Academy at Ezhimala, Kannur. The accusation imputed against the petitioner is that, he and another (A1), Commanding Officer of the Naval Academy, Ezhimala, criminally conspired together and sold dredged sand in open market, and, thereby, caused wrongful loss to the tune of Rs.1,40,62,500/- to the Government, and, thereby, committed **Crl.M.C.No.1390/2012** **2** offences punishable under Section 120B and 420 of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. During the course of investigation of the crime, the C.B.I, investigating agency, moved an application before the Special Judge (SPE/CBI)-I, Ernakulam) seeking issue of orders to the passport authorities for impounding the passport of the 2[nd] accused - the petitioner. Annexure-C order was passed by the learned Special Judge, by which, the Passport Authority was directed to impound the passport of the petitioner. Challenge in the petition invoking Section 482 of the Code of Criminal Procedure, for short, the 'Code' is against the legality of that order. 3. The learned counsel for the petitioner relying on **Suresh Nanda v. C.B.I. (AIR 2008 SC 1414)** and **Nidhi Goel v. State of Kerala and Others (2012 (2) KHC 694)** contended that even the court cannot pass an order of impounding of the passport and, therefore, no order can be **Crl.M.C.No.1390/2012** **3** passed by the court when the investigation of the crime is in progress directing the passport authority to impound the passport of an accused person. Power of the court to impound a passport can be invoked only if the offence relates to the passport or a travel document, and that too, on conviction of such offender as envisaged under sub section (7) of Section 10 of the Passports Act, 1967, is the submission of the counsel pointing out that such order of impounding is also subject to final adjudication in appeal against such conviction. When such be the case, Annexure-C order passed by the Special Judge, which, according to the counsel, was without even giving notice and hearing the counsel for the accused, is unsustainable under law. Though it is stated in Annexure-C order that petitioner was represented by a counsel, it had reference to the engagement previously made by him and, in fact, the petitioner was not heard before the passing of Annexure-C order, which was rendered by the Special judge on an application moved by the C.B.I. during the investigation of the crime, is the further submission of the **Crl.M.C.No.1390/2012** **4** learned counsel for the petitioner. In any view of the matter, Annexure-C order is unsustainable and it is liable to be revoked, submits the counsel urging that the petitioner's family is settled at Singapore and he has business activities in India and also in foreign countries including Singapore. Counsel would also submit that he has business activities in the State also and as such, the apprehension, if any, entertained by the C.B.I that he would flee away from the investigation of the crime has no value or merit at all. Countering the arguments raised by the counsel for the petitioner, the learned Standing counsel for the C.B.I would contend that the court has ample power to pass an order as under Annexure-C. Even when the accused is enlarged on bail, it is an usual practice to impose conditions to direct such accused to produce his passport and its retention till the case is over, submits the counsel. It is also pointed out that the investigation is now only in the preliminary stages and the presence of the petitioner (A2) is absolutely essential for its fair completion. The question that looms up for consideration is **Crl.M.C.No.1390/2012** **5** whether the court has any power to pass an order for impounding a passport. That question is no longer res integra. Though the learned Standing counsel for the C.B.I would contend that the court has ample power for impounding a passport under Section 104 of the Code that submission cannot be accepted. The Apex Court has categorically and in unequivocal terms has held otherwise. In Suresh Nanda's case, cited supra, the Apex Court has held that though the court is empowered to impound any document or thing produced before it, that provision will only enable the court to impound any document or thing other than a passport. So much so, with respect to a passport, the court cannot exercise its powers under Section 104 of the Code for impounding that document. Further more, so far as passports and travel documents are concerned, a special Statute, the Passports Act, 1967 and the rules and regulations thereunder deal with impounding of such documents. At the most, during the pendency of a criminal proceedings, provided, such proceedings are pending before the court, then, it **Crl.M.C.No.1390/2012** **6** may be open to the court under Section 10 (3) (e) of the Passports Act to address the passport authority to retain such passport of the person proceeded against in such criminal proceedings. Now the crime is at the stage of investigation, it cannot be considered as a pending criminal proceeding before a court of law. When that be the case, there can be no doubt the authority under the Passports Act, subject to satisfaction of one or the other conditions covered under Section 10 of the Passports Act, alone can pass an order for impounding the document - passport. When that be the case, more so, in view of the interdiction covered by the Passports Act, 1967, and, especially in the backdrop of the categorical and unequivocal interpretation to be placed over the provisions of the Act with respect to the impounding of passport by the Apex Court in Suresh Nanda's case, cited supra, it goes without saying that Annexure-C order passed by the Special Judge on the application moved by the C.B.I to impound the passport of the petitioner cannot be sustained. So far as the restrictions to be imposed **Crl.M.C.No.1390/2012** **7** against the petitioner as to his leaving the country, it is open to the C.B.I to take appropriate steps as provided by law, to have his continued presence to facilitate the investigation and for its completion. Setting aside of Annexure-C order will not preclude the C.B.I in moving the passport authority for passing of appropriate orders for retention of the passport, if so provided by law. Crl.M.C. is disposed of. ## **S.S.SATHEESACHANDRAN JUDGE** prp