Kuwait Airways Corporation v Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **FRIDAY, THE 20TH DAY OF DECEMBER 2013/29TH AGRAHAYANA, 1935** ## **WP(C).No. 30585 of 2013 (W)** **----------------------------** **PETITIONER(S): -----------------------** **KUWAIT AIRWAYS CORPORATION, 39/6823, POLACHIRACKAL MANSIONS, RAVIPURAM, M.G. ROAD, COCHIN-682 015, REPRESENTED BY ITS SALES MANAGER MR. RONY DOMINIC THOMAS.** ## **BY ADV. SRI.M.SREEKUMAR.** **RESPONDENT(S): -------------------------** ## **1. UNION OF INDIA,** **REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-AFFAIRS DEPARTMENT, MINISTRY OF HOME AFFAIRS, 4TH FLOOR, NDCC-II BUILDING, JAI SINGH ROAD, NEW DELHI-110 001.** **2. JOINT SECRETARY (FOREIGNERS), MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, 4TH FLOOR, NDCC-II BUILDING, JAI SINGH ROAD, NEW DELHI-110 001.** **3. FOREIGNERS REGIONAL REGISTRATION OFFICER AND CIVIL AUTHORITY, BUREAU OF IMMIGRATION, COCHIN-682 018.** **BY ADV. SRI.P.PARAMESWARAN NAIR, A.S.G. OF INDIA. ADV. SRI.T.SANJAY, CGC.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18-12-2013, THE COURT ON 20-12-2013 DELIVERED THE FOLLOWING:** **rs.** ## **WP(C).No. 30585 of 2013 (W)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **P1. TRUE COPY OF NOTICE NO.1/CL ACT/BOI(CAP)/2013-2073 DATED 10-09-2013 ISSUED BY 3RD RESPONDENT TO PETITIONER.** - **P2. TRUE COPY OF THE ORDER NO. 21/CL ACT/BOI/(CAP) 71/2013-2208 DATED 26-09-2013 OF THE 3RD RESPONDENT.** - **P3. TRUE COPY OF APPEAL FILED BY PETITIONER BEFORE THE 2ND RESPONDENT DATED 07-10-2013 WITHOUT ANNEXURES.** - **P4. TRUE COPY OF THE ORDER NO. 25106/114/2012-IMM. DATED 13-11-2013 OF THE 2ND RESPONDENT.** **RESPONDENT'S EXHIBITS:NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** **rs.** **(CR)** ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. ## **W.P.(C)No.30585 OF 2013** ......................................................................... **Dated this the 20[th] December, 2013** ## **J U D G M E N T** Correctness and sustainability of Exts.P2and P4 passed by the third and second respondents respectively, imposing punishment upon the petitioner/Kuwait Airways Corporation, under Section 3 of the Immigration (Carriers Liability) Act 2000 read with the relevant Rules of the Passport (Entry into India) Rules 1950 is under challenge in this writ petition. 2. The case of the petitioner is that, they happened to carry a passenger by name Mohammed K.H.M.S.Al Mutari, who is a Kuwaiti national, having boarded Flight No.KU351 on 05.09.2013 from Kuwait International Airport. The Flight arrived at Kochi in the early morning on 06.09.2013. Admittedly the 'visa' of the said passenger had expired on 04.09.2013. It is contended that, it was only by virtue of an inadvertent mistake/error occurred on the part of the checking staff at the Kuwait International Airport, that the concerned passenger came to be carried in the Aircraft. 3. In the course of further proceedings, the petitioner was served with Ext.P1 notice dated 10.09.2013 by the third **2** ## **W.P.(C)No.30585 OF 2013** respondent /Foreigners Regional Registration Officer, in response to which, the petitioner submitted a detailed explanation. However, without considering the same in the proper perspective, the third respondent passed Ext.P2 order dated 26.09.2013, whereby the offence was held as made out and a penalty of Rs. One lakh was imposed upon the petitioner under Section 3 of the Immigration(Carriers Liability) Act. 4. Being aggrieved of the said order, the petitioner filed Ext.P3 appeal before the second respondent/Joint Secretary (Foreigners) pointing out the facts and figures. After considering the same, the said appeal was dismissed by the second respondent vide Ext.P4 order, which in turn is under challenge in this writ petition. 5. A detailed statement has been filed on behalf of the third respondent/Foreigners Regional Registration Officer and Civil Authority pointing out that the writ petition is not maintainable either on facts or in law. The order is sought to be sustained with reference to the relevant provisions of law and also the undisputed factual position. The stand adopted is discernible from **3** ## **W.P.(C)No.30585 OF 2013** ## paragraphs 7 and 8, which are reproduced below. _“7. It is humbly submitted that a counter officer of the Bol who_ _**detect** a foreigner being brought by a carrier in violating Rule 3(a), 3(b) and 6(c) of the Entry into India Rules, 1950, would scrutinize his document and refer his case to the wing in charge, who then will further scrutinize the documents and after satisfying himself that the matter attracts the penalty under the Immigration (Carriers Liability) Act, 2000, shall report the matter to the shift in charge and summon the Airline staff to remain present. The AFRRO (Shift) shall then issue a notice under para 6 of the Foreigner Order 1948 to the Station Manager of the concerned airlines, quoting the violation and seeking the removal of the passenger by the same flight or the first available flight if as being which the airlines would be liable to face action under Foreigners Act, 1946. An entry Refusal form also would be served on the passenger. This would be followed by the issue of a notice under Section 3 of the Immigration (CL)Act, 2000 as the carrier by the AFRRO Shift, following by a similar notice to the station manager by the FRRO, which would also mention a date on which a hearing would_ **4** ## **W.P.(C)No.30585 OF 2013** _be held giving an opportunity the carrier to put forward their arguments. During the course of the hearing, the FRRO would either waive the penalty if he feels that the carrier has any genuine grounds, or he may charges rupees one lakh penalty on the carrier if he feels that they have no grounds for converting and it was a clear case of violation. In such instances, an order issued on the carrier, asking it to pay the penalty within a specific time frame._ _8. In this particular instance, all these formalities were complied with Kuwait Airways. The petitioner Airline brought a passenger named Mohammed KHMS Al Mutari, a Kuwaiti national holding passport No.003025681. He arrived in Kochi Airport by flight No.KU.351, on 06/09/2013. Since his single entry tourist Visa No.AP 4761385 was only valid from 05/06/2013 to 04/09/2013, he was refused entry and notice under Para 6 of the foreigners order 1948 was issued to Kuwait Airways, followed by a notice under Section 3 of Immigration ( Carrier Liability) Act, 2000 on the carrier on the same date itself. Subsequently, another notice, Ext.P1 was also sent. It can thus be seen that the procedures and formalities had been followed_ **5** ## **W.P.(C)No.30585 OF 2013** _in letter and spirit in this case and the penalty was imposed on genuine ground only, which was affirmed by the order issued by the Joint Secretary, , Ministry of Home Affairs. ”._ . 6. It is stated that all the relevant formalities have been complied with in the case of the petitioner. It is stated that since implementation of the Immigration (Carrier Liability)Act 2000 at Cochin in November, 2012, a total of 86 cases have been booked against 14 Airlines operating in Cochin International Airport on similar grounds and that, the respondents have waived penalty in appropriate cases, wherein it was felt that the Carrier had genuine grounds. It is also pointed that in the case of the petitioner herein, such instances/violations were noted on 'five' times, out of which, waiver was given in respect of 3 cases, by the third respondent. In one case, punishment imposed by ordering penalty of Rs.One Lakh was satisfied by the petitioner and it is in respect of the subsequent instance, that the petitioner has come up before this Court challenging Exts.P2 and P4. This being the position , the version of the petitioner that the mistake was an inadvertent **6** ## **W.P.(C)No.30585 OF 2013** one and that, this is for the first time that such an incident has happened, is stated as far from the track of truth. 7. Heard the learned Counsel for the petitioner as well as the learned Central Government Counsel at length. Altogether four different grounds are raised in the writ petition. Ground 'A' mentions that Ext.P1 notice was issued to the petitioner allegedly in contravention of 'Rule 1(a)' of Passport (Entry into India)Rules and that there is no such rule to have proceeded against the petitioner. It is also stated that the Rules only contemplate violation, if at all any, on the part of the passenger and that no liability can be mulcted upon the Carrier in this regard. This however, appears to be contrary to the admission made by the petitioner in the second sentence of Ground 'A' of the writ petition, wherein it is conceded that Section 3 of Immigration (Carriers Liability)Act, 2000 can be invoked only when any of the provisions of Passport (Entry into India) Act 1920 or Rules made thereunder, are violated. 8. Section 3 of the Immigration (Carriers Liability)Act, 2000 reads as follows: **7** ## **W.P.(C)No.30585 OF 2013** _“3. Liability of carriers for passengers brought into India:- Where the competent authority is of the opinion that any carrier has brought a person in contravention of the provisions of the Passport (Entry into India) Act, 1920 (34 of 1920) and rules made thereunder into India, he may by order impose a penalty of rupees one lakh on such carrier;_ _Provided that no order shall be passed without giving the carrier an opportunity of being heard in the matter._ Rule 3 (a) of the passport (Entry into India)Rules, 1950 reads as follows: _“ Save as provided in Rule 4, no person proceeding from any place outside India shall enter, or attempt to enter India by water, land or air.._ _(a) unless he is in possession of a valid passport conforming to the conditions prescribed in rule 5, and_ _(b) xxxxxxxxxxx”_ 9. It is with reference to the said Rules that the proceedings have been finalised as per Exts.P2 and P4 orders and **8** ## **W.P.(C)No.30585 OF 2013** that the only mistake committed by the respondents is that, they made a reference to 'Rule 1(a)' in Ext.P1, which can only be a typographical error. Merely for the reason that a wrong rule has been mentioned, it will not vitiate the entire proceedings; more so in view of the law declared by the Apex Court in _**State of Karnataka vs. Muniyalla**_ **[1985] 1 SCC 196]** 10. Another important aspect to be noted is that, the writ petition moulded by the petitioner with reference to the alleged mistake in Rule 1(a) as raised in Ground 'A' of the writ petition is conspicuously absent in Ext. P3 appeal filed before the appellate authority. Admittedly, there was no obscurity, confusion or ambiguity in the minds of the petitioner, when the petitioner sought to challenge Ext. P2 order by filing Ext.P3 appeal and the factual position that a passenger without 'visa' was carried, stands not disputed. This being the position, reference made to the said mistake in the 'show cause notice', as projected in the writ petition, is only an afterthought, which hence is devoid of any pith or substance. 11. In Ground B, the petitioner contends that Section 3 of **9** ## **W.P.(C)No.30585 OF 2013** Immigration (Carriers Liability) Act 2000 says that, when the competent authority forms an opinion that any Carrier has brought a person in contravention of the provisions of the Passport (Entry into India) Act, 1920 and the Rules framed thereunder, a penalty of Rs.1 lakh can be imposed. It is stated that the third respondent did not have a case that the petitioner 'purposefully' or 'intentionally' allowed a passenger to travel without any valid visa and the specific contention of the petitioner that expiry of 'visa' of the passenger could not be noticed due to an inadvertent error and the plea that there was no 'intention' on the part of the petitioner, has not been considered properly. 12. On going through the relevant provisions of the Act and Rules, it is seen that the law does not contemplate any 'intention' to be attributed as to the offence involved. This is more so, in view of the necessity to maintain utmost security with regard to operation of Flights and in more particular, international flights, on these days, because of threats from various corners including militants. It was very much obligatory on the part of the Carrier to have verified all the relevant **10** ## **W.P.(C)No.30585 OF 2013** proceedings/travel documents before any passenger was permitted to travel. The 'motive' or 'intention' is immaterial in such cases and as such, this Court does not find any merit in the said contention. 13. In Ground 'C', the petitioner contends that the impugned order passed by the appellate authority is not a 'speaking order', while rejecting the appeal. The said proposition is not attractive to this Court. It was after considering the contents of Ext.P2 order and the relevant records, that the appellate authority considered the issue and arrived at a finding with reference to the relevant provisions of law, thus passing Ext.P4 order. Each and every sentence of the original order need not be reproduced by the appellate authority while dealing with the appeal and it is sufficient, if the issue is dealt with proper and correct understanding, leading to the inference, supported by reasons. This requirement has been satisfied by the second respondent while passing Ext.P4 order and as such, this Ground also does not come to the rescue of the petitioner. 14 . The last Ground,. i.e. Ground D is that the 'fine' **11** ## **W.P.(C)No.30585 OF 2013** imposed is exorbitant and disproportionate. As mentioned hereinbefore, the third respondent/Foreigners Regional Registration Officer and Civil Authority has filed a statement wherein, it has been categorically asserted in 'paragraph 11' that the petitioner has been booked by the respondents nearly 'five' times and that in three cases, penalty has been waived considering the grounds stated by the petitioner as genuine. In another case, the matter was considered and penalty of Rs.One lakh was imposed, which is stated as satisfied and as such, this is not the first instance. Hence this Court does not consider the punishment imposed as disproportionate to the gravity of the proven offence. In the above circumstance, this Court finds that the writ petition is absolutely devoid of any merit or bonafides. Interference is declined and the writ petition is dismissed. ## **P.R.RAMACHANDRA MENON JUDGE** lk