Delhi District Court
Directorate Of Revenue Intelligence vs Nilofel Ovallath Karinthlia on 24 August, 2021
IN THE COURT OF SH. PARVEEN SINGH,
ADDL. SESSIONS JUDGE - 03 (NEW DELHI )
PATIALA HOUSE COURTS : NEW DELHI
CR No. 208/2021.
Directorate of Revenue Intelligence,
Headquarters,
New Delhi. ....Revisionist.
Versus
Nilofel Ovallath Karinthlia,
S/o Sh. Kader,
r/o Qiswa, IX/460A, Chokli Post,
East Palloor, Mahe, Puducherry,
Puducherry670672. .....Respondent.
Date of Institution : 13.07.2021.
Date of Arguments : 24.08.2021.
Date of Pronouncement : 24.08.2021.
ORDER
The present is a revision u/s 397 r/w section 399 Cr.P.C filed against order dated 02.07.2021 passed by the court of Ld. CMM, New Delhi.
2. The brief facts as per the petition are, that DRI had received a CR No. 208/2021 (Parveen Singh) Page No. 1 of 13 ASJ03/NDD/PHC:24.08.2021 specific information that on 06.10.2020, Janeesh Kumar, Athif Nisa Manzil and Janish K.S would be coming towards Delhi from Lucknow and would be carrying smuggled gold bars/ cut piece/ biscuits in a steel grey color Innova Car bearing registration no. DL7CN 8697. On the basis of this information, DRI intercepted a steel grey color Innova car bearing registration no. DL 7CN 8697 at Jewar Toll Plaza. Three persons namely Janeesh Kumar, Athif Manzil and Janish K.S were sitting in that car. Notice u/s 106 Customs Act for search of vehicle was served upon Janeesh Kumar and notices u/s 102 Customs Act were served upon Athif Nisa Manzil, Janish KS and Janeesh Kumar. From the said car, two rectangular packets covered by black adhesive tape were recovered. On opening the packets, 25 rectangular shaped yellow coloured metal pieces were recovered. All the 25 pieces were weighing approximately 4150 grams. On being asked, the aforesaid persons could not produce any document/ other proof for possessing these 25 yellow metal pieces. Thereafter, the recovered goods i.e. 25 gold biscuits having market value of Rs.2,07,31,740/ were seized. The statements of above named three persons were recorded in which they named one Shamsher at whose instance, they were dealing with the smuggled gold. On 08.10.2020, the said three persons were arrested. On 10.10.2020, Shamsher T was arrested and in his statement, he revealed that he had been dealing with smuggled gold at the instance of Nilofel and had also revealed that the instructions regarding receipt and delivery of the gold CR No. 208/2021 (Parveen Singh) Page No. 2 of 13 ASJ03/NDD/PHC:24.08.2021 were given to him by Nilofel. Shamsher T had also revealed that he and Nilofel had sold the smuggled gold to one Rinku, whose shop is situated in Chandni Chowk. On 28/29.10.2020, statement u/s 108 Customs Act of Nilofel was recorded wherein he denied all the allegations. On the basis of evidence, on 29.10.2020, Nilofel was arrested. During investigation, one Sadanandan KM was arrested who stated that Nilofel OK was the mastermind and financier of this smuggling syndicate and stated that Nilofel OK transferred Rs.2 lacs to his account in the month of July 2020. During the proceedings, the respondent had moved an application seeking permission to go abroad and for release of his passport. Vide order dated 10.03.2021, the said application was dismissed. Thereafter, another application seeking release of passport was moved and vide order dated 02.07.2021, ld. CMM had allowed the application for release of passport. Hence, the present revisio petition against the said order.
3. The grounds taken in revision petition are, that on 10.03.2021, plea of the respondent to go abroad and release of passport was dismissed. At the time of passing the impugned order, there was no change in circumstances. In his application, the respondent had not disclosed any reasons as to why he needs the passport. Ld. CMM had not dealt with all the averments raised by the revisionist in its reply dated 01.07.2021. It is further submitted that the respondent has almost entire interest outside India and thus, the department had opened an LOC against the respondent and he CR No. 208/2021 (Parveen Singh) Page No. 3 of 13 ASJ03/NDD/PHC:24.08.2021 was detained by the Immigration officers while he was trying to flee from India. Thus, the department has an apprehension that if the passport of the respondent is released, he may flee from country. Ld. CMM did not appreciate the fact that the adjudication proceedings are pending with adjudicating authority in this case. It is further submitted that the impugned order is virtually a review of order dated 10.03.2021 which is not permissible.
4. Reply to the revision petition has been filed wherein it is submitted that the respondent is a permanent citizen of India and is running a chain of restaurants under the name of Thalassery Restaurant having its branches at Bengaluru, Trivendrum, Coimbatore and New Delhi. It is a settled law that passport can only be impounded by the passport authorities under Passport Act and thus, the present revision petition is nothing but an abuse of process of the court. It is further submitted that the Ld. CMM had passed the impugned order in view of the law laid down by the Hon'ble Apex Court in Suresh Nanda v. CBI, 2008 SCC Online SC 168 wherein it is clearly stated that impounding of a passport can only be done by Passport Authority under section 10(3) of Passport Act. Various High Courts of India have also upheld that passport can only be seized by the Passport Authorities. It is further submitted that after grant of bail by ld. CMM, the applicant had never tried to interfere or attempted to interfere with the due course of administration of justice. Thus, the applicant/ accused does not CR No. 208/2021 (Parveen Singh) Page No. 4 of 13 ASJ03/NDD/PHC:24.08.2021 have the propensity to evade the process of law. It is further submitted that no condition was imposed upon the respondent that he will seek prior permission of the court before leaving the country. It is further submitted that till date, the bail order of the respondent has not been challenged by the revisionist which shows that the revisionist also knows that the respondent is not on any flight risk. It is further submitted that it is averred that the respondent was detailed in furtherance of LOC. However, no summon was issued to the respondent by the revisionist and despite this fact, LOC was issued against the respondent. It is further submitted that the investigation in the present case has been completed.
5. Rejoinder to the reply of the respondent has been filed by the revisionist wherein the averments made in the revision petition are reiterated. Further, it is submitted that the revisionist has filed a complaint against the respondent before Ld. CMM on 18.08.2021 and the presence of the respondent would be required in the court for personal hearing during the cross examination.
6. I have heard Sh. Satish Agarwala, ld. SPP for revisionist as well as Sh. Gaurav Prakash, ld. Counsel for the respondent and perused the record very carefully.
7. Ld. SPP has contended that first of all, there was no occasion to release the passport as the passport had not been impounded by the revisionist. In fact, the respondent had voluntarily surrendered the passport CR No. 208/2021 (Parveen Singh) Page No. 5 of 13 ASJ03/NDD/PHC:24.08.2021 on 29.10.2020 and therefore, once it was voluntarily surrendered, it cannot be said to be impounded. He has further contended even if it was seized by the revisionist, it cannot be said to be impounding as it was merely a seizure of the document. He has further contended that even if it is to be considered to be seized, this court has no jurisdiction as the only a writ petition against the said order lies. He has further contended that first and foremost the respondent has to state before the court as to why he needs the passport as the passport is only a document for travelling outside India. This makes very clear that respondent intends to travel abroad by using that passport otherwise it is of no use to the respondent and respondent has not answered this question and the respondent may be asked in the court to answer this question. He has further contended that there is an apprehension that respondent may flee from country.
8. Per contra, ld. Counsel for respondent has contended that there is no infirmity or illegality in the order of the ld. Trial court. He has further contended that the impugned order cannot be said to be the review of the earlier order as vide the earlier order, copy of which has been placed on record by the revisionist, only the permission to go abroad to the respondent was declined and no finding was given with regard to the prayer for release of passport. He has further contended that merely because the revisionist has not used the word 'impounding' it cannot be said that the passport has not been impounded especially the long period for which, after CR No. 208/2021 (Parveen Singh) Page No. 6 of 13 ASJ03/NDD/PHC:24.08.2021 the seizure, the revisionist has kept the passport, it amounts impounding as has been clearly defined by Hon'ble Supreme Court in Suresh Nanda (supra). He has further contended that in view of the judgment of Hon'ble Supreme court in Suresh Nanda (supra) and M. Khaja Mhaideen v. The Senior Intelligence Officer Directorate of Revenue Intelligence Regional Unit No. 1288 2012 SCC Online Mad 4672, it is very clear that the revisionist has no powers to withhold the passport of the respondent and thus, there was no infirmity or illegality in the order of ld. Trial court.
9. I have considered the rival submissions very carefully and gone through the impugned order.
10. The first contention raised on behalf of the revisionist is, that the impugned order is review of the earlier order dated 10.03.2021 whereby the application of the respondent seeking permission to go abroad and release of passport had been dismissed.
11. I have perused the order dated 10.03.2021. It is an order which has not been passed on merits of the case and the ld. Trial court in the operating part had observed "considering the submissions made on behalf of the department, no ground made out for grant of permission to go abroad to applicant at this stage." Therefore, it is very much clear that ld. Trial Court while declining the permission to go abroad, did not give any finding on the prayer of release of passport. Thereafter, the impugned order was passed. It is a detailed order and it was only on the issue of release of CR No. 208/2021 (Parveen Singh) Page No. 7 of 13 ASJ03/NDD/PHC:24.08.2021 passport. Therefore, it cannot be said to be a review of the earlier order.
12. The next contention raised on behalf of the revisionist is, that the passport of the revisionist has not been impounded by the revisionist and it was voluntarily surrendered by the respondent, therefore, there is no question of release of passport, which had been voluntarily surrendered.
13. Even if the argument raised on behalf of the revisionist, that the passport was voluntarily surrendered by the respondent, is accepted; his permission, which he had given by voluntary surrender, has been revoked and the revisionist was bound to return this passport. As the revisionist has not done so and rather opposed the release of passport, it cannot be said to be a case of voluntary surrender.
14. With regard to the argument that the passport has not been impounded, I find that for deciding that whether the passport has been seized or impounded, the finding of Hon'ble Supreme Court in Suresh Nanda (supra) is a guiding light wherein it was held as under:
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.
CR No. 208/2021
(Parveen Singh)
Page No. 8 of 13 ASJ03/NDD/PHC:24.08.2021
15. Admittedly, the passport was taken into custody by DRI on 29.10.2020. It has been almost an year that DRI has been in possession of that passport despite the respondent admittedly withdraw his alleged permission to withhold his passport. That being the case, in view of the judgment of Hon'ble Supreme Court in Suresh Nanda (supra), it is very clear that this is an act of impounding the passport.
16. That being the case, the next question which arises is, whether the revisionist had power to impound the passport? The answer has again been given in the judgment of Hon'ble Supreme Court in Suresh Nanda (supra), wherein Hon'ble Supreme court had held as under:
9. Impound means to keep in custod y of the law.
There must be some d istinct action which will show that d ocuments or things have been impound ed . Accord ing to the Oxford Dictionary impound means to take legal or formal possession. In the present case, the passport of the appellant is in possession of CBI right from the d ate it has been seized by the CBI. When we read Section 104 of Cr.P.C. and Section 10 of the Act together, und er Cr.P.C., the Court is empowered to impound any d ocument or thing prod uced before it whereas the Act speaks specifically of impound ing of the passport.
10. Thus, the Act is a special Act relating to a matter of passport, whereas Section 104 of the Cr.P.C. authorizes the Court to impound d ocument or thing prod uced before it. Where there is a special Act d ealing with specific subject, resort should be had to that Act instead of general Act provid ing for the matter connected with the specific Act. As the Passports Act is a special act, the rule that general CR No. 208/2021 (Parveen Singh) Page No. 9 of 13 ASJ03/NDD/PHC:24.08.2021 provision should yield to the specific provision is to be applied . See : Damji Valaji Shah & another Vs. L.I.C. of Ind ia & others [AIR 1966 SC 135]; Gobind Sugar Mills Ltd . Vs. State of Bihar & others [1999(7) SCC 76]; and Belsund Sugar Co. Ltd . Vs. State of Bihar and others [AIR 1999 SC 3125].
11. The Act being a specific Act whereas Section 104 of Cr.P.C. is a general provision for impound ing any d ocument or thing, it shall prevail over that Section in the Cr.P.C. as regard s the passport. Thus, by necessary implication, the power of Court to impound any d ocument or thing prod uced before it would exclud e passport.
12. In the present case, no steps have been taken und er Section 10 of the Act which provid es for variation, impound ing and revocation of the passports and travel d ocuments. Section 10A of the Act which provid es for an ord er to suspend with immed iate effect any passport or travel d ocument; such other appropriate ord er which may have the effect of rend ering any passport or travel d ocument invalid , for a period not exceed ing four weeks, if the Central Government or any d esignated officer on its satisfaction hold s that it is necessary in public interest to d o without prejud ice to the generality of the provisions contained in Section 10 by approaching the Central Government or any d esignated officer. Therefore, it appears that the passport of the appellant cannot be impound ed except by the Passport Authority in accord ance with law. The retention of the passport by the respond ent (CBI) has not been d one in conformity with the provisions of law as there is no ord er of the passport authorities und er Section 10(3)(e) or by the Central Government or any d esignated officer und er Section 10A of the Act to impound the passport by the respond ent exercising the powers vested und er the Act.
CR No. 208/2021
(Parveen Singh)
Page No. 10 of 13 ASJ03/NDD/PHC:24.08.2021
13. Learned Ad d itional 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 und er circumstances which create suspicion of the commission of any offence.
14. In our opinion, while the police may have the power to seize a passport und er Section 102(1) Cr.P.C, it d oes not have the power to impound the same. Impound ing of a passport can only be d one by the passport authority und er Section 10(3) of the Passports Act, 1967.
15. It may be mentioned that there is a d ifference between seizing of a d ocument and impound ing a d ocument. A seizure is mad e 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 d one at a particular moment of time. However, if after seizing of a property or d ocument the said property or d ocument is retained for some period of time, then such retention amounts to impound ing of the property/or d ocument. In the Law Lexicon by P. Ramanatha Aiyar (2nd Ed ition), the word impound has been d efined to mean to take possession of a d ocument or thing for being held in custod y in accord ance with law. Thus, the word impound ing really means retention of possession of a good or a d ocument which has been seized .
16. Hence, while the police may have power to seize a passport und er Section 102 Cr.P.C. if it is permissible within the authority given und er Section 102 of Cr.P.C., it d oes not have power to retain or impound the same, because that can only be d one by CR No. 208/2021 (Parveen Singh) Page No. 11 of 13 ASJ03/NDD/PHC:24.08.2021 the passport authority und er Section 10(3) of the Passports Act. Hence, if the police seizes a passport (which it has power to d o und er 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 d eserves to be impound ed for one of the reasons mentioned in Section 10(3) of the Act. It is thereafter the passport authority to d ecid e whether to impound the passport or not. Since impound ing of a passport has civil consequences, the passport authority must give an opportunity of hearing to the person concerned before impound ing his passport. It is well settled that any ord er which has civil consequences must be passed after giving opportunity of hearing to a party vid e State of Orissa Vs. Binapani Dei [Air 1967 SC 1269].
17. In the present case, neither the passport authority passed any ord er of impound ing nor was any opportunity of hearing given to the appellant by the passport authority for impound ing the d ocument. It was only the CBI authority which has retained possession of the passport (which in substance amounts to impound ing it) from October, 2006. In our opinion, this was clearly illegal. Und er Section 10A of the Act retention by the Central Government can only be for four weeks. Thereafter it can only be retained by an ord er of the Passport authority und er Section 10(3).
17. The aforesaid legal proposition as laid down by Hon'ble Supreme Court is a binding legal proposition according to which, the power to impound a passport is only available to the Passport Authority and thus, the act of withholding a passport which amounts to impounding of passport by the revisionist, as has been found above, is not sustainable under law. If at all the revisionist found that there was a valid ground for impounding of CR No. 208/2021 (Parveen Singh) Page No. 12 of 13 ASJ03/NDD/PHC:24.08.2021 the passport, the matter should have been referred to the Passport Authority which has powers to impound the passport but the revisionist cannot keep on holding on to that passport without taking recourse to the legal procedure.
18. With regard to the contention that the respondent may be asked as to why he needs his passport, I find that this is a question which the revisionist has no right to ask especially when the revisionist has no right to impound on to the passport. It is a question which can only be raised if the revisionist or the court has right to impound the passport of the respondent. However, this right is neither available to the revisionist nor to the court as has been held by Hon'ble Supreme Court in Suresh Nanda (supra).
19. In view of my above discussion, I do not find any illegality or infirmity in the impugned order. The revision petition is accordingly dismissed. File be consigned to record room. Copy of order be sent to the trial court.
Announced in open court (Parveen Singh)
today on 24.08.2021 ASJ03, New Delhi Distt.,
(This order contains 13 pages Patiala House Court, Delhi.
and each page bears my signatures.)
CR No. 208/2021
(Parveen Singh)
Page No. 13 of 13 ASJ03/NDD/PHC:24.08.2021