Andhra Pradesh High Court - Amravati
Ganni Bhaskara Rao vs The Union Of India on 8 April, 2022
1
* HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU
+ WRIT PETITION No.220 of 2022
% 8th April, 2022
# Ganni Bhaskara Rao
... Petitioner..
AND
$ The Union of India and another
... Respondents.
! Counsel for the Petitioner : Sri K. Chidambaram
^ Counsel for the respondents : Sri Krishna Bushan Chowdary
< Gist:
> Head Note:
? Cases referred:
1) AIR 1978 SC 597
2) 2019 SCC OnLine SC 2048
2
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
WRIT PETITION No.220 of 2022
ORDER:
This Writ Petition is filed seeking a mandamus questioning the action of the 2nd respondent in retaining the petitioner's passport bearing No.Z6412398 vide surrender Certificate dated 01.12.2021.
This Court has heard Sri K.Chidambaram, learned counsel for the petitioner. He points out that the petitioner is the Chairman of a private medical college. He had a passport, which was valid till March, 2022. Thereafter, he made an application for renewal of the passport, and a new passport bearing No.Z6412398 was issued to the petitioner on 03.09.2021. The petitioner travelled abroad with his new passport and returned to India in the month of November, 2021. A show cause notice was issued to the petitioner stating that the respondents received an adverse police verification report against him. At request of respondents, the petitioner surrendered his passport on 01.12.2021 and the same was acknowledged by the 2nd respondent vide surrender certificate dated 01.12.2021. Learned counsel for the petitioner argues on the basis of case law that the existence of the criminal cases is not a ground to seek surrender of the passport or not to renew the passport. Learned counsel submits that Section 6 of the Passport Act deals with the initial issue of passports and does not deal with the "renewal" of existing passport. He relies 3 upon the judgments of the Karnataka and Delhi High Courts, which are reported in W.P.No.9141 of 2020 of Karnataka High Court and Crl.A.No.686 of 2018 of High Court of Delhi, and the judgment of the Supreme Court of India in Criminal Appeal No.1342 of 2017. Learned counsel argues that in that case before the Hon'ble Supreme Court of India the person was convicted of an offence and the conviction was stayed. Even then the Hon'ble Supreme Court of India held that renewal of a passport cannot be kept pending. Learned counsel, therefore, argues that the respondents cannot retain the renewed passport or demand its surrender only on the ground that there are adverse police cases against the petitioner.
In reply to this Sri Krishna Bushan Chowdary, learned counsel for the 2nd respondent, argues that action taken by the respondents is correct. He points out that there are at least four cases pending trial against the petitioner and the 5 th case is under investigation. All of these are listed in paragraph 4 of the counter affidavit. Learned counsel submits that this is a case of suppression of information, since the petitioner did not bring these facts to the notice of the authorities when he sought for renewal. He also argues that the petitioner surrendered his passport. The last submission of the learned counsel is that the passport can be processed only under the GSR 570(E). He draws the attention of this Court to the judgments passed by the coordinate Benches of this Court in W.P.No.17993 of 2021 to argue that similar procedure must be followed. 4
This Court after hearing both the learned counsel notices that the Hon'ble Supreme Court of India, in Criminal Appeal No.1342 of 2017, was dealing with a person, who was convicted by the Court and his appeal is pending for decision in the Supreme Court. The conviction was however stayed. In those circumstances also it was held that the passport authority cannot refuse the "renewal" of the passport.
This Court also holds that merely because a person is an accused in a case it cannot be said that he cannot "hold" or possess a passport. As per our jurisprudence every person is presumed innocent unless he is proven guilty. Therefore, the mere fact that a criminal case is pending against the person is not a ground to conclude that he cannot possess or hold a passport. Even under Section 10 (d) of the Passports Act, the passport can be impounded only if the holder has been convicted of an offence involving "moral turpitude" to imprisonment of not less than two years. The use of the conjunction 'and' makes it clear that both the ingredients must be present. Every conviction is not a ground to impound the passport. If this is the situation post-conviction, in the opinion of this Court, the pendency of a case / cases is not a ground to refuse, renewal or to demand the surrender of a passport.
The second issue here in this case is about the applicability of Section 6(2)(e) of the Passport Act. In the opinion of this Court that section applies to issuance of a fresh passport and not for renewal of a passport. It is also clear from 5 GSR 570(E) which is the Notification relied upon by the learned counsel for the respondents and is referred to in the counter affidavit. This Notification clarifies the procedure to be followed under Section 6 (2) of the Passport Act against a person whom the criminal cases are pending. This notification permits them to approach the Court and the Court can decide the period for which the passport is to be issued. This is clear from a reading of the Notification issued. Clause (a) (i) states if no period is prescribed by the Court the passport should be issued for one year. Clause (a) (ii) states if the order of the Court gives permission to travel abroad for less than a year but has not prescribed the validity period of the passport, then the passport should be for one year. Lastly, Clause (a) (iii) states if the order of the Court permits foreign travel for more than one year but does not specify the validity of the passport, the passport should be issued for the period of travel mentioned in the order. Such a passport can also be renewed on Court orders. Therefore, a reading of GSR 570(E) makes it very clear that to give exception or to exempt applicants from the rigour of Section 6 (2)(f) of the Act, GSR 570(E) has been brought into operation. The issuance of the passport and the period of its validity; the period of travel etc., are thus under the aegis of and control of the Court.
If the present case is examined it is clear that already a passport was issued to the petitioner and on its expiry a fresh passport was reissued. The show cause notice was issued to 6 the petitioner to which he gave reply and thereafter the passport was surrendered as evidenced by the surrender certificate. Thus, this is not a case of "impounding". If a person convicted of a crime is entitled to seek a renewal as held by the Hon'ble Supreme Court of India, this Court does not find any reason to hold that the petitioner who is only an accused cannot hold a passport. Therefore, the 2nd respondent is directed to immediately give back the passport bearing No. Z6412398 to the petitioner. In the opinion of this Court, the passport cannot be retained only on the ground that there are criminal cases pending.
If the suppression of this information, in the opinion of the respondents, is serious and merits action they should give the petitioner a notice, as per the applicable law / regulations etc., consider his explanation and then decide the further course of action. For the present there shall be an order directing the 2nd respondent to retain the passport mentioned above to the petitioner. A reading of GSR 570(E), which is relied upon by the respondents also makes it clear, even if criminal cases are pending an accused can hold a passport and travel abroad with the permission of the Court. Therefore, this Court holds that the action of the respondents in seeking the return of the passport on the ground of adverse police report is not correct. Post the landmark decision in Maneka Gandhi v Union of India and Another1 and later cases upto Satish 1 AIR 1978 SC 597 7 Chandra Verma v Union of India and Others2, the right to travel abroad is a part of a personal liberty and the right to possess a passport etc., can only be curtailed in accordance with law only and not on the subjective satisfaction of anyone. The procedure must also be just, fair and reasonable.
With the above observation the Writ Petition is allowed. There shall be no order as to costs.
Consequently, the Miscellaneous Applications pending, if any, shall also stand closed.
__________________________ D.V.S.S.SOMAYAJULU, J Date:08.04.2022.
Note: LR copy be marked B/o Ssv 2 2019 SCC OnLine SC 2048