Kerala High Court
Nissar vs State Of Kerala on 21 March, 2019
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 21ST DAY OF MARCH 2019 / 30TH PHALGUNA, 1940
Crl.MC.No. 1109 of 2019
AGAINST CRL.MP NO.223/2019 OF THE JUDICIAL MAGISTRATE OF FIRST
CLASS -II, NEYYATTINKARA IN CRIME NO. 465/2014 OF VELLARADA POLICE
STATION, THIRUVANANTHAPURAM DISTRICT
PETITIONER/ACCUSED:
NISSAR, AGED 44,
S/O. HANEEFA, DREAM HOUSE, NULLYODU, VAZHICAL,
THIRUVANANTHAPURAM DISTRICT.
BY ADV. SRI.VISHNU BHUVANENDRAN
RESPONDENTS/STATE:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 31.
2 THE SUB INSPECTOR OF POLICE,
VELLARADA POLICE STATION,
THIRUVANANTHAPURAM DISTRICT-695 005.
** ADDL.R3: REGIONAL PASSPORT OFFICER,
REGIONAL PASSPORT OFFICE,
SNSM BUILDING, KAITHAMUKKU,
PETTA ROAD, THIRUVANANTHAPURAM-695024.
** ADDITIONAL 3RD RESPONDENT IS IMPLEADED AS PER
ORDER DATED 14.3.2019 IN CRL.M.A. NO.1 OF 2019 IN
CRL.M.C. 1109/19.
R3 BY ADV.SRI.SUVIN MENON, CGC
R1 & R2 BY PUBLIC PROSECUTOR SRI. RAMESH CHAND
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
21.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC:1109/2019 2
ORDER
On 26.5.2014, Crime No. 465 of 2014 of the Vellarada Police Station was registered against the petitioner herein under Sections 465, 468 and 471 of the IPC and under Section 12(1)(b) of the Passports Act, 1967. The allegation is that in the year 2008, the petitioner along with the 2 nd accused, who is an agent, submitted forged records before the Passport Office, Thiruvananthapuram and managed to obtain Passport No. 'A5122125' in his name.
2. After the registration of the crime, the petitioner was summoned and his statement was recorded.
3. On 4.1.2019, when he landed in the Trivandrum Airport, he was taken into custody. His travel document and a phone were seized and he was later released on bail.
4. He filed an application before the learned Magistrate under Section 451 of the Cr.P.C. seeking interim release of the phone and the passport. The learned Magistrate, by the impugned order, ordered the release of the phone. However, holding that the passport, if released would be manipulated and destroyed, refused to release the passport.
CRL.MC:1109/2019 3
5. The above order is under challenge.
6. The learned counsel appearing for the petitioner submitted that the Apex Court in Suresh Nanda v. CBI [(2008) 3 SCC 674] had occasion to hold that while the police may have the power to seize a passport under Section 102(1) of the Cr.P.C., it does not have the power to impound the same. Only the passport authority has the power to impound the passport under Section 10(3) of the Passports Act, 1967. He would contend that on seizure of the passport, the police must sent 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 for the passport authority to decide whether to impound the passport or not. Since the impounding of passport has civil consequences, an opportunity will have to be given to the petitioner to advance his contentions as well. He would also contend that even the court has no powers to impound the passport but can only revoke the passport for the reasons stated in Section 10(7) of the Act. He would further contend that though the crime was registered in the year 2014, the passport authorities have not been noticed by the investigating officer till date. According to the learned counsel, his wife and minor CRL.MC:1109/2019 4 children are abroad and they are staying on the strength of dependent VISA of the petitioner. He has been issued with an electronic exit free entry VISA and if he does not return back to Saudi Arabia within a period of 60 days, his family comprising of his wife and daughters will suffer irreparable injury. It is submitted that the petitioner is prepared to approach the passport authorities and apply for a fresh travel document, if the same is required for. He would also contend that the petitioner cannot be deprived of his right to go abroad, on the basis of such frivolous allegations. He prays that necessary directions be issued to the learned Magistrate to release the passport or to transmit the same to the passport authorities so that necessary steps can be taken as per the provisions of the Passports Act, 1967.
7. The learned Public Prosecutor, while opposing the prayer, submitted that the allegations are grave. The investigation conducted till date reveals that the petitioner had obtained a travel document in the year 1998 by furnishing false documents and he managed to renew the passport in the year 2008 and 2018. It is submitted that the passport which is held by the petitioner is a material document and if the same is handed over, it would adversely affect the case of the prosecution. CRL.MC:1109/2019 5
8. In the course of proceedings, the Regional Passport Officer was impleaded as an additional 3rd respondent. Heard the Central Government counsel, who submitted that though the fact of registration of the crime was brought to the notice of the 3 rd respondent, no request has been received till date to impound the same.
9. I have considered the submissions advanced. Evidently, the petitioner had applied for and had obtained a passport in the year 1998. The said passport was renewed in the year 2008 and in 2018 while at Riyadh. Admittedly, the petitioner is having in his possession three travel documents; the first one issued in the year 1998, the second one in the year 2008 and the present one which is issued in the year 2018. What has been seized by the police is the latest travel document. The said travel document is being used by the petitioner for the purpose of traveling. Till date, no steps have been taken under Section 10 of the Act which provides for variation, impounding and revocation of the passports and travel document. This is despite the fact that the crime was registered in the year 2014.
10. In Suresh Nanda (supra), it was laid down as follows in paragraph Nos. 16 to 18.
CRL.MC:1109/2019 6
"16. Hence, while the police may have power to seize a passport under S.102 CrPC if it is permissible within the authority given under S.102 of CrPC, it does not have power to retain or impound the same, because that can only be done by the passport authority under S.10(3) of the Passports Act. Hence, if the police seizes a passport (which it has power to do under S.102 CrPC), 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 S.10(3) of the Act. It is thereafter 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 vide State of Orissa v. Binapani Dei, AIR 1967 SC 1269.
17. In the present case, neither the passport authority passed any order of impounding nor was any opportunity of hearing given to the appellant by the passport authority for impounding the document. It was only the CBI authority which has retained possession of the passport (which in substance amounts to impounding it) from October, 2006. In our opinion, this was clearly illegal. Under S.10A of the Act retention by the Central Government can only be for four weeks. Thereafter it can only be retained by CRL.MC:1109/2019 7 an order of the Passport Authority under S.10(3).
18. In our opinion, even the Court cannot impound a passport. Though, no doubt, S.104 CrPC 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 S.10(3) of the Passports Act. The Passports Act is a special law while the CrPC 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 S.104 CrPC though it can impound any other document or thing."
11. Thus, there cannot be any doubt that the provisions of the Special Act will govern the issue involved in the instant case. There is some merit in the submission of the learned counsel that the petitioner was arrested in connection with a crime which was registered in the year 2014. The case diary reveals that the passport officer had issued a communication on 31.3.2015 that passport No. 'F7201997' dated 23.1.2008 issued at Riyadh in continuation to Passport No.'A5122125' dated 22.4.1998 issued to Sri.Nissar Hanneefa, S/o. Sri.Hanneefa resident of Thija Manzil, CRL.MC:1109/2019 8 Vellarada P.O., Thiruvananthapuram, Kerala was after a clear police verification report. Such a report was also received on passport No.'A5122125'.
12. In view of the above, the following order is passed:
a) The learned Magistrate shall hand over the passport seized from the possession of the petitioner to the investigating officer, who shall transmit the passport to the Regional Passport Officer, Thiruvananthapuram, expeditiously, so that the passport reaches the officer concerned within three days from today.
b) The petitioner shall surrender the travel documents issued to him in the year 1998 and 2008 before the passport officer simultaneously.
c) The passport officer shall hand over the expired passports to the police officer, if the same is not required for any purpose, for the purpose of production in the court.
d) Insofar as the current passport is concerned, it is for the passport authorities to initiate appropriate action under Section 10 of the Passports Act, 1967. If the passport officer feels that the impounding of the passport is not required, the petitioner CRL.MC:1109/2019 9 shall be permitted to leave the country on the strength of the said document. On the other hand, if the officer deems it necessary to impound the passport, he shall consider issuing a new travel document to the petitioner to enable him to join his wife and children. The discretion shall be left to the authority concerned.
This petition is disposed of with the above directions.
SD/-
RAJA VIJAYARAGHAVAN V., JUDGE AVS //TRUE COPY// P..A TO JUDGE CRL.MC:1109/2019 10 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE 1 TRUE COPY OF THE FIR DATED 26.5.2014 ANNEXURE 11 TRUE COPY OF THE APPLICATION IN CRL.MP 223/2019 IN CRIME NO 465/2014 OF VELLARADA POLICE STATION ANNEXURE 111 TRUE COPY OF THE ORDER DATED 23.1.2019 IN CRL.MP NO 223/2019 IN CRIME NO 465/2014 OF VELLARADA POLICE STATION ANNEXURE IV TRUE COPIES OF THE RELEVANT PAGES OF PASSPORT AND VISA BELONGING TO THE PETITIONERS WIFE AND DAUGHTERS.
ANNEXURE V TRUE COPY OF THE RE-ENTRY VISA ISSUED FROM SAUDI ARABIA.
RESPONDENTS' EXHIBITS:-NIL