Mr.A.Mishra and Mr.Nidhish Gupta, Advocates v. UNION OF INDIA & ANR. .....

1. The present petition under section 482 Cr.P.C. has been filed with the following prayers: “a. Allow the present petition and quash the impugned bail condition no. 8 (iii) imposed vide order dated 17.12.2016 passed by Ld. Special Judge, Patiala House Court, New Delhi, whereby the Petitioner was directed to surrender its passport; b. Quash the orders dated 22.02.2021, 09.03.2021 & 28.07.2021 passed by the Ld. Courts, Patiala House Courts, New Delhi, in Bail Application no. 17332/2016, whereby the applications seeking permanent release of passport was dismissed; c. Direct the Respondent No. 2 or the concerned court, where the Petitioner's bearing no. K9542194 is lying, to release the same in favour of the Petitioner; d. Hold and declare that the Ld. CMM, Patiala House Court, New Delhi or the Respondent No. 2 is not the proper authority to withhold the passport of the Petitioner;”

2. Learned counsel for the petitioner submits that the passport of the petitioner is being detained by the learned trial court without any authority and in contravention of the law.

3. Learned counsel submits that while regular granting bail to the petitioner vide order dated 17.12.2016, learned trial court inter alia imposed the condition that the petitioner shall surrender his passport, if any. Pursuant to this direction, the petitioner surrendered his passport bearing no. K9542194 and since then it is lying in the possession of the learned trial court. Learned counsel submits that withholding the passport of the petitioner is not tenable under law as it amounts to impounding of the passport which is not permissible under the law except under the proceedings under The Passports Act, 1967.

4. Learned counsel submits that thereafter, while the matter rested thus the petitioner had filed W.P.(C) No. 6402/2021 against the imposition of the penalty in view of the judgment of the Supreme Court dated 09.03.2021 in M/s Cannon India Pvt. Ltd. vs. Commissioner of Customs, Civil Appeal No. 1827/2018 and in the said writ petition also an application was moved for release of the passport which was later on withdrawn. Learned counsel for the petitioner has also stated that as of date no complaint has been filed by the department. Learned counsel for the petitioner has submitted that by withholding the passport of the petitioner, the department has in fact imposed a restriction on the fundamental right and the right to personal liberty of the petitioner. Reliance has been placed on Satwant Singh vs. Asst. Passport Officer (1967) 3 SCR 525 and Maneka Gandhi vs. Union of India (1978) 1 SCC 248. Learned counsel has also relied upon the judgement in Suresh Nanda vs. CBI (2008) 3 SCC 674 wherein it was inter alia held that the retaining of the passport by the police authorities beyond a period of four weeks would amount to impounding of the passport, which power the said authority lacks. Learned counsel submits that it was further inter alia held that neither the police nor the court invoking the powers under Section 102 or 104 Cr.P.C. can seize or impound a passport. Reliance has also been placed upon the judgement in Praveen Surendiran vs. State of Karnataka and Anr. Criminal Petition NO. 1892/2022 wherein it was inter alia held as under:

5. Mr. Harpreet Singh, learned counsel for the Department has opposed the petition on the ground that the show cause notice was issued dated 29.04.2019 by the DRI Headquarters to M/s Ribs Exim Consultants Private Limited and its director Sh. Lalit Kumar Babu Lal Tatter @ Lalit Jain. It has been submitted that there was a duty demand of Rs.106.85 crores. It has further been submitted that the adjudicating authority has also confirmed the duty demand of Rs. 106.85 crores and has also imposed a penalty of Rs.107.15 crores on M/s Ribs Exim Consultants Private Limited and Rs. 10.15 crores on Sh. Lalit Kumar Babu Lal Tatter @ Lalit Jain under Sections 112 and 114 of the Customs Act, 1962. Learned counsel has further submitted that the petitioner has not deposited any penalty and has rather challenged the same in the writ proceedings. It has further been submitted by the learned counsel that the department is in the process of filing the complaint against the petitioner. Learned counsel submits that in fact the present case is not of seizure or impounding of the passport. It has been submitted that in fact the petitioner himself has surrendered his passport to the court pursuant to the order of the court to avail his liberty i.e. bail. Reliance has been placed upon Shri. Prem Kumar vs. State (Crl. R.C.Nos.104 and 105 of 2018) dated 20.02.2018. Learned counsel for the department submits that if the passport of the petitioner is released there is a flight risk and the petitioner may not be available for facing the prosecution.

6. I have considered the submissions.

7. I consider it is a settled proposition that the passport can only be impounded under Section 10 of The Passports Act, 1967. In the judgments quoted hereinabove, it has repeatedly been held that except for the proceedings under The Passports Act, the police, court or the department cannot impound the passport. In any case, no purpose will be served by allowing the trial court to retain the passport on its record. The passport except for the travel purpose is required for many other purposes i.e. for the purpose of identification etc.

8. Hence, I consider that the condition of the trial court imposed vide order dated 17.12.2016 is liable to be modified and the passport be released to the petitioner after retaining a copy of the same by the learned Trial Court. It is pertinent to mention here that in the bail order there is already a condition that the petitioner/applicant shall not leave the country without prior permission of the court.

9. With the above directions, the petition along with all the pending applications is disposed of.

10. Copy of the order be given dasti under signatures of the Court Master.

DINESH KUMAR SHARMA, J MARCH 13, 2023