Delhi District Court
Sh. Lovepreet Singh vs Cbi on 25 October, 2021
Criminal Revision No. 20/2021
IN THE COURT OF SH PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI-13, ROUSE AVENUE
DISTRICT COURT, NEW DELHI
Criminal Revision No. : 20/2021
Under Section : 120-B r/w 420, 467, 468, 471,
370 r/w 511 IPC
Circle : CBI/SC-I/New Delhi
RC No. : 2(S)/2018-CBI/SC-I/New Delhi
CNR Nos. : DLCT11-000373-2021
In the matter of 20/2021 :-
SH. LOVEPREET SINGH
S/o. Sh. Balbir Singh,
R/o. VPO Miani, Tehsil Dasuya,
District Hoshiarpur, Punjab. ............PETITIONER
VERSUS
CBI .........RESPONDENT
Date of Institution : 06.10.2021
Date of reserving order : 21.10.2021
Date of pronouncement : 25.10.2021
Decision : Petition is allowed.
ORDER
1. Vide this order, I shall decide present revision petition, preferred against order dated 08.04.2021 passed by trial court in a case titled as CBI v. Lovepreet Singh, bearing CBI Case No. 2(S)/2018-CBI/SC-I/New Delhi. Vide impugned order dated 08.04.2021, trial court dismissed an application moved on behalf of petitioner Sh. Lovepreet Singh for surrender of old passport Page 1 of 14 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, RADC, New Delhi Criminal Revision No. 20/2021 and release of new passport as well as deletion of LOC and for NOC for travel abroad.
BRIEF FACTS OF THE CASE:-
2. Briefly stated, the relevant facts giving rise to the present revision petition is that a case was registered by the CBI on 31.03.2018, on the basis of source information against accused Ms. Rachna David, Sh. Sandeep Singh Luthra, Sh. Amit Jyot Singh, Rohit Gauba, Anshika Matharu and other unknown persons, for offences punishable under Section 120-B r/w 420, 467, 468, 471, 370 r/w 511 IPC. As per allegations of the CBI, on 26.05.2017 Ms. Rachna David alongwith a group of 11 teen aged boys from Punjab and Haryana including the present petitioner, had appeared before the United States Embassy in New Delhi for obtaining non-immigrant visa, claiming herself to be the leader of the group of that 11 teen aged boys going on an educational trip to the United States. Ms. Rachna David entered into a criminal conspiracy with four accused officials of M/s. AAI EDUTOURZ New Delhi, namely Sandeep Singh Luthra and Amit Jyot Singh being Directors, Rohit Gauba being Associate Director and Anshika Matharu being Operations Co-ordinator, who were involved in human trafficking of the aforesaid 11 teen aged boys to USA. They submitted forged and fabricated documents in support of their visa petitions claiming that accused Ms. Rachna David was working as Principal of Montessori Cambridge School, Pathankot, Punjab and those 11 boys were students of the said school and they were going to New York Niagara Falls and Orlando on an educational tour. The forged and Page 2 of 14 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, RADC, New Delhi Criminal Revision No. 20/2021 fabricated documents were submitted by the above named accused in order to fraudulently obtain USA visa for the purpose of trafficking of the 11 boys to the USA. The petitioner is one of the above mentioned 11 boys, who were allured by the said Rachna David and her associate namely R.P. Singh of Jallandhar by promising them to provide the genuine USA visa on their genuine passports. The 11 boys including the present petitioner were kept in a hotel at Naraina, New Delhi and were coached to tell lies during their visa interviews. The accused persons allegedly charged 30-40 lakhs per person from the families of the 11 boys. It is also alleged that the 11 boys including the present petitioner appeared before the US Embassy, Chanakyapuri for visa interview on 26.05.2017 on the basis of fake and forged documents. They were prepared/ tutored by the accused persons to be and behave as if they were students of Montessori Cambridge School, Pathankot, Punjab and as if they were going to USA on educational tour. However, they were not the students of this school. On being suspicious, Visa Officer at the US Embassy, Chankyapuri seized their Passports in original and other documents submitted by them and handed over them along with Ms. Rachna David to the Chankyapuri Police Station.
Whereas, all the documents including passports of petitioner, were kept by US Embassy, which were in due course taken over by CBI.
3. During investigation, searches were conducted in the premises of FIR named accused persons and a large number of incriminating documents/ articles were recovered. During investigation, Page 3 of 14 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, RADC, New Delhi Criminal Revision No. 20/2021 petitioner Lovepreet Singh was caught by Visa Officer of US Embassy on suspicious replies given by him. The case is under investigation.
4. That the passport of the petitioner expired on 30.07.2018 and the same was required for showing the same to the concerned RPO for making a fresh passport in lieu of the same. Thereafter, petitioner moved an application before Ld. CMM, RADC, New Delhi, for release of passport on 25.11.2019 and the same was allowed with certain conditions. As per letter received by the petitioner from RPO, the concerned RPO had issued a fresh passport bearing No. U-8093602 to the petitioner but the same was handed over to the IO concerned by the Passport Authorities as directed by Ld. CMM vide its order dated 25.11.2019 and petitioner was intimated about the same vide letter dated 16.02.2021. Thereafter, on 09.03.2021 petitioner moved an application for surrender of old passport (since expired) and for release of new/fresh passport as well as deletion of LOC and for NOC for travel abroad before Ld. CMM, which was dismissed by ld. CMM, vide the impugned order dated 08.04.2021.
GROUNDS:-
5. Being aggrieved of the impugned order, Sh. Lovepreet Singh has filed present revision petition mainly on the following relevant grounds :-
A. Ld. CMM failed to appreciate that the petitioner has not been named as accused in the present case till date.
B. Ld. CMM did not appreciate the fact that Article 21 of the Page 4 of 14 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, RADC, New Delhi Criminal Revision No. 20/2021 Constitution specifically provides that no person should be deprived of his right to travel except according to the procedure established by law.
C. Ld. CMM failed to appreciate that right to life and personal liberty includes the right to travel abroad. In the present case also, the passport of the petitioner cannot be withheld by the CBI on the mere apprehension/probability that the petitioner would leave the Country. CBI does not have any right or authority to do that.
D. Ld. CMM failed to appreciate that the fresh passport of the petitioner is not the case property and the same is not required by CBI for any purpose whatsoever and the petitioner needs the same as he has to travel abroad in near future.
E. Ld. CMM did not appreciate that in the present case the petitioner is not even an accused and the petitioner is being deprived of his right to personal liberty as well as right to freedom and his passport is being retained by the respondent without any rhyme and reason.
F. Ld. CMM failed to appreciate that there is a difference between seizure of the passport U/s 102 (1) of Cr.P.C. and impounding of the same. (Ref. Suresh Nanda v. CBI) The passport has not been impounded by the passport authorities but same has been simply taken off by CBI.
G. Ld. CMM failed to appreciate correctly in observing that if the passport is released, petitioner would flee out of India and he may not face the trial.Page 5 of 14 (Pulastya Pramachala)
Special Judge (PC Act) CBI-13, RADC, New Delhi Criminal Revision No. 20/2021 H. Ld. CMM failed to appreciate the observations made in the celebrated judgment of Hon'ble Apex Court in a case titled as Suresh Nanda Vs. CBI 2008 (1) JCC 414, wherein it has been observed by the bench of Justice P.P. Naolekar and Markande Kartju, that -
"15. 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 a passport is provided for in Section 10(3) of the Passports Act. The 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". The Hon'ble Court also made it clear that by impounding a document it means that 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.
The said case law was decided relying upon the celebrated judgment of Satwant Singh Sawhani v. D. Ramarathnam, Page 6 of 14 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, RADC, New Delhi Criminal Revision No. 20/2021 wherein it was observed that -
"1: For the reasons mentioned above, we would accept the view of Kerala, Bombay and Mysore High Courts in preference to that expressed by the Delhi High Court. It follows that under Article 21 of the Constitution no person can be deprived of his right to travel except according to procedure established by law. It is not disputed that no law was made by CBI regulating or depriving persons of such a right.
5. A similar view is reiterated in the decision rendered by 7-Judge Bench of this Court in Maneka Gandhi Vs. Union of India and another (1978) 1 SCC 248, wherein at page 280, it was held as under:
......Now, it has been held by this Court in Satwant Singh's case (supra) that 'personal liberty' within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law. Prior to the enactment of the Passports Act, 1967, there was no law regulating the right of a person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to the petitioner in Satwant Singh's case (supra) was struck down as invalid. It will be seen at once from the language of Article 21 that the protection it secures is a limited one. It safeguards the right to go abroad against executive interference which is not Page 7 of 14 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, RADC, New Delhi Criminal Revision No. 20/2021 supported by law; and law here means enacted law or 'State law' (Vide A.K. Gopalan's case). Thus, no person can be deprived of his right to go abroad unless there is a law made by CBI prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure...."
I. The impugned order is based on conjecture and surmises and against the establish principles of natural justice. The order is full of arbitrariness and is not reasonable at all.
J. That the impugned order passed by Ld. CMM is not only contrary to law and facts on record but has resulted into a gross miscarriage of justice.
6. Ld. counsel for petitioner also submitted that there is a delay of approx. 175 days in filing the present revision petition due to the condition of pandemic Covid-19 and also due to closure of courts. Ld. counsel for petitioner further submitted that the petitioner has not filed any other Revision Petition or any other proceedings against the impugned order earlier either before this Hon'ble Court or before the Hon'ble High Court of Delhi at New Delhi or the Hon'ble Supreme Court of India. Ld. counsel for petitioner prayed for setting aside the impugned order as well for release of the new passport of the petitioner.
7. In his reply to the present petition, CBI filed parawise reply, relevant part of which are as under: -
A. With reference to Para Nos. 4. 5 & 6, of the petition, CBI submitted that the petitioner has admitted himself that he Page 8 of 14 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, RADC, New Delhi Criminal Revision No. 20/2021 indulged into getting of USA Visa in criminal conspiracy with agent Ms. Rachna David and her associate namely R.P Singh of Jalandhar.
CBI further submitted that petitioner had written on a Frequently Asked Question (FAQ) sheet during the preparation for US visa interview. The petitioner Lovepreet Singh had wrongly mentioned the profession of his father in Frequently Asked Question (FAQ) Sheets as Major in Indian Army, whereas his father Shri Balbir Singh was Agriculturist during the relevant time. At present his father Shri Balbir Singh is residing at New York, USA and doing the work of a carpenter.
CBI further submitted that during interaction/ interview at the US Embassy at Chanakyapuri, Delhi on 26.05.2017 for visa, the visa officials got suspicious and detected that some false and fabricated records were submitted in relation to their visa The petitioner Lovepreet Singh and other 10 students were asked to make voluntary statements by them and they accordingly made/ submitted the statements to them.
B. With reference to para no. 7 of the petition, CBI submitted that the investigation of this case is going on and the above said passport of the petitioner Lovepreet Singh is a clinching piece of evidence. CBI further submitted that the petitioner Lovepreet Singh has committed an offence and attempted to go USA on the strength of fake and forged documents. CBI further submitted that the FIR is not a complete encyclopaedia and rather just an instrument to set the law in Page 9 of 14 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, RADC, New Delhi Criminal Revision No. 20/2021 motion.
C. With reference to Para No. 11 of the petition, CBI submitted that the IO is not in receipt of the letter from Regional Passport Officer (RPO), as mentioned in the petition.
D. CBI further submitted that a letter No. 5277, dated 06.12.2019, was sent to RPO. Regional Passport Office.
Ambika Towers. Police Line Road, Jalandhar 144 001 (Punjab), enclosing therein a copy of the order, dated 25.11.2019 passed by the Ld Court of Chief Metropolitan Magistrate (CMM), Rouse Avenue District Court Complex, New Delhi, alongwith a copy of FIR No. 2(S)/2018 of CBI, Special Crime I, New Delhi, registered u/s. 120-B r/w 420 467 468 471, 370 r/w 511 of IPC, requesting therein to take actions strictly as per law/ rule.
E. RPO Jallandhar was sent two reminders vide this office letter Nos (i) 1717/2(S)/2018/CBI/SC-I/New Delhi dated 26.07.2021 and (ii) 2925/2(S)/2018/CBI/SC-I/New Delhi, dated 11.10.2021, intimating therein that a considerable period has already elapsed but till date action taken by their office in respect of above mentioned letters has not been intimated to the IO of the case. Vide the above mentioned letters, RPO, Jallandhar has been requested to direct the concerned officer to intimate the IO about action taken in the matter in compliance of the above mentioned order, dated 25.11.2019.
F. In reply to Para No. 12 of the petition, CBI submitted that the Page 10 of 14 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, RADC, New Delhi Criminal Revision No. 20/2021 petitioner has neither specified the name of country where he wants to go nor the time duration to travel abroad. He has not mentioned his specific purpose to travel abroad. However, if he is allowed to go abroad there is every chance that he may run away from the investigation of this case as the petitioner has prayed that he needs new Passport to travel abroad and hence the petitioner has made his intentions clear that he intends to run away from the investigation.
G. In his reply, CBI also submitted that the old Passport of the petitioner was seized by the competent authority of US Embassy and after registration of a case by CBI on the basis of source information, said passport was received by CBI from the US Embassy. Father of the petitioner was called to join investigation, however, till date he has not joined the investigation. It was reported that the father of petitioner is presently settled in USA.
H. That the petitioner Lovepreet Singh may kindly be directed to handover the old passport No. M 1901428 to CBI in the light of the order, dated 25.11.2019 passed by this Hon'ble Court, as it is a document.
I. That on 16.05.2019, the Hon'ble Court of CMM, Rouse Avenue Courts, New Delhi passed an order in the matter of Akashdeep Singh directing IO to furnish photocopy of new/ renewed passport to the petitioner after same is handed over by the concerned passport authority to IO.
J. That the investigation of this case is going on and the above Page 11 of 14 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, RADC, New Delhi Criminal Revision No. 20/2021 said passport of the petitioner Lovepreet Singh is a clinching piece of evidence. The passport of petitioner Lovepreet Singh received by the CBI from US Embassy alongwith new passport of the petitioner are the case property and would be required for investigation and the same may not be released to the petitioner Lovepreet Singh at this stage. Investigating Agency has all the apprehension that if Passport is released then petitioner may evade from the investigation of present case and from the clutches of law, as he has to go abroad as mentioned in Para No. 12 of the petition.
APPRECIATION OF ARGUMENTS, FINDINGS AS WELL AS DECISION :-
8. Ld. counsel for petitioner argued on the same line of grounds as taken in the petition, except regarding LOC or NOC. He argued that in this case, CBI is not entitled to impound the new passport of the petitioner. Per contra, ld. P.P. for CBI argued that new passport should not be released to the petitioner, as he will flee away from justice. IO submitted that investigation is almost complete in this case and final report shall be filed soon.
9. During hearing in this matter, petitioner handed over his old passport to the IO, under directions of this court. Thus, the old passport of the petitioner, which was seized by IO in this case initially on the grounds of same being a piece of evidence having been submitted to US embassy for obtaining visa, stands handed over to IO. At present, the controversy relates to new passport issued to the petitioner. CBI wants to retain it with them and has opposed releasing the same to the petitioner, on the apprehension Page 12 of 14 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, RADC, New Delhi Criminal Revision No. 20/2021 that petitioner shall flee away.
10. A question was put to the IO as well as to ld. P.P., so as to explain the law under which CBI intended to withheld the new passport and forbid movement of the petitioner. However, they could not cite any legal provision. They were also called upon to make their submissions in the backdrop of cited observations of Supreme Court in the case of Suresh Nanda (supra). However, once again they failed to make any submission and to make out a ground to withheld the new passport. Though, in the reply IO claimed that new passport is also a case property in this case, but such plea, on the face of it, is erroneous. This new passport came into existence much after commission of the alleged offences. It cannot have any relation with the alleged offences. Hence, it cannot be treated as case property in this case. Therefore, it becomes important to appreciate the enabling law for CBI to justify withholding the new passport. As already mentioned herein above, IO or ld. P.P. could not cite any enabling law. On the other hand observations made by Supreme Court in the case of Suresh Nanda (supra) leave no doubt that neither CBI nor any court are empowered to impound the new passport of the petitioner. In these circumstances, I do find that impugned order passed by the trial court cannot stand the test of law, so as to deny release of the same to the petitioner. Hence, revision is allowed and impugned order is set aside. However, CBI shall be at liberty to forward relevant information to the RPO for the purpose of impounding of the passport. Since, IO has taken plea that he has not received the new passport of the petitioner till Page 13 of 14 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, RADC, New Delhi Criminal Revision No. 20/2021 date, therefore, petitioner herein shall be at liberty to approach RPO to get his new passport. However, if the new passport is received by IO or any other official of CBI, then it shall be their duty to hand over the same to the petitioner immediately, under intimation to THE RPO.
11. As far as LOC or NOC to travel abroad are concerned, no specific plea was taken before me regarding the same by ld.
counsel for petitioner. Even reply of IO is silent in respect of the existence of LOC. Therefore, I cannot pass any order regarding the same. If any LOC is in existence, petitioner shall be at liberty to approach the trial court, with his plea and trial court shall pass order on the basis of applicable law. Question of NOC for travel abroad is related with the existence of LOC, if any. Therefore, that question shall also be decided by the trial court, on the basis of specific plea of petitioner, if any, and the applicable law.
12. TCR be sent back along with copy of this order to the trial court.
A copy of this order be also sent to IO/CBI for compliance. File be consigned to record room, as per rules.
Digitally signed byPULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2021.10.25 15:08:33 +05'30' Announced in the open court (PULASTYA PRAMACHALA) today on 25.10.2021 Special Judge (PC Act) CBI-13, (This order contains 14 pages) RADC, New Delhi.
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