Madras High Court
M. Kaja Mohaideen vs The Senior Intelligence Officer on 26 November, 2012
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26/11/2012 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRL.R.C.(MD)No.535 of 2012 a n d M.P.(MD) No.2 of 2012 M. Kaja Mohaideen ... Petitioner Vs The Senior Intelligence Officer Directorate of Revenue Intelligence Regional Unit No.1288 Trichy Road Coimbatore 18. ... Respondent PRAYER Criminal Revision Petition filed under Section 397 r/w. 401 of Cr.P.C., to call for the records and set aside the order of the learned Judicial Magistrate No.I, Tirucirapalli in Crl.M.P.No.1618 of 2012 F.No.VIII/48/04/2011- DRI on 10/4/2012 and the same direct the respondent to return the passport of the petitioner to the petitioner. !For Petitioner ... Mr.S.Palanikumar ^For Respondents... Mr.C.Arul Vadivel alias Sekar Spl.P.P.(Customs) - - - - - :ORDER
The Petitioner/Accused has focused the present Criminal Revision Petition as against the order passed in Cr.M.P.No.1618 of 2012 F.No.VIII/48/04/2011-DRI dated 10/4/2012 passed by the Learned Judicial Magistrate No.I, Tiruchirapalli.
2. The Learned Judicial Magistrate No.I, Tiruchirapalli, while passing the orders in Cr.M.P.No.1618 of 2012 on 10/4/2012 has among other things observed that on the side of prosecution, it is represented that if the pass- port is handed over to the Petitioner/Accused, then he will go abroad and that he may not appear during the trial of the case etc., and consequently, accepting the said submission, dismissed the petition.
3. Assailing the order of dismissal dated 10/4/2012 in Cr.M.P.No.1618 of 2012 passed by the Learned Judicial Magistrate No.II, Tiruchirapalli, it is the submission of the Learned Counsel for the Petitioner/Accused that the impugned order is unsustainable in law because of the fact that neither the Investigation officer nor the Court have the power to impound the Pass-port pending investigation on trial.
4. The Learned Counsel for the Petitioner/Accused urges before this Court that the 'Right of Travel' to a foreign Country as it is a fundamental right to a specific flowing from the tenor of Article 21 of the Constitution of India, which cannot be crippled or taken away except in accordance with law.
5. The vital plea taken on behalf of the Petitioner/Accused is that the Customs Officers cannot detain the Pass-Port of the Petitioner/Accused indefinitely and that too without any rhyme or reason.
6. It is the contention of the Learned Counsel for the Petitioner/Accused that the Pass-Ports Act, 1967 is a Special Enactment and the Special Act prevails over the general provisions of Criminal Procedure Code.
7. Lastly, the Learned Counsel for the Petitioner/Accused vehemently argues that as per Section 104 of Cr.P.C., a Court of Law cannot impound the Pass-Port of a Citizen, although, it can impound any other document or thing.
8. To lend support to the contention that impounding of a Pass-Port can only be done by the Pass-Port Authority under Section 10 (3) of the Pass-Port Act, 1967, the Learned Counsel for the Petitioner/Accused relies on the decision of the Honourable Supreme Court in SURESH NANDA Vs. C.B.I {2008 (1) L.W.(Crl.) - 503}, at page 504, wherein at paragraph Nos.10 and 11, it is held thus:-
"10. In the present case, no steps have been taken under Section 10 of the Act which provides for variation, impounding and revocation of the passports and travel documents. Section 10 A of the Act which provides for an order to suspend with immediate effect any passport or travel document; such other appropriate order which may have the effect of rendering any passport or travel document invalid, for a period not exceeding for weeks, if the Central Government or any designated Officer on its satisfaction holds that it is necessary in public interest to do without prejudice to the generality of the provisions contained in Section 10 by approaching the Central Government or any designated Officer. Therefore, it appears that the passport of the appellant cannot be impounded except by the Passport Authority in accordance with law. The retention of the passport by the respondent (CBI) has not been done in conformity with the provisions of law as there is no order of the passport authorities under Section 10 (3) (3) or by the Central Government or any designated officer under Section 10 A of the Act to impound the passport by the respondent exercising the powers vested under the Act.
11. Learned Additional Solicitor General has submitted that the Police has power to seize a passport in view of Section 102 (1) of the Cr.P.C., which states:-
Power of Police Officer to seize certain property: (1) Any Police Officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.
In our opinion, while the Police may have the power to seize a passport under Section 102 (1) Cr.P.C., it does not have the power to impound the same. Impounding of a passport can only be done by the passport authority under Section 10 (3) of the Passports Act, 1967."
9. He also cites the decision of this Court in VEENITA GUPTA Vs. STATE, REP. BY DEPUTY SUPERINTENDENT OF POLICE, CENTRAL BUREAU OF INVESTIGATION, ANTI CORRUPTION BRANCH, CHENNAI 600 006 {(2011) 1 MLJ (Crl) 326}, wherein at page 327, it is held as follows:-
"The Police are not empowered to retain the passports of the accused for the purpose of evidence for the prosecution in proof of the charges levelled against the provisions of the Passports Act, as the certified xerox copies of the same can be exhibited as evidence in trial.
Passports Act which is a special enactment while dealing with the impounding of passport will prevail over the provisions of the criminal procedure code which is a general law.
Impounding of a passport cannot be done by the Court under Section 104 of the Cr.P.C., though it can impound any other document or thing."
10. That apart, the Learned Counsel for the Petitioner cites the order passed by this Court dated 2/3/2012 in Crl.R.C.(MD) No.90 of 2012 between K.N.RAMAJEYAM Vs. THE STATE, REPRESENTED BY THE ASSISTANT COMMISSIONER OF POLICE, SPECIAL CELL FOR ANTI-LAND GRABBING, CITY CRIME BRANCH, TRICHY DISTRICT, wherein at paragraph Nos.9 and 10, it has among other things laid down as follows:-
"9. For all the reasons stated above, this Court comes to the conclusion that the order of the learned Judicial Magistrate, which is impugned in this Criminal Revision Case cannot withstand the scrutiny of this Court and the same is to be declared as an order passed without properly considering the scope of the power under Section 104 Cr.p.C., and also either in ignorance of or in utter disregard for the earlier judgments of the Honourable Supreme Court and that hence, the said order is liable to be set aside.
10. Accordingly, the Criminal Revision Case is allowed and the order of the learned Judicial Magistrate No.IV, Trichy dated 13/2/2012 made in C.M.P.No.750 of 2012 is set aside. The learned Judicial Magistrate is directed to return the passport of the revision petitioner to him within a week from this day, after getting the leaves of the passport xeroxed and certified to be true copies which shall be retained in the case bundle. It is also made clear that if the respondent/Police would still want to get the passport impounded, it can be done only by approaching the Passport Authority under Section 10 or the Authorities under Section 10 A of the Passport Act."
11. He also draws the attention of this Court to yet another order passed by this Court in Crl.R.C.No.223 of 2012 dated 21/9/2012 between K.PARVATHY Vs. THE SENIOR INTELLIGENCE OFFICER, DIRECTORATE OF REVENUE INTELLIGENCE, REGIONAL UNIT, NO.1288 TRICHY ROAD, COIMBATORE 18, wherein in paragraph 4, it is observed as follows:-
"The learned Special Public Prosecutor appearing for the respondent has contended that as per the recent decision of the Honourable Supreme Court, the Judicial Magistrate is not having power to impound passport and only the passport authority is empowered to impound."
and consequently, the Criminal Revision Case has been allowed and a direction has been issued to the Judicial Magistrate No.I, Tiruchirapalli to handover the Passport of the Revision Petitioner and also that the Respondent has been directed to approach the concerned authority to take necessary steps against the Revision Petitioner.
12. Repelling the contentions of the Learned Counsel for the Petitioner/Accused, the Learned Special Public Prosecutor (Customs) submits that in the present case, the Passport of the Petitioner/Accused has been seized and in fact, the Petitioner/Accused has been arrested on 12/8/2011 and remanded to judicial custody in respect of an offence under the Customs Act, 1962.
13. Expatiating his contentions, the Learned Special Public Prosecutor (Customs) puts forth an argument that there is a difference between seizing of a document and impounding of a document in the eye of law.
14. Added further, he submits that in the instant case, the Passport of the Petitioner/Accused has only been seized and not impounded and that the Learned Judicial Magistrate No.I, Tiruchirapalli has rightly assigned the reasons for dismissing the Crl.M.P.No.1618 of 2012 filed the Petitioner/Accused (for return of Passport to him) and the said order does not from any vice or capriciousness in the eye of law.
15. The Learned Special Public Prosecutor (Customs) relies on the decision of the Honourable Supreme Court in SURESH NANDA Vs. CENTRAL BUREAU OF INVESTIGATION {(2008) 3 SUPREME COURT CASES - 674}, at special page 675, wherein it held as follows:-
"While the Police may have the power to seize a passport under Section 102 (1) Cr.P.C., it does not have the power to impound the same. Impounding of a passport can only be done by the Passport Authority under Section 10 (3) of the Passports Act, 1967. Hence, while the police may have power to seize a passport under Section 102 Cr.p.C., if it is permissible within the authority given 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 seizes 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 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, for 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."
Also, in paragraph 15, it is held thus:-
"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 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."
16. Apart from the above, he relies on the order dated 26/5/2009 in Crl.M.C.No.1575 of 2009 between ABDUL JALEEL Vs. STATE OF KERALA passed by the Kerala High Court, wherein in paragraph 4, it has inter alia held thus:-
"4. The facts of the case reveal that even if it is taken that petitioner was not served with summons, he was aware of the case pending before the learned Magistrate and he had approached this Court in 2007 claiming anticipatory bail. This Court directed the petitioner to surrender and seek regular bail in October 2007. Petitioner did not surrender and get the case disposed. Instead he surrendered only on 22/1/2009 and obtained bail as per order in Crl.M.P.297/2009. As the learned Magistrate found that presence of the petitioner could not be procured without a direction to surrender the passport, a direction was issued to surrender the passport. The attempt of the petitioner is to get back the passport and to leave India. Though learned counsel appearing for the petitioner submitted that petitioner is prepared to return back to India immediately after getting extention of the visa and therefore, the passport is to be released and the learned Magistrate cannot retain the passport and thereby impounded the passport as against the provision of Section 10 (3) of the Act, on the facts of this case, I find that if the passport is to be released to the petitioner, he will not be available for trial. Petitioner was absconding. To assure the presence of an accused, while granting bail, Court can direct him not to leave India. For that purpose he was asked to surrender the passport. Such surrender or its retention for the limited purpose cannot be treated on impounding the passport. In such circumstance, I do not find it in the interest of administration of criminal justice to release the passport to the petitioner at this stage. Learned Magistrate is directed to commit the case expeditiously to the Sessions Court and the Sessions Judge to dispose the case without any delay."
17. He seeks in aid of the unreported judgment of Kolkata High Court in CRR No.3388 of 2012 dated 17/10/2012 between SNANDY SHAMBULAL TIKAMDAS KHIRA Vs. THE STATE OF WEST BENGAL & ORS, wherein it has among other things observed and held hereunder:-
"Therefore, I dispose of this revisional application by directing the customs authority to return the passport of the petitioner within seven days from the date of communication of this order. Prior to the release of the passport, the customs authority shall retain a duly attested photocopy of the passport for producing as secondary evidence in the trial, if necessary. The passport shall be returned to the petitioner on executing adequate bond to the satisfaction of the learned Magistrate and on further condition that the same shall be produced before the learned Magistrate as and when the same is necessary. The conditions of bail imposed on the petitioner be modified to the extent that in addition to other conditions of bail the petitioner shall not leave the country without express permission of the learned Magistrate and such permission shall be granted only after giving adequate opportunity of hearing to the customs authority."
18. At this stage, the Learned Counsel for the Petitioner/Accused informs this Court that the Petitioner/Accused has been released on bail by the trial Court earlier.
19. On behalf of the Respondent, it is represented before this Court that soon the charge sheet will be filed against the Petitioner/Accused.
20. It is not out of place for this Court to pertinently point out that Section 14 of the Passport Act, 1967, empowers any Officer of Customs by a general or special order of the Central Government in this behalf and any Officer or Police or Immigration Officer, not below the rank of a Sub-Inspector may search any place and seize any Passport or approval document from any person against whom a reasonable suspicion exists that he has committed an offence punishable under Section 12 of the Passport Act.
21. As a matter of fact, Section 12 of the Act speaks of the offences and penalties in regard to contravention of provisions of Section 3 or 12 (1) b to e and Sub-Section 2 to 4 thereof. Impounding of a Pass-port or revoking the Passport of a person, if the Holder of the Passport was convicted by a Court in any offence, involving moral turpitude, provided the sentence impound is imprisonment for not less than two years etc., can be done only by the competent authority under the Passport Act and neither the Customs Authority nor the Court can impound the Passport.
22. It is to be noted that the Code of Criminal Procedure has been repelled by means of 1973 Act and search warrants can be issued as per Sections 93 to 101 of Cr.P.C., and also seizure can be effected under Sections 102 to 105 thereof. In law, a seizure is made at a particular point of time. But, if after seizure of a property or a document, the said property or document is retained for some period of time or for sufficiently long period, then such retention may amount to impounding of the property/document.
23. Indeed, for an offence under Section 132 of the Customs Act, in respect of false declaration, false documents etc., the punishment extends to an imprisonment of two years or with fine or with both. Section 135 of the Customs Act speaks of evasion of Customs duty and prescribes punishment thereof. The Petitioner/Accused, according to the prosecution case has come from Colombo through ship to Tuticorin on 11/8/2011 and further, he has gone to Trichy and while he was staying at Vignesh Lodge, Trichy, he was intercepted by the Directorate of Revenue Inspector, Coimbatore and a statement has been recorded from him in regard to 30 gold rings given by his brother at Colombo with instruction to hand over to a person identified by him at Trichy. Subsequently, the Petitioner/Accused has been arrested on 12/8/2011 and remanded to judicial custody, Tiruchirapalli for a period of fifteen days. Pursuant to the remand order, he has detained in Central Prison, Puzhal, Chennai. On 6/9/2011, he has been granted bail by the Learned Judicial Magistrate No.I, Trichy.
24. In view of the well settled proposition of law that the Customs Authority has no power to impound a passport of a Citizen and further that impounding of a Passport cannot be done by a Court of Law and taking note of another fact that the impounding of Passport can only be done by a competent authority as prescribed under the Passports Act, 1967, this Court in the interest of justice, sets aside the order of dismissal passed by the Learned Judicial Magistrate No.I, Tiruchirapalli dated 29/3/2012 in Cr.M.P.No.1618/2012 and allows the Criminal Revision Petition, by directing the Customs Authority to return the Passport of the petitioner within ten days from the date of receipt of the communication of this order. Prior to the release of the Passport, the Respondent/Customs Authority is directed to retain a duly attested photo copy of the Passport for producing as secondary evidence in the trial, if necessary. Further, the Passport shall be returned to the Petitioner on executing adequate bond to the satisfaction of the Learned Magistrate and on further condition that the same shall be produced before the Learned Magistrate as and when the same is necessary. Also, this Court imposes a condition (besides other conditions imposed on the Petitioner by the Magistrate) by modifying to an extent that he shall not leave the Country without express permission of the Learned Magistrate and such permission shall be granted only after providing adequate opportunity of hearing to the Respondent/Customs Authority, as the case may be. No costs. Consequently, the connected Miscellaneous Petition No.2 of 2012 is closed.
mvs.
To
1. The Senior Intelligence Officer Directorate of Revenue Intelligence Regional Unit No.1288 Trichy Road Coimbatore 18.
2. The Judicial Magistrate No.I, Tiruchirapalli