Sh. Charan Jeet Arora vs Joint Secy (Psp) And Cpo & Ors on 23 August, 2022

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Delhi High Court - Orders

Sh. Charan Jeet Arora vs Joint Secy (Psp) And Cpo & Ors on 23 August, 2022

1. This writ petition has been preferred challenging the orders dated 05 July 2019 and 10 December 2019 passed by the respondents. The order of 05 July 2019 essentially refers to the provisions made in Section 6(2)(e) of the Passports Act, 197 ["the Act"] and taking into consideration the conviction of the petitioner by the competent CBI Court, it has proceeded to record that till a decision is rendered by the High Court on the pending appeal, the application for reissue of a passport cannot not be considered. The aforesaid order has been reaffirmed by the order of 10 December 2019 by the Joint Secretary, Passports.

2. In order to evaluate the issues which arise in the present writ petition, it would be pertinent to notice the following essential facts. The petitioner was granted a passport on 01 September 2011 which was to remain valid up Signature Not Verified Digitally Signed By:NEHA Signing Date:25.08.2022 17:47:08 to 31 August 2021. Upon being arraigned as an accused in a criminal case titled „CBI vs. Sushil Kumar Gupta & Ors.‟, the petitioner came to be convicted by the Special Judge, CBI on 14 March 2018. The petitioner was convicted for offences referable to Sections 120B read with Sections 468, 467 and 471 of the Indian Penal Code, 1860 along with Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The petitioner was consequently sentenced to undergo rigorous imprisonment for a period of five years and also called upon to pay a fine of Rs. 1, 00, 000/- for each of the aforementioned offences. The petitioner thereafter filed an appeal numbered as Criminal Appeal No.378/2018 in which the sentence was placed under suspension on 18 May 2018.

3. The petitioner is stated to have approached the respondents on 18 July 2018 seeking amendments being made in the passport held by him insofar as his residential address is concerned. Based on the disclosures made therein and upon the respondents gathering knowledge of his conviction, an order of cancellation of the passport is stated to have been made on 18 July 2018. The endorsement of cancellation of the passport is also stated to have been duly stamped on the existing passport which was held by the petitioner.

4. Aggrieved by the aforesaid action of the respondents, the petitioner moved a miscellaneous application in the pending criminal appeal. That application came to be disposed of on 14 January 2019 with the Court observing that in case the petitioner desires to travel abroad for a valid reason, it would be open to him to file an application to seek revival of his passport. The petitioner, thereafter, moved the respondents for revival of the passport and for the processing of his original application which was made on 18 July 2018. It is the aforesaid application which came to be rejected in Signature Not Verified Digitally Signed By:NEHA Signing Date:25.08.2022 17:47:08 terms of the orders impugned.

5. Insofar as the rival contentions addressed before this Court and turning on Section 10 and Section 6 of the Act are concerned, those issues were succinctly noticed in the order of 10 May 2022 which is extracted hereinbelow: -

"The petitioner is essentially aggrieved by the cancellation of the passport which was held by him. Although there is some dispute inter partes of the background facts leading to the cancellation of the passport, it would be pertinent to note that in terms of Section 10(3)(d) of the Passports Act, 1967 [the Act], a holder of a passport or travel document is liable to face action for impounding or revocation of that document, if he has been convicted by a Court in India for any offence involving moral turpitude and sentenced to undergo imprisonment for not less than two years.

The petitioner here was convicted under Section 120B read with Sections 468, 467 and 471 of the Indian Penal Code, 1860 along with Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 on 14 March 2018. He was also sentenced to rigorous imprisonment for a period of five years. That judgment of conviction forms subject matter of challenge in a pending appeal in which the Court is informed the sentence has been suspended. According to the petitioner, the passport was cancelled by the respondents unilaterally without drawl of any proceedings as contemplated under Section 10 of the Act.

Mr. Ahluwalia, learned counsel appearing for the respondents, on the other hand, submits that the passport came to be cancelled based on the own disclosures as made by the petitioner. It was further submitted that in light of the provisions contained in Section 6(2)(e) of the Act, it was open to the respondent to have cancelled the passport. This Court notes that Section 6 of the Act deals with the subject of refusal to "grant" a passport or a travel document. This is also evident from the language employed in Section 6(2) of the Act which uses the phrase "to issue a passport or travel document". The Court notes that admittedly the petitioner at the relevant time did hold a valid passport. Prima facie, the submission addressed and based on Section 6 of the Act may not sustain.

In view of the rival submissions noted above, one of the principal questions which would merit consideration would be whether the passport could have been revoked merely on the conviction of the petitioner and without the procedure as prescribed in Section 10 of the Act being adhered to."

6. In view of the above, the first issue which presents itself for consideration is whether the respondents cancelled the passport which was Signature Not Verified Digitally Signed By:NEHA Signing Date:25.08.2022 17:47:08 held by the petitioner in accordance with the procedure as contemplated under Section 10. In order to examine the submissions addressed, it would be apposite to advert to the provisions made in Section 10 which is reproduced hereinbelow: -

"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 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 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 Signature Not Verified Digitally Signed By:NEHA Signing Date:25.08.2022 17:47:08 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 sub-section (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 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."

7. Insofar as Section 6 is concerned, the said provision deals with the powers conferred on the Passport Authority to refuse the issuance of a Signature Not Verified Digitally Signed By:NEHA Signing Date:25.08.2022 17:47:08 passport or a travel document. That provision is extracted hereunder: -

6. Refusal of passports, travel documents, etc.--(1) Subject to the other provisions of this Act, the passport authority shall refuse to make an endorsement for visiting any foreign country under clause

(b) or clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely:--

(a) that the applicant may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India;

(b) that the presence of the applicant in such country may, or is likely to, be detrimental to the security of India;

(c) that the presence of the applicant in such country may, or is likely to, prejudice the friendly relations of India with that or any other country;

(d) that in the opinion of the Central Government the presence of the applicant in such country is not in the public interest. (2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely:--

(a) that the applicant is not a citizen of India;

(b) that the applicant may, or is likely to, engage outside India in activities prejudicial to the sovereignty and integrity of India;

(c) that the departure of the applicant from India may, or is likely to, be detrimental to the security of India;

(d) that the presence of the applicant outside India may, or is likely to, prejudice the friendly relations of India with any foreign country;

(e) that the applicant has, at any time during the period of five years immediately preceding the date of his application, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years;

(f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India;

(g) that a warrant or summons for the appearance, or a warrant for the arrest, of the applicant has been issued by a court under any law for the time being in force or that an order prohibiting the departure from India of the applicant has been made by any such court;

(h) that the applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such repatriation;

(i) that in the opinion of the Central Government the issue of a passport or travel document to the applicant will not be in the public interest. "

8. As is manifest from a reading of Section 10(3)(d) of the Act, the Passport Authority stands empowered to impound a passport or travel Signature Not Verified Digitally Signed By:NEHA Signing Date:25.08.2022 17:47:08 document if the holder thereof has, at any time, after the issuance 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 not less than two years. Before this Court, it is not disputed that the conviction of the petitioner in the criminal case was in respect of an offence which involved moral turpitude and that the sentence which was imposed exceeded two years. It was therefore open and permissible for the Passport Officer to have impounded or revoked the passport held by the petitioner by invoking Section 10(3)(d) of the Act.

9. However, of equal significance is the procedure which the Passport Officer is obliged to follow and adhere to and which stands spelled out in Section 10(5). Sub-Section (5) of Section 10 clearly contemplates a brief statement of reasons being recorded by the Passport Authority before it makes an order cancelling or revoking a passport or travel document. Admittedly, in the facts of the present case, neither was the petitioner placed on notice by the Passport Authority of its intent to cancel or revoke the valid passport nor was he afforded an opportunity of hearing to represent against the proposed action. The Court bears in mind the well-settled principle of the respondents being obliged to adhere to the principles of natural justice as was duly propounded by the Constitution Bench of the Supreme Court in Maneka Gandhi vs. Union of India [(1978) 1 SCC 248].

10. More fundamentally, it is admitted to the respondents that no formal recordal of a statement as is contemplated and envisaged under sub-section (5) exists on the record. In fact it was candidly admitted by learned counsel for the respondent that no such order was in fact drawn or placed on the record.

Signature Not Verified Digitally Signed By:NEHA Signing Date:25.08.2022 17:47:08

11. In that view of the matter, it is manifest that the action of cancellation cannot possibly be sustained. The Court thus comes to the definite conclusion that the respondents failed to adhere to the statutory procedure enjoined by Section 10 of the Act and did not comply with the principles of natural justice as read into the provisions of the aforesaid Section in terms of the dictum laid down in Maneka Gandhi.

12. More fundamentally, the respondents also did not place on the record a brief statement of reasons as envisaged in Section 10(5) of the Act. This was a clear and unratifiable breach of Section 10 of the Act. Despite the aforesaid, the subsequent application which was made by the petitioner was treated as being liable to be evaluated in terms of the provisions made in Section 6. It would be relevant to observe that the question of the application being treated as one referable to Section 6 would have arisen providing a valid order cancelling or revoking the passport held by the petitioner existed. However, and as has been found by the Court, no such order of cancellation of the passport exists on the record of the respondents. The respondents appear to have proceeded on the mistaken assumption that a valid passport held by the petitioner came to be revoked in accordance with law. It is in the aforesaid backdrop that perhaps they appear to have proceeded on the basis that any subsequent application made by the petitioner would have to dealt with in accordance with Section 6 of the Act. That provision as has been noticed hereinabove would have applied provided the issue was one of reissue of a passport. The Court thus finds itself unable to sustain the action of the respondents.

13. Notwithstanding the above, the facts would evidence that on account of the action of the respondents, the passport came to be cancelled albeit in Signature Not Verified Digitally Signed By:NEHA Signing Date:25.08.2022 17:47:08 violation of the procedure as contemplated under Section 10. That takes the Court to consider the effective relief which can be granted to the petitioner in the facts and circumstances of the present case.

14. Undisputedly, if the petitioner were to apply for a passport presently and approach the concerned authority, it would be the provisions of Section 6(2)(e) which would clearly come in the way since five years are yet to expire from the date of conviction of the petitioner by the Special Judge. The petitioner has been unjustifiably placed under the burden of following the Section 6 route even though no valid order of revocation has been found to exist. That period of five years is stated to come to an end in January 2023. It is only then that the petitioner shall stand relieved of the statutory disqualification which stands constructed in terms of Section 6(2)(e) of the Act. The Court reiterates its conclusion that the petitioner has to shoulder this burden even though no valid order under Section 10 of the Act had been passed. It is the aforesaid facts which would have to be borne in mind while considering what effective relief could be accorded to the petitioner. On an overall conspectus of the aforesaid, the writ petition would warrant being allowed and disposed of on the following terms.

15. Accordingly, and for all the aforesaid reasons, the writ petition shall stand allowed. The petitioner is accorded liberty to apply to the respondents for the grant of a fresh passport after complying with all statutory formalities after 14 January 2023. In case such an application is made, the Passport Authority shall consider the same in accordance with law subject to the observation that the said application shall not be rejected solely on the ground of applicability of Section 6(2)(e) of the Act or of an order of cancellation having been previously made against the petitioner. The Signature Not Verified Digitally Signed By:NEHA Signing Date:25.08.2022 17:47:08 aforesaid would necessarily be subject to the respondents duly verifying that the petitioner does not stand convicted for any other offense involving moral turpitude and is otherwise not found to be disqualified or ineligible under the Act.

16. The petition stands disposed of on the above terms.

YASHWANT VARMA, J.

AUGUST 23, 2022/neha Signature Not Verified Digitally Signed By:NEHA Signing Date:25.08.2022 17:47:08

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Delhi High Court - Orders