Niyas Abdul Khareem v. Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **MONDAY, THE 6TH DAY OF JUNE 2016/16TH JYAISHTA, 1938** **WP(C).No. 15785 of 2016 (W)** **----------------------------** **PETITIONER(S): -------------** **NIYAS ABDUL KHAREEM S/O. ABDUL KARIM, AGED 36 YEARS, HAVING PERMANENT RESIDENCE AT "NIYAS MANZIL", CHAVARA POST, KOLLAM DISTRICT.** **BY ADV. SRI.P.V.VENUGOPAL** **RESPONDENT(S):** **--------------** **1.UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF EXTERNAL AFFAIRS, NEW DELHI, PIN-110 001.** **2.THE JOINT SECRETARY (PSP) & CHIEF PASSPORT OFFICER CPV DIVISION, PATIALA HOUSE ANNEXE, TILAK MARG, NEW DELHI, PIN-110 001.** **3.THE REGIONAL PASSPORT OFFICER, PASSPORT OFFICE, THIRUVANANTHAPURAM, PIN-695 001.** **BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-05-2016, THE COURT ON 06-06-2016 DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 15785 of 2016 (W)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** ## **-----------------------** - **P1 : COPY OF RENEWED INDIAN PASSPORT BEARING NO.J 7473452 DTD.24.4.2021 IN FAVOUR OF PETITIONER ISSUED THROUGH THE INDIAN ATTACHE MALDIVES.** - **P2 : COPY OF JUDGMENT IN WPC NO.5134/2016 DTD.11.2.2016 BY THIS HON'BLE HIGH COURT.** - **P3 : COPY OF ORDER DISMISSING RELEASE TO THE PETITIONER IN APPEAL UNDER 11 OF PASSPORT ACT BEARING NO.VIII/402/APP-01/2016 DTD.4.3.2016.** - **P4 : COPY OF NOTICE DTD.2.1.2015 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **P5 : COPY OF GSR 570E DTD.21.8.14 ISSUED BY THE 1ST RESPONDENT.** - **P6 : COPY OF ORDER IN CRL.MP NO.1783/2013 DTD.22.6.2013 ALLOWING RELEASE VIDE ENLARGEMENT IN BAIL BY HON'BLE SESSIONS JUDGE, KOLLAM.** - **P7 : COPY OF FIR IN CRIME 55/2014 OF KOLLAM WEST POLICE U/S.354,385,294(B),506(II) R/W 34 IPC DTD.15.1.2014.** - **P8 : COPY OF ORDER IN CRL.MP NO.621/2014 DTD.12.3.2014 BY HON'BLE SESSIONS JUDGE, KOLLAM.** - **P9 : COPY OF ORDER/NOTICE DTD.9.12.2015 ISSUED BY THE 2ND RESPONDENT.** **RESPONDENT(S)' EXHIBITS & ANNEXURES: ------------------------------------** **ANNEXURE R1(A) : TRUE COPY OF THE POLICE VERIFICATION REPORT.** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **W.P.(C) No.15785 of 2016** ## **-----------------------------------------------** ## **Dated 6[th] June, 2016.** ## **J U D G M E N T** The petitioner is a citizen of India. He was working in Maldives. The term of his passport expired while he was in Maldives. The petitioner, therefore, applied for re-issue of his passport at the High Commission of India at Maldives. On the said application, the petitioner was issued a new passport on 25.4.2011. Later, the third respondent, the Regional Passport Officer, Thiruvananthapuram received a letter from the wife of the petitioner stating that the petitioner is an accused in three criminal cases and that therefore, his passport is liable to be impounded. On the said letter of the wife of the petitioner, the Passport Officer called for remarks from the concerned police officers and it was found that the petitioner is accused in three cases. Consequently, a notice was issued to the petitioner directing him to show cause why his passport shall not be WPC No.15785/16 2 impounded. Ext.P4 is the show cause notice. It is alleged in Ext.P4 that the petitioner had suppressed material information in the application for reissue of passport. It is also alleged that the petitioner's passport is liable to be impounded under Section 10(3)(e) of the Passports Act ('the Act' for short). The petitioner has submitted a reply to Ext.P4 show cause notice contending mainly that he has not suppressed any material facts in his application for re-issue of passport. According to him, criminal cases were registered against him only after the re-issue of the passport. As per Ext.P9, the Passport Officer rejected the explanation offered by the petitioner and ordered to impound the passport of the petitioner under Section 10(3) (e) of the Act. The petitioner preferred an appeal challenging Ext.P9 order contending that he has not suppressed any material facts in the matter of getting his passport reissued. The appeal preferred by the petitioner has been rejected by the appellate authority as per Ext.P3 order. In Ext.P3, it is stated, among others, that since it is admitted that there are criminal cases against the petitioner, the action of the Passport Officer WPC No.15785/16 3 in impounding the passport of the petitioner under Section 10 (3)(e) of the Act is in order. It was, however, made clear in Ext.P3 order by the appellate authority that the petitioner is free to approach the concerned criminal courts and if the petitioner is able to obtain permission from the said courts to go abroad, he will be issued a fresh passport. The petitioner is aggrieved by Ext.P3 order. 2. A statement has been filed on behalf of the respondents. In the statement, it is contended, among others, that since criminal cases are admittedly pending against the petitioner, the Passport Officer has got the power to impound the passport issued to the petitioner. 3. Heard the learned counsel for the petitioner as also the learned Assistant Solicitor General. 4. The learned counsel for the petitioner reiterated the contention raised by the petitioner in the appeal preferred against Ext.P9 order that all the criminal cases referred to in the complaint lodged by his wife are cases registered long after the reissue of the passport and that therefore, Ext.P9 order issued WPC No.15785/16 4 by the Passport Officer impounding his passport is illegal. 5. As indicated above, Ext.P4 is the show cause notice issued to the petitioner prior to Ext.P9 order. Ext.P4 contains two parts. In the first part, it is alleged that the petitioner has suppressed material information in the application for reissue of passport. In the second part, it is alleged that the passport of the petitioner is liable to be impounded under Section 10(3)(e) of the Act. It is thus evident that proceedings for impounding of the passport of the petitioner was initiated not only on the ground that he has suppressed material facts for getting his passport reissued, but also on the ground that his passport is liable to be impounded under Section 10(3)(e) of the Act. Section 10 of the Act reads thus : 10. Variation, impounding and revocation of passports and travel documents : (1) The passport authority may, having regard to the provisions of sub-section (1) of section 6 or any notification under section 19, vary or cancel the endorsements on a passport or travel document or may, with the previous approval of the Central Government, vary or cancel the conditions (other than the WPC No.15785/16 5 prescribed conditions) subject to which a passport or travel document has been issued and may, for that purpose, require the holder of a passport or a travel document, by notice in writing, to deliver up the passport or travel document to it within such time as may be specified in the notice and the holder shall comply with such notice. (2) The passport authority may, on the application of the holder of a passport or a travel document, and with the previous approval of the Central Government also vary or cancel the conditions (other than the prescribed conditions) of the passport or travel document (3) The passport authority may impound or cause to be impounded or revoke a passport or travel document,- (a) if the passport authority is satisfied that the holder of the passport or travel document is in wrongful possession thereof; (b) if the passport or travel document was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the passport or travel document or any other person on his behalf. [Provided that if the holder of such passport obtains another passport, the passport authority shall also impound or cause to be impounded or revoke such other passport.] (c) if the passport authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public; (d) if the holder of the passport or travel document has, at any time after the issue of the passport or travel document, been convicted by a Court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for WPC No.15785/16 6 not less than two years; (e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a Criminal Court in India; (f) if any of the conditions of the passport or travel document has been contravened; (g) if the holder of the passport or travel document has failed to comply with a notice under sub-section (1) requiring him to deliver up the same; (h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a Court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such Court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made. (4) The passport authority may also revoke a passport or travel document on the application of the holder thereof. (5) Where the passport authority makes an order varying or cancelling the endorsements on, or varying the conditions of, a passport or travel document under sub-section (1) or an order impounding or revoking a passport or travel document under subsection (3) it shall record in writing a brief statement of the reasons for making such order and furnish to the holder of the passport or travel document on demand a copy of the same unless in any case, the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public to furnish WPC No.15785/16 7 such a copy. (6) The authority to whom the passport authority is subordinate may, by order in writing, impound or cause to be impounded or revoke a passport or travel document on any ground on which it may be impounded or revoked by the passport authority and the foregoing provisions of this section shall, as far as may be, apply in relation to the impounding or revocation of a passport or travel document by such authority. (7) A Court convicting the holder of a passport or travel document of any offence under this Act or the rules made thereunder may also revoke the passport or travel document: Provided that if the conviction is set aside on appeal or otherwise the revocation shall become void. (8) An order of revocation under sub-section (7) may also be made by an appellate Court or by the High Court when exercising its powers of revision. (9) On the revocation of a passport or travel document under this section the holder thereof shall, without delay, surrender the passport or travel document, if the same has not already been impounded, to the authority by whom it has been revoked or to such other authority as may be specified in this behalf in the order of revocation. A reading of Section 10 indicates that it deals with variation, impounding and revocation of passports and travel documents. There are nine sub-sections in Section 10, of which Sub-sections WPC No.15785/16 8 (3) and (4) deal with the power of the passport authority to impound and revoke passports and travel documents. A plane reading of clause (e) of sub-section (3) of Section 10 indicates that if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India, the passport authority may impound or cause to be impounded or revoke the passport or travel document. It is beyond dispute that criminal proceedings are pending against the petitioner before criminal courts in India. As such, impounding of the passport of the petitioner is perfectly in order. 6. The learned counsel for the petitioner, relying on an unreported decision of the Delhi High Court in **Shailender Kumar Jain v. Union of India and another** (CWP No.4536/2003) contended that the issue raised by the petitioner in this writ petition is covered in his favour by the said judgment. It is seen that what was challenged before the Delhi High Court in the said case was a show cause notice issued to the petitioner therein before impounding his passport WPC No.15785/16 9 invoking clause (h) of sub-section (3) of Section 10 of the Act. The said clause can be invoked for impounding of a passport if it is brought to the notice of the passport authorities that a warrant or summons for the appearance or a warrant for the arrest of the holder of the passport has been issued by a court under law for the time being in force. In that case, it was found that though a case was registered against the petitioner therein under Section 498A and Section 306 of the Indian Penal Code, nothing was brought on record to indicate that the cognizance of the said offence was taken by the court by issuing summons or warrant to the accused. In the said circumstances, it was held that the proceedings contemplated against the petitioner therein was premature. The said decision, according to me, has no application to the facts of the present case. 7. There is, therefore, no merit in the writ petition and the same is, accordingly dismissed. It is, however, made clear that the petitioner is free to approach the criminal courts concerned and obtain permission to go abroad and if the petitioner obtains permission from the criminal courts to go WPC No.15785/16 10 abroad, the respondents shall consider his request for reissue of the passport. Sd/- **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)