Madras High Court
M.Natarajan vs The Regional Passport Officer on 6 August, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.08.2012 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.19777 of 2012 and M.P.No.1 of 2012 M.Natarajan .. Petitioner Vs. 1.The Regional Passport Officer, Regional Passport Office, Shastri Bhavan, No.26,Haddows Road, Chennai-600 006. 2.Inspector of Police, SPE/CBI/ACB/Chennai-6 Shastri Bhavan, Haddows Road, Chennai. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to the proceedings of the respondent dated 05.01.2012, File No.MAS/PC/00171/11 and quash the same. For Petitioner : Mr.G.Rajagopalan, SC for M/s.G.R.Associates For Respondents : Mr.M.Krishnan, CGSC for R-1 Mr.N.Chandrasekaran, Spl.P.P for CBI for R-2 - - - - ORDER
The short question arises for consideration is whether the petitioner's Passport being impounded by the Regional Passport Officer, Chennai vide order dated 05.01.2012 is liable to be interfered with by this Court ?
2.The petitioner was informed by the first respondent that his Passport vide No.Z1758388, dated 16.12.2008 valid till 15.12.2018 issued by his office was impounded under Section 10(3)(d) of the Passport Act, 1967 vide the order of the Principal Special Judge for CBI Cases, Chennai made in C.C.No.6 of 2004, dated 26.07.2010 and the order passed in Crl.M.P.No.2417 of 2008 in C.C.No.6 of 2004 and further vide order dated 11.8.2010 passed by this court in Crl.M.P.No.1 of 2010 in Crl.A.No.476 of 2010 as forwarded by the Central Bureau of Investigation (CBI), Anti-Corruption Branch, Chennai. Therefore, the petitioner was directed to surrender his Passport. If the case referred therein was disposed of, the outcome of the case was directed to be intimated with certified copy of the court order for further process. 3.On receipt of the letter, the petitioner had issued a legal notice dated 21.01.2012 through his counsel alleging that impounding of Passport was against the provisions of law including the Passport Act. It was the denial of right of personal liberty guaranteed under Article 21 of the Constitution and such a right cannot be deprived except by the procedure established by law. It was stated by the petitioner that he had been invited by the World Forum Federation to be held at St. Catherine's College, Oxford, England from 28.08.2012 to 02.09.2012. He had already arranged the Air tickets for his travel starting from Chennai on 22.08.2012 and to return to Chennai on 04.09.2012 by traveling in Emirates Airline. The tour programme of the petitioner was also arranged by the Organizer. A copy of the same has been enclosed in the typed set.
4.It was stated by the petitioner that he had earlier worked in the State Government in the Information Department. He is the editor of a Tamil Fortnightly "Puthiya Parvai". He is also a social worker and had written many books. He had a wide circle of friends and had visited several meetings and other places throughout the World with respect to his magazine. He had stated that he was implicated in an offence with three other persons. He was convicted by the Special Judge for CBI cases in C.C.No.6 of 2004 on 26.07.2010. His conviction was for a period of two years with a fine of Rs.20,000/-. The petitioner had preferred a criminal appeal before this court being Crl.A.No.476 of 2010. In Crl.M.P.No.1 of 2010, the sentence of imprisonment was suspended pending appeal with a condition that the petitioner should execute a bond for a sum of Rs.10,000/- with two sureties each for a like sum to the satisfaction of the Special Judge for CBI Cases and with a further condition that he should report before the court once in three months on the first working day until further orders. It was stated by the petitioner that subsequently, he had moved an application in M.P.No.1 of 2011 seeking for relaxing the condition stating that he is being punctually obeyed the condition and that he could not appear before the court on 1.7.2011. This court by an order dated 27.6.2011 had relaxed the condition of appearance before the Special Judge for CBI Cases only on 1.7.2011. During which period he had to travel abroad and had not given any room for any breach of the conditions imposed. Therefore, it was contended by him that impounding of Passport at this stage was invalid. The principles of natural justice have not been followed an no notice was issued to him prior to impounding of the Passport. It was stated that the term "moral turpitude" under Section 10(3)(d) has not been defined and therefore, the provisions of law law should not be invoked. Since the petitioner's conviction is pending in an appeal and the conviction has not become final, the order impounding the Passport under Section 10(3)(d) cannot be valid.
5.On notice from this court, the respondents have filed a counter affidavit, dated 2.8.2012. In the counter affidavit sworn to by the Deputy Passport Officer, in paragraphs 6 and 7, it was averred as follows :
"6.I respectfully submit that the CBI suspected that the convicted accused Shri M.Natarajan petitioner of this case may flee the country and may not be able available for judicial process. Hence the CBI requested this office to impound the Passport No.Z1758388 dated 16.12.2008 valid till 15.12.2018 issued to the petitioner Sri M.Natarajan, under Section 10(3)(d) of Indian Passport Act, 1967.
7.I submit that this office impounded the Passport No.Z1758388 dated 16.12.2008 valid till 15.12.2018 issued to the petitioner Shri M.Natarajan under Section 10(3)(d) of Indian Passport Act, 1967. I further submit that also this office of 1st respondent advised the petitioner that in case, the above case is disposed of, outcome of the case may be intimated with certified copy of the court order for further process at this office end."
6.In support of the said stand, they have also enclosed a copy of the letter sent by the CBI Anti-Corruption Branch, Chennai, dated 26.12.2011 and the same reads as follows :
"Sub : CBI case no.RC.24/A/1998/CBI/ACB/Chn impounding of Passport No.Z1758388 of M.Natarajan Reg.
The case in RC 24/A/98, Chennai was registered by CBI, ACB, Chennai on 22.04.98 and after investigation, a final report was filed before Hon'ble Court of Special Judge for CBI cases against S/Sh.M.Natarajan, V.Bhaskaran, S.Balakrishnan, Yogesh Balakrishnan and Smt.Sujaritha Sundararajan u/s.120-B r/w 420, 467, 471 IPC and Sec.13(2) r/w 13(1)(d) of PC Act, 1988.
2.The Hon'ble Court of Special Judge for CBI Case imprisonment for two years and also to pay a fine of Rs.20,000/-. (Copy Enclosed). The sentence alone was suspended on 11.08.10 by the Hon'ble High Court at Madras in Crl.A No.476/2010.
3.It is strongly suspected that the convicted accused M.Natarajan, having possession of Indian Passport No.Z 1758388 may flee the country and may not be available for judicial process. Hence it is requested that the Indian Passport No.Z 1758388 issued to him may be impounded u/s 10(3)(d) of Indian Passport Act, 1967."
It is pursuant to the request, the impugned order came to be passed.
7.The first question to be considered was whether the provisions of Section 10(3)(d) of the Passports Act, 1967 is attracted to the case on hand? Section 10(3)(d) reads as follows :
"10.Variation, impounding and revocation of passports and travel documents.-
(1) and (2) ...... (omitted) (3)The passport authority may impound or cause to be impounded or revoke a passport or travel document,-
(a), (b) and (c) ...... (omitted)
(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;"
8.Since the impugned order was passed by the Regional Passport Officer, the petitioner has a remedy by way of an appeal under Section 11. But the petitioner has not chosen to file an appeal on the ground that the impugned order violates the basic principles of natural justice.
9.Mr.G.Rajagopalan, learned Senior Counsel appearing for M/s.G.R. Associates contended that when the petitioner's conviction has been suspended, the question of invoking Section 10(3)(d) will not arise. However, this argument does not stand to reason. Since suspension of sentence of imprisonment does not erase the conviction which is on record. This position of law has been clarified by the Supreme Court in Dy. Director of Collegiate Education (Admn.) v. S. Nagoor Meera reported in (1995) 3 SCC 377 and in paragraph 7, the Supreme Court had observed as follows :
"7........Merely because the sentence is suspended and/or the accused is released on bail, the conviction does not cease to be operative. Section 389 of the Code of Criminal Procedure, 1973 empowers the appellate court to order that pending the appeal the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. Section 389(1), it may be noted, speaks of suspending the execution of the sentence or order, it does not expressly speak of suspension of conviction. Even so, it may be possible to say that in certain situations, the appellate court may also have the power to suspend the conviction an aspect dealt with recently in Rama Narang v. Ramesh Narang1. ...."
In this case, there was no stay of conviction, but only the sentence had been suspended. Therefore, there is no impediment for the respondents to invoke the power under Section 10(3)(d) of the Passport Act.
10.The second contention was that the term "moral turpitude" has not been specifically defined. Therefore, the authority cannot construe the conviction of the petitioner will amount to offence involving moral turpitude.
11.Certainly it cannot be said that conviction under Section 420 IPC and Section 13(2) and 13(1)(d) of the Prevention of Corruption Act cannot be said to be not involving moral turpitude. In this context, it is necessary to refer to a judgment of the Supreme Court in P, an Advocate, Re v., reported in (1964) 1 SCR 697 = AIR 1963 SC 1313 and in paragraph 7 it was observed as follows :
7.......however, it is of utmost importance to remember that the expression moral turpitude or delinquency is not to receive a narrow construction....."
Therefore, having been convicted for offences under Section 420 IPC as well as under the Prevention of Corruption Act, it cannot be said that it cannot be construed as an offence involving "moral turpitude".
12.The learned Senior counsel thereafter contended that while impounding of the Passport, the petitioner was not heard. Further the letter sent by the CBI stating that the petitioner may flee the Country and may not be available for judicial process was not based upon any fact. On the other hand, ever since the grant of bail, he has been observing the conditions imposed and that on one occasion where he could do so, that was also condoned by the court. During the relevant period, he had also traveled abroad. Therefore, stating that the petitioner may flee the country is not supported by any material on record. Inasmuch as the principles of natural justice were violated and he has not been heard before ordering for impounding of passport, the order is liable to be set aside. The petitioner may be allowed to go abroad as per the programme already conceived by him.
13.Insofar as denial of principle of natural justice is concerned, reliance is placed upon a judgment of the Supreme Court in Maneka Gandhi v. Union of India reported in (1978) 1 SCC 248. In that case, the Supreme Court while dealing with the impounding of Passport under Section 10(3)(d) had held in paragraphs 8, 13 and 15 as follows :
"How far natural justice is an essential element of procedure established by law
8.The question immediately arises: does the procedure prescribed by the Passports Act, 1967 for impounding a passport meet the test of this requirement? Is it right or fair or just? The argument of the petitioner was that it is not, because it provides for impounding of a passport without affording reasonable opportunity to the holder of the passport to be heard in defence. To impound the passport of a person, said the petitioner, is a serious matter, since it prevents him from exercising his constitutional right to go abroad and such a drastic consequence cannot in fairness be visited without observing the principle of audi alteram partem. Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause cannot but be condemned as unfair and unjust and hence, there is in the present case clear infringement of the requirement of Article 21. Now, it is true that there is no express provision in the Passports Act, 1967 which requires that the audi alteram partem rule should be followed before impounding a passport, but that is not conclusive of the question. If the statute makes itself clear on this point, then no more question arises. But even when the statute is silent, the law may in a given case make an implication and apply the principle stated by Byles, J., in Cooper v. Wandswort Board of Works12:
A long course of decisions, beginning with Dr Bentley case and ending with some very recent cases, establish that, although there are no positive works in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The principle of audi alteram partem, which mandates that no one shall be condemned unheard, is part of the rules of natural justice. In fact, there are two main principles in which the rules of natural justice are manifested, namely, nemo judex in causa sua and audi alteram partem. We are not concerned here with the former, since there is no case of bias urged here. The question is only in regard to the right of hearing which involves the audi alteram partem rule. Can it be imported in the procedure for impounding a passport?
13.Now, here, the power conferred on the Passport Authority is to impound a passport and the consequence of impounding a passport would be to impair the constitutional right of the holder of the passport to go abroad during the time that the passport is impounded. Moreover, a passport can be impounded by the Passport Authority only on certain specified grounds set out in sub-section (3) of Section 10 and the Passport Authority would have to apply its mind to the facts and circumstances of a given case and decide whether any of the specified grounds exists which would justify impounding of the passport. The Passport Authority is also required by sub-section (5) of Section 10 to record in writing a brief statement of the reasons for making an order impounding a passport and, save in certain exceptional situations, the Passport Authority is obliged to furnish a copy of the statement of reasons to the holder of the passport. Where the Passport Authority which has impounded a passport is other than the Central Government, a right of appeal against the order impounding the passport is given by Section 11, and in the appeal, the validity of the reasons given by the Passport Authority for impounding the passport can be canvassed before the Appellate Authority. It is clear on a consideration of these circumstances that the test laid down in the decisions of this Court for distinguishing between a quasi-judicial power and an administrative power is satisfied and the power conferred on the Passport Authority to impound a passport is quasi-judicial power. The rules of natural justice would, in the circumstances, be applicable in the exercise of the power of impounding a passport even on the orthodox view which prevailed prior to A.K. Kraipak case22. The same result must follow in view of the decision in A.K. Kraipakcase22 even if the power to impound a passport were regarded as administrative in character, because it seriously interferes with the constitutional right of the holder of the passport to go abroad and entails adverse civil consequences.
15.But the question then immediately arises whether the Central Government has complied with this procedure in impounding the passport of the petitioner. Now, it is obvious and indeed this could not be controverted, that the Central Government not only did not give an opportunity of hearing to the petitioner after making the impugned order impounding her passport but even declined to furnish to the petitioner the reasons for impounding her passport despite request made by her. We have already pointed out that the Central Government was wholly unjustified in withholding the reasons for impounding the passport from the petitioner and this was not only in breach of the statutory provision, but it also amounted to denial of opportunity of hearing to the petitioner. The order impounding the passport of the petitioner was, therefore, clearly in violation of the rule of natural justice embodied in the maxim audi alteram partem and it was not in conformity with the procedure prescribed by the Passports Act, 1967......."
14.Following the judgment in Maneka Gandhi's case (cited supra), the Andhra Pradesh High Court had an occasion to consider a case of impounding of passport under section 10(3)(d) of the Passport Act vide its judgment in Hassan Ali Khan Vs. The Regional Passport Officer, Passport Office, Hyderabad reported in AIR 1998 AP 232. In paragraphs 7 and 8, the Andhra Pradesh high Court had observed as follows :
"7....It is settled law that the respondent herein could not have taken steps for impounding the passport without issuing notice to the petitioner and affording him an opportunity to submit his explanation. Opportunity of hearing is required to be given to a passport holder before the decision to impound the passport is taken. The passport holder is entitled for a reasonable opportunity of being heard. The respondent-Passport Officer would not have adopted the present method of straightway issuing a circular impounding the passport. The action is totally illegal and arbitrary. The action of impounding the passport could not have been taken by the respondent herein on the basis of some information furnished by the Police alone. The petitioner should have been put on notice as to why the passport should not be impounded in exercise of power conferred upon the Passport Officer under the provisions of the Passport Act, 1967.....
8....The method and procedure adopted by the respondent in dealing with the case of the petitioner is totally illegal and arbitrary. The action of the respondent is required to be fair and reasonable and free from arbitrariness. Nothing prevented the respondent from issuing appropriate notice to the petitioner based upon the information available with him and directing him to show cause as to why appropriate action should not be taken against him. If no such procedure is adopted by the respondent, the action is not only ultra vires the provisions of the Passport Act, 1967 but also violative of principles of natural justice. However, no direction as prayed for by the petitioner to straightway issued and return the passport can be granted, the matter is required to be reconsidered by the respondent. It is open to the respondent to issue an appropriate notice to the petitioner herein giving him an opportunity of explanation and then decide as to whether his passport could be returned by including the visa. It is also open to the respondent to issue notice to the petitioner if there is any need for impounding the passport of the petitioner. A detailed enquiry is required to be made by the respondent and after affording reasonable opportunity to the petitioner and then only decide the matter in accordance with law."
15.The submission of the learned Senior Counsel is correct insofar that he was not heard. But at the same time, it cannot be said that ingredients of Section 10(3)(d) is not attracted to the case on hand. But neither immediately after his conviction nor after he got the sentence suspended, his Passport was not impounded. He was also allowed to travel abroad during that period. The impugned order was based upon the letter of the CBI but without hearing the petitioner and hence it is clearly invalid. To that extent the impugned order is liable to be set aside.
16.However, that will not end the matter. Since the petitioner had complained that he was not heard on the question of accepting the letter from the CBI, the first respondent is hereby directed to hear the petitioner and pass appropriate orders under Section 10(3)(d) if it is so required. Even after this exercise, if the order is adverse to the petitioner, it will always be open to him to avail the appellate remedy under Section 11 of the Passports Act, 1967. Accordingly, the impugned order will stand set aside. This writ petition will stand allowed to an extent indicated above. However, there will be no order as to costs. Consequently connected miscellaneous petition stands closed.
vvk To
1.The Regional Passport Officer, Regional Passport Office, Shastri Bhavan, No.26,Haddows Road, Chennai-600 006.
2.Inspector of Police, SPE/CBI/ACB/Chennai-6 Shastri Bhavan, Haddows Road, Chennai