Shirin Shahana v Union of India and others; Sihas Attapurath v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **MONDAY, THE 22[ND] DAY OF AUGUST 2022 / 31ST SRAVANA, 1944** ## **WP(C) NO. 19210 OF 2022** ## **PETITIONER/S:** SHIRIN SHAHANA AGED 27 YEARS W/O. FASAL MUSTHAFA, CHITTARAPARAMB, KANNUR DISTRICT, PIN - 670650. BY ADV SHIRAS ALIYAR ## **RESPONDENT/S:** 1 UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF EXTERNAL AFFAIRS, PARLIAMENT STREET, NEW DELHI, PIN - 110001. 2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001. 3 THE REGIONAL PASSPORT OFFICER, OFFICE OF THE REGIONAL PASSPORT OFFICER, ERANHIPALAM P.O, KOZHIKODE, PIN - 673006. 4 THE ASSISTANT DIRECTOR, BUREAU OF IMMIGRATION, COCHIN INDIAN NATIONAL AIRPORT, NEDUMBASSERY, ERNAKULAM DISTRICT, PIN - 683111. BY ADV MANU S., ASG OF INDIA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.08.2022, ALONG WITH WP(C).24337/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 19210 OF 2022 and WP(C) NO. 24337 OF 2022** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 22[ND] DAY OF AUGUST 2022 / 31ST SRAVANA, 1944 WP(C) NO. 24337 OF 2022** ## **PETITIONER/S:** SIHAS ATTAPURATH AGED 33 YEARS SON OF ALU ATTU PURATH, PALAKKAL HOUSE, KUNNAMANGAAM PO, KOZHIKODE - PIN - 673571 BY ADVS. PRAVEEN.H. K.S.SMITHA T.T.SHANIBA AMAL DEV D ## **RESPONDENT/S:** 1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF EXTERNAL AFFAIRS ADDRESS: ROOM NO. 1024, JAWAHAR LAL NEHRU BHAWAN, 23-D, JANPATH, NEW DELHI, PIN - 110002 2 THE PASSPORT OFFICER REGIONAL PASSPORT OFFICE, BYPASS ROAD NEAR CO- OPERATIVE HOSPITAL ERANHIPPALAM P.O, KOZHIKODE - , PIN - 673006 3 THE ASSISTANT FOREIGNERS REGIONAL REGISTRATION OFFICER BUREAU OF IMMIGRATION, T.C. 30/1398-3, FIRST FLOOR, AMRITH PLAZA, NALUMUKKU, PETTAH P.O., THIRUVANANTHAPURAM-, PIN - 695024 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.08.2022, ALONG WITH WP(C).19210/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 19210 OF 2022 and WP(C) NO. 24337 OF 2022** **3** ## **JUDGMENT** This order of mine shall dispose of two writ petitions W.P.(C) No.19210 of 2022 titled as Shirin Shahana v. Union of India and others (hereinafter called 'first writ petition') and W.P.(C) No.24337 of 2022 titled as Shihas Attapurath v. Union of India and others (hereinafter called 'second writ petition') wherein the following reliefs have been granted: W.P.(C) No.19210 of 2022: _Issue a writ of mandamus or any other appropriate writ, order or direction, directing the 3[rd] and 4[th] respondents to release passport No.L8574999, which was seized vide Exhibit P1 Seizure Letter, to the petitioner, within a time frame fixed by this Hon'ble Court._ W.P.(C) No.19210 of 2022: _i. Issue a writ of mandamus or any other appropriate writ or order commanding the 2[nd] respondent to finalize the proceedings pursuant to Exhibit P1 expeditiously after affording an opportunity of being heard to the petitioner._ ii. _Issue a writ of mandamus or any other appropriate writ or order commanding the 2[nd] respondent to finalize the proceedings pursuant to Exhibit P1 expeditiously after affording an opportunity of being heard to the petitioner._ 2. The grievance of the petitioners in both the writ petitions is that for reaching India while traveling through Yemen owing to the circumstances which would be explained later on, their passports have been seized by the Bureau of Immigration owing to the ban on **WP(C) NO. 19210 OF 2022 and WP(C) NO. 24337 OF 2022** **4** travel to Yemen issued vide notification dated 26.9.2017 by the Ministry of External Affairs. 3. In the first writ petition, the petitioner, who is the wife of Sri. Fasal Musthafa had gone to Yemen from Saudi Arabia, where her husband was working. She was totally unaware of the travel ban to the said country as there was no ban to travel from Saudi Arabia to Yemen. At present her husband is in Indonesia and she wanted to settle with her husband but owing to the travel ban and seizure of the passport, petitioner is unable to travel. 4. In the second writ petition, the petitioner had also been working in Saudi Arabia and after the outbreak of corona virus, the employer of the petitioner stopped paying him salary and the petitioner was expolited and treated with utmost cruelty. So the Petitioner travelled to Yemen on 14.10.2021 and then Sudan on 15.10.2021 and from Sudan to Sharjah and then from Sharjah to Thiruvananthapuram and reached the Thiruvananthapuram on 16.10.2021 where his passport bearing No.S3146769 was seized on 16.10.2021. 5. The contention of both the petitioners is that the seizure had been on the basis of the notification dated 26.9.2017. This court noticing the contention, called upon the counsel representing the **WP(C) NO. 19210 OF 2022 and WP(C) NO. 24337 OF 2022** **5** Union of India and obtained instructions. 6. Learned Counsel appearing for the ASGI informed that as per the latest instructions dated 18.8.2022 issued by the Ministry of External Affairs addressed to Regional Passport Officer, Kozhikode the imposition of a travel ban to Yemen as per the notification of 2017, ibid, still remains intact. The contents of the information reads thus: _Please refer to your E-mail message dated 17 August, 2022 on the above subject, the following information is hereby conveyed for filling counter-affidavit in the said case: (i) The Notification S.O. 3223(E) issued on 26th September 2017, by the Ministry is based on the adverse security situation in Yemen. It is informed that travel ban will be reviewed once security situation improves in Yemen widely and sustainably._ _(ii) Para 3 of the Notification S.O. 3223(E) issued on 26th September 2017, states that the directions of the notification may be relaxed by the Central Government for specific and essential reasons of travel, for which permission for a limited time period may be granted by the Central Government at the express request of the appliant who would, nevertheless, travel at his or her own personal risk without any liability to the Government of India or any State Government concerned and any such request for exemption may be sent to jsgulf@mea.gov.in._ _(iii) The Security Situation in Yemen is still fragile/adverse. According to the UN annual report on Yemen 2021 there is a plethora of armed actors in Yemen including the Government of Yemen supported by the Saudi-led Coalition, the Southern Transitional Council and non-state armed groups. The same report also Stated that "conflict itensified in Ma'rib, Al Jawf. Al Bayda, Shabwa Taiz, and Hodeidah governorates, as well as in Hajjah. Ad Dali, Taiz City, and surrounding areas" and that "these areas are expected to remain hotspots in 2022. In early 2022, the Houthis launched some missile attacks in UAE. In one such strike by the Houthis on Abu Phab, two Indians got kilied on January 17, 2022._ **WP(C) NO. 19210 OF 2022 and WP(C) NO. 24337 OF 2022** **6** _Further, Seven Indians were detained by the Houthis on January 2, 2022 as they were working on a UAE flagged ship Rwabee, which the Houthis claimed was carryng "military equipment". The Indian crew members along with four other nationalities remained in the Houthi detention for several months. They were released only on April 24, 2022._ _Most major countries continue to advise their nationals to not visit Yemen. For instance, the US Department of State has raised the travel advisory to Yemen to level 4, the highest, "Do not travel' in its latest travel advisory dated April 18, 2022. UKs Foreign. Commonwealth & Development Office has also advised its citizens against all travel to Yemen including mainland and all islands and has told them to leave immediately if they are in Yemen, in its latest travel advisory updated on May 11, 2022._ _In view of the continued adverse security situation in Yemen, the 2017 Notification of GOI imposing a travel ban to Yemen remains in place. GOI continues to monitor the situation and will review the Notification at an appropriate time when security situation in Yemen improves widely and sustainably._ 7. It is further contended that in case the petitioners make a suitable representation to the department by giving a reasonable explanation of an attenuating circumstances, there can be a consideration of request on individual basis. 8. I have heard the learned counsel for the parties and appraised the paper book. Government of India vide notification dated 26.9.2017, considering the security situation in Yemen to be still fragile/adverse, by virtue of the powers under Section 19 of the Passport Act, 1967 issued a notification making passport and travel documents as invalid for travel to certain countries. The contents of **WP(C) NO. 19210 OF 2022 and WP(C) NO. 24337 OF 2022** **7** ## the notification reads thus: _S.O. 3223(E)-Whereas, the security situation in Yemen continues to be fragile with armed hostilities continuing in parts of the country and Yemen remains vulnerable from the security point of view._ _And whereas, in view of the precarious security situation in Yemen, the Government of India issued various travel Advisories wherein Indian nationals have been strongly advised to avoid travelling to that country under any circumstances, by any mode of travel, including air, land or sea for any purpose till further notice,_ _And whereas, despite the existing travel advisories, some Indian nationals have continued to travel to Yemen:_ _And whereas, section 19 of the Passports Act, 1967 (15 of 1967) empowers the Central Government to issue a notification to make invalid the Passports and travel documents for travel to certain countries, and clause (d) of said section provides that upon the issue of the notification by the central government that a foreign country to which travel must be restricted in the public interest because such travel would seriously impair the conduct of foreign affairs of the Government India, and a passport or travel document for travel through or visiting such country shall cease to be valid for such travel or visit unless in any case a special endorsement in that behalf is made in the prescribed form by the prescribed authority._ _Now, therefore, in exercise of the powers conferred by clause (d) of the Section 19 of the passport Act,1967 (15 of 1967), the Central Government, being of the opinion that it is necessary and expedient in the public interest so to do, hereby issues the following directions, namely:_ _i) the passport or travel document issued by the Central Government is invalid for the travel of holder to Yemen as the travel of the holder to Yemen would seriously impair the conduct of foreign affairs of the Government India ii) Any Indian national who travels to Yemen in violation of this notification, shall be liable for action under Section 12 of the said Passports Act, 1967 and the passport shall be liable for impounding or revocation, as the case may be, under subsection 3 of section 10 of the said Act._ **WP(C) NO. 19210 OF 2022 and WP(C) NO. 24337 OF 2022** **8** _iii) violation of the directions, issued by this notification by any holder shall be liable for refusal of passport under section 6 of the said Act for a period of seven years from the date revocation of such passport,_ _iv) Any recruiting Agent or a Company sending Indian nationals to Yemen shall individually or collectively held responsible, and all such Agents or Company, including all Directors, shall personally be liable to be prosecuted under the relevant provisions of the Indian Penal Code, if the Indian nationals so sent are killed or kidnapped or come to any harm, while travelling to Yemen:_ _v) In addition to above, criminal proceedings also may be initiated against owners of the foreign ships carrying Indian nationals to Yemen and visas shall be denied to them for any future travel to India._ _The aforesaid directions are not applicable to the officials of the Government of India posted in the Indian Embassy in Sana by the Ministry of External Affairs for the officials of the Government of India or any State Government travelling to Yemen for attending of their official duties._ _The aforesaid directions may also be relaxed by the Central Government for specific and essential reasons of travel, for which permission for a limited time period may be granted by the Central Government at the express request of the applicant who would, nevertheless, travel at his or her own personal risk without any liability to the Government of India or any State Government concerned and any such request for exemption may be sent to jsgulf@mea.gov.in_ _That the aforesaid directions may read be read in conjunction with any fresh Travel Advisory separately and simultaneously issued by the Indian Embassy in Sana for travel to Yemen._ On perusal of the notification extracted above, it is evident that any Indian national who travels to Yemen in violation of the notification is liable for inaction under Section 12 of the Passport Act, 1967 with an exception that the aforementioned notification would not **WP(C) NO. 19210 OF 2022 and WP(C) NO. 24337 OF 2022** **9** be applicable to the officials of the Government of India posted in the Indian Embassy in Sana by the Ministry of External Affairs and for the officials of the Government of India or any State Government travelling to Yemen for attending their official duties. It is further clarified that the aforementioned direction can be relaxed by the Central Government for specific and essential reasons of travel, for which permission for a limited time period can be granted by the Central Government at the express request of the applicant who would, neverthless, travel at his / her own personal risk without any liability to the Government of India or any State Government concerned. Once the applicability of the aforementioned notification, as per the later instructions dated 18.8.2022 are in intact and Government is empowered to grant exemption and relaxation to the employees to travel would equally have the jurisdiction to entertain the request of the individual person whose passport for reaching India after having travelled to Yemen during the validity of the notification of 2017 to consider the request individually and pass an appropriate order and in case it is found that the travel was inevitable without any mens rea, there would not be any bar for the Central Government to carve out exception. In this view of the matter, in case the petitioners in both the writ petitions make individual **WP(C) NO. 19210 OF 2022 and WP(C) NO. 24337 OF 2022** **10** representations to the Secretary (Gulf), Ministry of External Affairs within a period of one month from the date of receipt of a certified copy of the judgment explaining the hardship and attenuating circumstances of travel, the respondent will decide the same in view of the observations recorded above and in accordance with law within another period of 30 days thereafter. sab **Sd/AMIT RAWAL JUDGE** **WP(C) NO. 19210 OF 2022 and WP(C) NO. 24337 OF 2022** ## **11** ## **APPENDIX OF WP(C) 24337/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PROCEEDINGS NO. 597/AFRRO/TVM-AP/2021 DATED 16/10/2021 OF THE 3RD RESPONDENT Exhibit P2 TRUE COPY OF THE NOTIFICATION NO. S.O.3223(E) DATED 26/9/2017 ISSUED BY THE MINISTRY OF EXTERNAL AFFAIRS Exhibit P3 TRUE COPY OF THE AFFIDAVIT FILED BY THE PETITIONER TO BE SUBMITTED BEFORE THE 2ND RESPONDENT DATED 10/11/2021 ALONG WITH TYPED COPY **WP(C) NO. 19210 OF 2022 and WP(C) NO. 24337 OF 2022** ## **12** ## **APPENDIX OF WP(C) 19210/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SEIZURE LETTER NO. A2.95/2021/PRO/CHN/AP DATED 13.04.2021 ISSUED BY THE 4TH RESPONDENT. Exhibit P2 TRUE COPY OF THE REPRESENTATION DATED 19.04.2021 SENT BY THE PETITIONER TO THE 3RD RESPONDENT. Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED 2.9.2021 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. Exhibit P4 TRUE COPY OF THE REPRESENTATION DATED 14.01.2022 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. Exhibit P5 TRUE COPY OF THE REPLY SENT BY THE 4TH RESPONDENT DATED 14.01.2022. Exhibit P6 TRUE COPY OF THE SAID REPRESENTATION DATED 04.04.2022 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.