Karnataka High Court
Janna Pietari Paasonen vs The State Of Karnataka on 13 August, 2021
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13 T H DAY OF AUGUST, 2021
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION No.100265/2021
BETWEEN:
JANNA PIETARI PA ASONEN,
AGED ABOUT 35 YEARS, OCC: COOK ,
R/O. POSTAE, RES TANTE-00100,
HELSINKI, FINLAN D,
PRESENTLY HARI OM HOTEL,
GOKARNA, TQ. KUMTA,
DIST. UTTARA KANNADA - 581319
...PETITIONER
(BY SRI. SHIVAKUMAR S. BADAWAD AGI, ADVOCAT E)
AND:
THE STATE OF KARNATAKA,
BY GOKARNA POLI CE,
BY SPP HI GH COURT OF KARNATAKA,
DHARWAD - 580011
... RES PONDENT
(SRI. R. RAVINDRA NAIK, HCGP FOR RES PONDENT)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 482 OF CR.P.C., S EEKIN G TO QUASH THE
ORDER DATED 18.06.2020 PAS SED BY THE PRINCIPAL
DISTRICT AND S ESSIONS J UDGE, UTTARA KANNAD A
AT KARWAR IN SPECIA L CASE NO.24/ 2020 THE COPY
OF THE SAME IS PROD UCED AS A T ANNEXURE-C T O
THE PETITION AN D CONSEQUENTLY BE PLEAS ED TO
ALLOW THE APPLI CATION FILED BY THE PETITIONER
UNDER SECTION 457 OF CRIMINAL PROCED URE COD E
2
FOR RELEASE OF ITEM 3- 8 IN SPECIAL CASE
NO.24/ 2020 AND THE COPY OF THE SAME IS
PROD UCED AS AT ANNEXURE-A TO T HE PETITION .
THIS CRIMINAL PETITION COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This petition is filed by the accused seeking to quash the order dated 18.06.2020 passed by the Principal District & Sessions Judge, Uttara Kannada, Karwar, in Special Case No.24/2020, rejecting the application filed by the petitioner under Section 457 of Cr.P.C., for release of item Nos.3 to 8 mentioned in the charge-sheet column No.11.
2. Heard the learned counsel for the petitioner and the learned HCGP for the respondent-State.
3. The charge-sheet is filed against the petitioner/accused for the offences punishable 3 under Sections 80(c), 20(b)(ii)(A) of NDPS Act, 1985. During the investigation, the Investigating Officer has seized item Nos.1 to 8 mentioned at column No.11 of the charge- sheet. The seized items mentioned at Sl.Nos.1 and 2 are charas, item No.3 is Passport and Visa, item No.4 is cash of Rs.5,450/-, item No.5 is Black colour bag-1, item No.6 is Nokia keypad mobile-1, item No.7 is one small torch and item No.8 is light khaki colour purse-1. The petitioner filed application under Section 457 of Cr.P.C., seeking release of item Nos.3 to 8, which are subjected in P.F.No.5/2020 and which are referred to above. The State filed objections. The learned Principal District and Sessions Judge, Uttara Kannada, Karwar, by order dated 18.06.2020 has rejected the said application filed by the petitioner under 4 Section 457 of Cr.P.C. The learned Sessions Judge/Special Judge has rejected this application seeking release of the Passport on the ground that, the petitioner is a foreigner and is permanent resident of Finland State and if the Passport and Visa are released, there are chances of his absconding and jumping bail conditions.
4. Learned counsel for the petitioner placing reliance on the decision of the Hon'ble Apex Court in the case of Suresh Nanda Vs. Central Bureau of Investigation, reported in (2008) 3 SCC 674, has contended that, retaining the seized Passport amounts to impounding which is not permissible under Section 10(3) of the Passports Act, 1967 and it is only the Passport Authority which has power to impound the Passport. He further contended 5 that, the mobile of the petitioner seized contains the Bank transactions and other contact details, which are required by the petitioner for his day to day activities.
5. Per contra, the learned HCGP has contended that, the petitioner is a foreign resident of Finland State and if the Passport and Visa are released, there are chances of his absconding and jumping the bail conditions and hampering the trial.
6. The police have power to seize a Passport under Section 102 of Cr.P.C. Retaining of the Passport seized, amounts to impounding. The passport can only be impounded by the Passport Authority under Section 10(3) of the Passports Act, 1967. If the police intend to impound the passport, they 6 must send it along with a letter to the Passport Authority clearly stating that the seized passport deserves to be impounded for one of the reasons mentioned in Section 10(3) of the Passports Act, 1967. Section 104 of Cr.P.C., states that the Court may, if it thinks fit, impound any document or thing produced. This provision will only enable the Court to impound any document or thing other than a passport. This is because impounding of a 'passport' is provided for in Section 10(3) of the Passports Act. In Suresh Nanda case (supra), the Apex Court has observed thus;
15. It may be mentioned that there is a difference between seizing of a document and impounding a document. A seizure is made at a particular moment when a person or authority takes into his possession some property which was earlier not in his 7 possession. Thus, seizure is done at a particular moment of time. However, if after seizing of a property or document the said property or document is retained for some period of time, then such retention amounts to impounding of the property or document. In the Law Lexicon by P. Ramanatha Aiyar (2nd Edition), the word "impound" has been defined to mean. "to take possession of a document or the like for being held in custody in accordance with law". Thus, the word "impounding" really means retention of possession of a goods or a document which has been seized.
16. Hence, while the police may have power to seize a passport under Section 102 Cr.P.C., it does not have power to retain or impound the same, because that can only be done by the passport authority under Section 10(3) of the Passports Act. Hence, if the police seize a passport (which it has power to do under Section 102 Cr.P.C.), thereafter the police must send it along with a letter to the passport authority 8 clearly stating that the seized passport deserves to be impounded for one of the reasons mentioned in Section 10(3) of the Act. It is thereafter the passport authority to decide whether to impound the passport or not. Since impounding of a passport has civil consequences, the passport authority must give an opportunity of hearing to the person concerned before impounding his passport. It is well settled that any order which has civil consequences must be passed after giving opportunity of hearing to a party [vide State of Orissa Vs. Binapani Dei] [AIR 1967 SC 1269].
18. In our opinion, even the Court cannot impound a passport. Though, no doubt, Section 104 Cr.P.C. states that the Court may, if it thinks fit, impound any document or thing produced before it, in our opinion, this provision will only enable the Court to impound any document or thing other than a passport. This is because impounding of a passport is provided for in Section 10(3) of the Passports Act. The 9 Passports Act is a special law while the Cr.P.C. is a general law. It is well settled that the special law prevails over the general law vide G.P. Singh's Principles of Statutory Interpretation (9th Edition pg. 133). This principle is expressed in the maxim Generalia specialibus non derogant. Hence, impounding of a passport cannot be done by the Court under Section 104 Cr.P.C. though it can impound any other document or thing.
7. Therefore, the Court cannot retain the passport as it amounts to impounding which can only be done by the Passport Authority under Section 10(3) of Passports Act, 1967. Therefore, the petitioner is entitled for release of Passport and Visa (Sl.No.3). The petitioner has also sought release of item Nos.4 to 8. Among them, item Nos.4,5,7 & 8 are not required by the petitioner for his day to day activities. The item No.6 (Nokia keypad 10 mobile-01) is required by the petitioner for his day to day activities as it contains contact details and bank transaction details. Therefore, the petitioner is entitled for release of item No.6 - Nokia keypad mobile. The petitioner is not entitled for release of the other articles which are at Sl.Nos.4,5,7 & 8. The learned Special Judge, without considering the above aspect has rejected the application filed by the petitioner under Section 457 of Cr.P.C. and therefore, it requires to be quashed. Accordingly, I pass the following:
ORDER The petition is allowed.
The order dated 18.06.2020 passed by the Principal District and Sessions Judge, Uttara Kannada, Karwar, in Special Case No.24/2020 11 rejecting the application of the petitioner under Section 457 of Cr.P.C., is quashed. The application filed by the petitioner under Section 457 of Cr.P.C. is partly allowed. The petitioner is entitled for release of item Nos.3 and 6 of Column No.11 of the charge-sheet for his interim custody, subject to the following conditions:
(i) The petitioner/accused shall produce item Nos.3 and 6 at the time of trial or whenever the Court requires.
(ii) The petitioner/accused shall
execute indemnity bond for a
sum of Rs.50,000/-.
(iii) The petitioner/accused shall not travel abroad without the prior permission of the Court.
Sd/-
JUDGE *Svh/-