Kerala High Court
Faisal.P.A vs Regional Passport Officer on 21 November, 2018
Author: Dama Seshadri Naidu
Bench: Dama Seshadri Naidu
WPC Nos.29873/2018 &
conn.cases 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
WEDNESDAY,THE 21ST DAY OF NOVEMBER 2018 / 11TH KARTHIKA, 1940
WP(C).No. 29873 of 2018
PETITIONER/S:
FAISAL.P.A
AGED 47 YEARS
S/O ALIKUNJU , R/453A,PUTHETH MOOLAYIL PUTHUPADI
PO, PERUMATTOM, MUVATTUPUZHA, ERNAKULAM-671321
BY ADV. SRI.P.A.AUGUSTIAN
RESPONDENT/S:
1 REGIONAL PASSPORT OFFICER
REGIONAL PASSPORT OFFICE,PANAMPILLY NAGAR POST
OFFICE, COCHIN-682036
2 ADDL.R2 COMMISSIONER OF CUSTOMS
CUSTOMS HOUSE, WILLINGTON ISLAND, COCHIN-682009.
(ADDL.R2 IS IMPLEADED AS PER ORDER DATED
22/10/2018 IN IA.02/2018)
BY ADVS.
SRI.JAISHANKAR V.NAIR, CGC
SRI.SREELAL N.WARRIER
SMT.C.G.PREETHA, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
21.11.2018, ALONG WITH WP(C).29957/2018, WP(C).30005/2018, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC Nos.29873/2018 &
conn.cases 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
WEDNESDAY,THE 21ST DAY OF NOVEMBER 2018 / 11TH KARTHIKA, 1940
WP(C).No. 29957 of 2018
PETITIONER/S:
FASEELA MUHAMMED KUNJU
AGED 53 YEARS
W/O.BASHEER AHMED MOHAMMED ABDUL KHADER, R/O
MURUKKUVELIPARAMBU, PATTATHIMUKKU, PERUNNA P.O,
CHANGANASSERY, KOTTAYAM-686102.
BY ADV. P.A. AUGUSTIAN
RESPONDENT/S:
1 REGIONAL PASSPORT OFFICER
REGIONAL PASSPORT OFFICE, PANAMPILLY NAGAR P.O,
COCHIN-682036.
2 ADDL. R2- COMMISSIONER OF CUSTOMS
CUSTOMS HOUSE, WILLINGTON ISLAND, COCHIN, PIN-
682009.
ADDL.R2 IS IMPLEADED AS PER ORDER DATED
10/10/2018 IN IA 2/2018 IN WPC 29957/2018.
BY ADVS.
SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
SMT.C.G.PREETHA, CGC
SRI.JAISHANKAR V.NAIR, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
21.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC Nos.29873/2018 &
conn.cases 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
WEDNESDAY,THE 21ST DAY OF NOVEMBER 2018 / 11TH KARTHIKA, 1940
WP(C).No. 30005 of 2018
PETITIONER/S:
SHINOY K. MOHANDAS
AGED 38 YEARS
S/O.MOHANDAS K.N. R/O. KALARICKAL HOUSE,
M.G.KAVU, THRISSUR 680681.
BY ADV. SRI.P.A.AUGUSTIAN
RESPONDENT/S:
REGIONAL PASSPORT OFFICER,
REGIONAL PASSPORT OFFICE, PANAMPILLY NAGAR P.O,
COCHIN-682036.
BY ADV. SRI.JAISHANKAR V.NAIR, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
21.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC Nos.29873/2018 &
conn.cases 4
DAMA SESHADRI NAIDU, J.
========================================
W.P.(C)Nos. 29873, 29957 & 30005 of 2018
=========================================
Dated: 21st November 2018
JUDGMENT
Introduction:
Three persons hold valid passports, but they also face allegations of violating the Customs Act. They carry an epithet: smugglers. Under the Customs Act, they have answered the allegations and those proceedings, here, do not concern us, though. They were asked to surrender their passports; rather, the passports were impounded. The Regional Passport Officer acted on the Customs Department's communication: their holding the passport would harm the economic security of the nation. Granted, the Passport Act denies passports to the persons posing danger to the "security" of the nation, does that security include the "economic security"? We will see. Facts:
2. Three persons have filed these three writ petitions; they have a common grievance, though. All the three owned valid passports. Faced WPC Nos.29873/2018 & conn.cases 5 with a direction from the Regional Passport Authority to surrender their passports, they have come to the Court.
3. Faisal, the petitioner in W.P.(C) No.29873 of 2018, has his passport valid till 10th June 2020. Faseela Muhammed Kunju, the petitioner in W.P.(C) No.29957 of 2018, has her passport valid till 13 th March 2021. And K.M.Shinoy, the petitioner in W.P.(C) No.30005 of 2018, has his passport valid till 13th March 2027. Though the facts vary a little in each case, they raise identical issues and the petitioners assail the respondent's action on the same grounds. So this Common Judgment.
4. With his frequent overseas travels, Faisal had the pages in his passport exhausted, with no more room for future stampings. So, through the Ext.P1, on 6th July 2018, he requested the Regional Passport Officer (RPO), the 1 st respondent, for a fresh passport. With no response from the RPO, he issued the Ext.P2 legal notice. He then received a show-cause notice from the RPO: it commands Faisal to surrender his passport.
5. Faseela and her husband have faced prosecution under the Customs Act. When she applied for an anticipatory bail, the WPC Nos.29873/2018 & conn.cases 6 Jurisdictional Sessions Court passed the Ext.P2 order. In fact, the Court directed the Customs Authorities to return to Faseela her passport, which the Customs Authorities impounded earlier. No sooner had Faseela received the passport than she also received the show cause notice from the RPO. It contained the same command: the surrender of the passport.
6. In 2015, Shinoy faced proceedings under the Customs Act. The adjudication completed, he was imposed Rs.1 crore fine. After paying 7.5% of the amount as the statutory precondition, he filed an appeal.
That appeal is pending before the Customs, Excise & Service Tax Appellate Tribunal (CESTAT), Bangalore. Faced with the same Ext.P2 notice, he too assails the RPO's action.
Submissions:
Petitioners':
7. Sri. P. A. Augustian, the counsel for the petitioners in all the three writ petitions, has taken me through the record. Besides elaborating on the facts, he stressed that the RPO has no authority to issue the Ext.P2 in WPC No.30005 of 2018 and Ext.P3 notices in WPC Nos.29873 & 29957 of 2018, much less to direct the petitioners to WPC Nos.29873/2018 & conn.cases 7 surrender the passports. According to him, the right to travel is a fundamental right, and that right stands denied if the petitioners' passports are taken away.
8. Referring to the statements filed by the Central Government Counsel for the RPO and the counter affidavit by the Customs Department, Sri Augustian contends that the RPO cannot act on the Customs Department's dictates. His order to impound the passports suffers from the vice of abdication. To elaborate, Sri Augustian contends that the course the RPO adopted on the Customs Authorities' communication reflects his abdicating the discretion the Passport Act conferred on him. To support his contentions, Sri Augustian has relied on Sinder Pal v. Union of India .1 Respondents':
Passport Authority's:
9. On the other hand, Sri Jaishankar V. Nair, the learned Central Government Counsel, has submitted that the RPO has acted only on the Customs Department's Ext.R1(a) communication. According to him, Section 10 of the Passport Act empowers the RPO to impound or 1[2017 (357) E.L.T.110] WPC Nos.29873/2018 & conn.cases 8 cancel any passport if the passport holder indulges in the activities that imperil the nation's "economic security". So he contends that the RPO's action is bona fide and well-within his statutory powers.
Customs Department's:
10. Sri Sreelal Warrier, the learned Senior Standing Counsel for the Customs Department, has submitted that the Department is duty bound to inform all the authorities concerned, including the External Affairs Ministry, about the pending proceedings that attract Sections 6 (1)(d) and 6 (2)(I) of the Passport Act. Though the Customs Department informs, it is for the Ministry of External Affairs and, in turn, for the RPO to decide whether the passport needs to be impounded or canceled. At any rate, he has submitted that the RPO has acted only in the country's interest.
11. Heard Sri P. A. Augustian, the learned counsel for the petitioners, Sri Jaishankar V. Nair, the learned Central Government Counsel for the RPO, and Sri Sreelal Warrier, the learned Senior Standing Counsel for the Customs Department.
WPC Nos.29873/2018 & conn.cases 9 Discussion:
(a) The Notices and the Responses:
12. All the three petitioners have valid passports. Faisal's and Faseela's passports are valid till 2020; K.M.Shinoy's till 2027. They all have faced or have been facing inquiries under the Customs Act. They received the identically worded Ext.P2 in WPC No.30005 of 2018 and Ext.P3 communications from the RPO:
"Please note that the following discrepancies have been observed regarding your application:
You are advised to surrender the passport immediately. You are required to produce proper clarification/explanation for the same, without which the requested service cannot be provided to you."
13. Assailing this notice, the petitioners have filed these writ petitions. To answer the petitioners' contentions, the RPO has assigned these reasons: Against Faisal, he says that Faisal applied for the reissue of his Passport. His application examined, the system found that "he is involved in smuggling activities punishable under the provisions of Customs Act, 1962". Then, he refers to the letter, dt.25.07.2018, he received from the Commissioner of Customs, Cochin. We will WPC Nos.29873/2018 & conn.cases 10 elaborate on that shortly.
14. Indeed, the RPO admits that the computer-generated show cause notice, dated 06.08.2018, sent to the petitioner "was an inadvertent mistake since the petitioner's passport No. H 7574743 is now kept" in the RPO's custody.
15. Against Faseela, the RPO relies on the letter, dt.25.07.2018. He says that Faseela is involved in an attempted smuggling of Foreign Currency. There are chances of Faseela's leaving the country, and that would seriously hamper the investigation. Against Shinoy, too, the allegations are the same: he has applied for the reissue of his passport, but the Customs Department's letter casts a cloud on his character.
16. In the letter, dt.25.07.2018, the Customs Department incorporated a list of persons. It points out "that all the persons in the list are likely to engage outside India in activities prejudicial and detrimental to the economic security of India and their continued presence in foreign countries would not be in public interest." Faisal and Shinoy were found mentioned in the list. The Ministry of External Affairs, too, required the RPO, through its communication, dt. 01.08.2018, to take appropriate action.
WPC Nos.29873/2018 & conn.cases 11
(b) The Statutory Scheme:
17. Now, we will examine the statutory provisions of the Passport Act, including Sections 6 and 10, the pivotal ones. A person desirous of visiting a foreign country or countries must apply under Section 5 of the Act to the passport authority. The application received, the passport authority will inquire into the request. Then, he may issue the passport or travel document for the countries the applicant has asked. Or under Section 5 (2) (b), the passport authority can limit the permission to a specified country or countries. Still, under clause ( c) of the same subsection, the authority can refuse the permission. With partial refusal or total refusal under clause (b) or clause (c) of sub- section (2) respectively, the passport authority must record the reasons. He must also hand over a copy of that order. But the authority need not supply to the applicant the order copy if he reckons that "it will not be in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public to furnish such copy."
18. Section 6 of the Act enumerates the grounds on which the WPC Nos.29873/2018 & conn.cases 12 passport authority can partially or totally refuse to issue the passport. The provision reads:
6. Refusal of passports, travel documents, etc.--(1) Subject to the other provisions of this Act, the passport authority shall refuse to make an endorsement for visiting any foreign country under clause (b) or clause (c) of sub-section (2) of Section 5 on any one or more of the following grounds, and on no other ground, namely:--
(a) that the applicant may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India;
(b) that the presence of the applicant in such country may, or is likely to, be detrimental to the security of India;
(c) that the presence of the applicant in such country may, or is likely to, prejudice the friendly relations of India with that or any other country;
(d) that in the opinion of the Central Government the presence of the applicant in such a country is not in the public interest. (2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub-section (2) of Section 5 on any one or more of the following grounds, and on no other ground, namely:--
(a) that the applicant is not a citizen of India;
(b) that the applicant may, or is likely to, engage outside India in activities prejudicial to the sovereignty and integrity of India;
(c) that the departure of the applicant from India may, or is likely to, be detrimental to the security of India;
(d) that the presence of the applicant outside India may, or is likely to, prejudice the friendly relations of India with any foreign country;
(e) that the applicant has, at any time during the period of five years immediately preceding the date of his application, been convicted by a court in India for any offense involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years;
(f) that proceedings in respect of an offense alleged to have been committed by the applicant are pending before a criminal court in India;
WPC Nos.29873/2018 & conn.cases 13
(g) that a warrant or summons for the appearance, or a warrant for the arrest, of the applicant, has been issued by a court under any law for the time being in force or that an order prohibiting the departure from India of the applicant has been made by any such court;
(h) that the applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such repatriation;
(i) that in the opinion of the Central Government the issue of a passport or travel document to the applicant will not be in the public interest.
(Italics supplied)
19. Section 6 (1) speaks of the passport authority's refusal to endorse on an existing travel document under clause ( b) or clause (c) of sub-section (2) of Section 5. On the other hand, sub-section (2) deals with the authority's refusal to issue the passport or travel document for visiting any foreign country under clause ( c) of sub- section (2) of Section 5. That is, sub-section (2) concerns issuing the passport, rather than endorsing on the passport. It contains more grounds of refusal than sub-section (1). Yet clause (b) in subsection (1) and clause (c) in subsection (2) are common: that the presence of the applicant in such country may, or is likely to, be detrimental to the security of India. Indeed, the Customs Department has invoked this clause, and the RPO followed suit.
WPC Nos.29873/2018 & conn.cases 14
(c) Law Applied to the Facts:
20. To be precise, the Customs Department informs the Ministry of External Affairs and the RPO, too, that Faisal is a key member of a smuggling racket. Initially, he had absconded but was detained on his arrival in India in May 2017. He had an earlier detention under COFEPOSA Act. Besides, he is said to have suffered imprisonment in Nepal for the charges of gold smuggling. Shinoy, too, is a part of smuggling racket. Earlier, he paid a penalty of Rs.2 crore under the Customs Act and was subjected to one-year detention under COFEPOSA Act.
21. As I can see, Faseela is not in the "prohibited list" the Customs Department sent to the RPO. But the Department insisted on her surrendering the passport because she is an accused in OS 229 of 2018 of Customs, for the offences punishable under Sections 132 and 135 (1 (a) of the Customs Act. Thus, the Customs Department has felt that there are strong chances of Faseela "leaving the country, which would seriously hamper the investigation."
22. Faseela has already secured an anticipatory bail. And she has WPC Nos.29873/2018 & conn.cases 15 so far violated none of the bail conditions. She seems to have secured back her passport from the Customs Department, which seized it when she had been arrested. Now, the Department wants it again-- collaterally. Against Faisal and Shinoy, there are no criminal cases pending. At any rate, both the Customs Department and RPO assign a singular reason: they are likely to engage outside India in activities prejudicial and detrimental to the economic security of India.
23. The Act further probed, we find Section 10 dealing with "variation, impounding, and revocation" of passports. Under Sub- Section (1) of Section 6 or under Section 19, the passport authority may vary or cancel the endorsements on a passport. Then, it will require the holder of a passport, by notice in writing, to deliver up the passport. Section 6 (1) concerns the country's sovereignty, integrity, security, and its friendly relations with other countries. Section 19, on the other hand, singles out enemy countries notified to have engaged in external aggression against our country. Even if a person's travel severely impairs the Government's foreign affairs, the authorities can cancel the passport. Germane for our purpose is Section 10 (3) (c): if the passport authority deems it necessary so to do in the interests of WPC Nos.29873/2018 & conn.cases 16 the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public.
24. A person suffers a disqualification to get the permission to travel if his or her presence in another country, as mandated under Section 6 (1) (b) of the Passport Act, to be "detrimental to the security of India". A person gets no passport or travel document if, as Section 6 (2) (c) holds, his departure from India proves detrimental "to the security of India". And under Section 10 (3) (c), a passport is subjected to "variation, impounding, or revocation" in the interests of "the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country," or in the interests of the public.
(d) Can "Security of India" include "Economic Security of India"?
25. Semantically, the Shorter Oxford English Dictionary defines "security" in its varied senses. Contextually confined, it is "the condition of being protected from or not exposed to danger; safety; the condition of being protected from espionage, attack, or theft". Of course, in commercial parlance, security is "the property etc. deposited WPC Nos.29873/2018 & conn.cases 17 or pledged by or on behalf of a person as a guarantee of the fulfillment of an obligation."
26. Explanation to Section 157A of the Patents Act, 1970, defines the term. The expression "Security of India" takes into its sweep any action necessary for the security of India. But the definition is contextual and refers to fissionable materials; traffic in arms, ammunition, and implements of war, and other goods and materials relatable to a military establishment. It also covers the actions taken in time of war or other emergency in international relations. Ramanatha Aiyar's The Major Law Lexicon cites as an example the Supreme Court's observation in Jagan Nath Sathu v. Union of India , under the 2 Preventive Detention Act, 1950: bringing the Government of India and the Government of the State of Jammu and Kashmir into hatred and contempt involves the 'security of India'.
27. "Interest of Security of India" also stands defined in Section 68 of the Semiconductor Integrated Circuit Layout-Design Act. Again this definition, too, is contextual and relates to "any action necessary for the security of India which relates to the use of a layout-design or 2AIR 1960 SC 625 WPC Nos.29873/2018 & conn.cases 18 a semiconductor integrated circuit incorporating a layout-design or an article incorporating such semiconductor integrated circuit". And this designing must, in turn, be relatebale to fissionable materials, the traffic in arms, and so on, as is defined in the Patents Act, 1970.
28. Dictionary of Military and Associated Terms, compiled by the US Department of Defence (2002) defines "security": 1. Measures taken by a military unit, activity, or installation to protect itself against all acts designed to, or which may, impair its effectiveness. 2. A condition that results from the establishment and maintenance of protective measures that ensure a state of inviolability from hostile acts or influences. 3. Regarding classified matter, the condition that prevents unauthorized persons from having access to official information safeguarded in the interests of national security.
29. The same dictionary defines "national security" on a collective term encompassing both national defense and foreign relations of a country. Specifically, it relates to the condition provided by: (a) a military or defense advantage over any foreign nation or group of nations; (b) a favorable foreign relations position; or (c) a defense posture capable of successfully resisting hostile or destructive WPC Nos.29873/2018 & conn.cases 19 action from within or without, overt or covert.
30. In Cole v. Young , the Act of August 26, 1950, gave to the 3 heads of certain departments and agencies of the Government summary suspension and unreviewable dismissal powers over their civilian employees. It was "in the interest of the national security." An employee was found having "close association with alleged Communists and an allegedly subversive organization." Later, he was dismissed because his continued employment was not "clearly consistent with the interests of national security."
31. In that context, the American Supreme Court has held that the term "national security" is not defined in the Act of August 26, 1950, but it is clear from the statute that it should comprehend "only those activities of the Government that are directly concerned with the protection of the Nation from internal subversion or foreign aggression, and not those which contribute to the strength of the Nation only through their impact on the general welfare."
(e) Interpretation and Interpolation:
32. If we get back to the facts, here, the Customs Department 3351 US 536 (1956) WPC Nos.29873/2018 & conn.cases 20 adds an adjective before "security": economic. Adjectives qualify a meaning; they even alter it. "Security" is found used in isolation under Section 6 (1) and (2) of the Act. Under Section 10 (3) (c) it finds its company: "the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country," or in the interests of the public.
33. Right to travel is a fundamental right. Maneka Gandhi v. Union of India , the magnum opus of a judgment, vouches for it. That 4 said, any provision that affects this fundamental right needs strict interpretation. Interpolation is not one established method of interpretation, especially, of a provision with far-reaching consequences: "economic" is an interpolation before "security".
(f) The Security of a Country or the National Security in Context:
34. Article 13 of the International Covenant on Civil and Political Rights, 1966, permits expulsion of an alien 'only in pursuance of a decision reached in accordance with law [and the alien] shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his 4AIR 1978 SC 597 WPC Nos.29873/2018 & conn.cases 21 case reviewed by, and be represented for the purpose before, the competent authority ...'.
35. In a globalised economy, economic security, or economic exclusivity is a myth, or at least an impossibility. No man is an island; no country is, either. Literally, a country may be so, but not metaphorically; the interdependence is immense and inevitable. Quantum physics hypothesizes a butterfly's flapping wings creating a tsunami in Texas. So goes with globalization. If a developed economy 5 catches a cold, the stock markets across the world sneeze, as it were.
36. To reiterate, freedom of movement is a facet of fundamental rights. A citizen's right to travel can be curtailed only through the procedure established by law. If the right to travel is a part of a person's liberty, that person cannot, according to Satwant Singh Sawhney v. D. Ramarathnam , be deprived of his freedom except by 6 due process of law.
(g) Purposive Construction of the Provision:
5 In 1961, Edward Lorenz, an MIT meteorologist, developed a weather- prediction model. He theorized that a miniscule occurrence, such as a tiny butterfly flapping its wings in the Amazon, could hypothetically set in motion a chain of events that could cause tornadoes to touch down in Texas a few days later. It came to be known as butterfly effect. MIT Technology Review of 6th October 2014, hoped that as data troves become richer and data-management tools grow more sophisticated, we are getting closer to realise that the butterfly effect may indeed describe a mathematically predictable reality.
6 AIR 1967 SC 1836 WPC Nos.29873/2018 & conn.cases 22
37. Given the intricacy of the issue, I have asked Ms. Neenu Nair, an industrious young advocate, to be the informal amicus of the Court. She has agreed. On research, she has informed the Court that she has not come across any judicial interpretation--precedentially or otherwise--holding that security of the country under either Section 6 or 10 of the Act would include "economic security". She has submitted that the Passports Act 1967 was enacted in the backdrop of the Supreme Court's decision in Satwant Singh Sawhney. She submits that the majority decision in Satwant Singh Sawhney refused to accept that the Government's absolute discretion in the matters of issuing a passport. It has held that the right to travel abroad is a part of the person's personal liberty; he could not be deprived of it except by procedure established by law under Article 21 of the Constitution. Then, as there was no law establishing any procedure, the Government had no right to refuse a passport to any person who might have applied for it. Thus came into being the Passport Act, 1967. It regulates the passport issuing, besides providing the mechanism, too. In fact, of the Act, Sections 6 and 10 are pivotal. And these have been considered by the Courts often.
WPC Nos.29873/2018 & conn.cases 23
38. In Maneka Gandhi, the Supreme Court has held that no person can be deprived of his right to go abroad. There is a specific law holding the field. The Act has given wide powers not to issue a passport or travel document or to revoke the one already granted, Then, to deny a person his right to passport, the competent authority must have the material to support his objection, and it must be based on the record the authority maintains. The grounds of refusal are well set. Once the authorities mention the grounds, they must bring their case within those grounds; they cannot have a right to add any other ground. Nor can they to adopt an interpretation which, in substance, would amount to introducing a new ground apparently beyond the purview of the existing provisions.
39. Maneka Gandhi has also held that national security, sovereignty, public order, and public interest must be of such a high degree as to offer a great threat. These concepts should not be devalued to suit the hypersensitivity of the executive or minimal threats to the State. Our nation is not so pusillanimous or precarious as to fall or flounder if some miscreants pelt stones at its fair face from foreign countries. Bhagawati J (as his Lordship then was) with a touch of WPC Nos.29873/2018 & conn.cases 24 rhetoric has observed in his concurring judgment that it is a basic human right recognised in Article 13 of the Universal Declaration of Human Rights, with which the Passport Authority is interfering when it refuses or impounds or cancels a passport. It is a highly valuable right which is a part of personal liberty, an aspect of the spiritual dimension of man, and it should not be lightly interfered with.
40. In the same vein, the Bombay High Court in Naresh Lalchand Bhagchandani v. Union of India , has held that the 7 provisions empowering the authorities to act, as contemplated under Section 6 or Section 10 of the Act, must be strictly construed; the applicant's "acts or omissions or violation should essentially fall within the contemplation of the provisions on their strict construction."
41. A person can be denied the right to travel abroad if the authorities are satisfied that the ingredients of Section 6 are satisfied. The language of the section, according to the Punjab and Haryana High Court in Rajinder Kaur v. Union of India , signifies the gravity 8 of the involvement or likely involvement of an applicant in activities 72007 SCCOnline Bom 376 8AIR 2004 P & H 34 WPC Nos.29873/2018 & conn.cases 25 prejudicial to the sovereignty and integrity of the country. These provisions, thus, must receive a strict construction as their consequences in law are not only serious but have the effect of taking away freedom granted to the petitioners in law--under the Constitution, too. The expression, "likely to" cannot be treated so lightly as to include every activity and relationship to be prejudicial to the sovereignty of the State. Likelihood may take in its scope the apprehension which essentially must be record-based or founded on a reasonable cause.
42. Before its undergoing an amendment in 2013, Section 15 of the Unlawful Activities (Prevention) Act, 2012, has spelt out a "Terrorist Act" to be any act that threatens or likely to threaten the unity, integrity, "security", or sovereignty of India. If the act intends to strike terror or likely to strike terror in the people, or any section of the people in India, or in any foreign country, that act, too, was treated as a terrorist act. A Division Bench of this Court in Shareef v. State of Kerala has held that even without the insertion of the words 9 'economic security' in S. 15, the word "security" occurring in that 92013 (4) KLT 60 WPC Nos.29873/2018 & conn.cases 26 section before its amendment would cover 'economic security' as well.
43. In Abdul Salam v. National Investigating Agency , a Full 10 Bench of this Court has disagreed with that interpretation. In fact, it has observed that the Division Bench has interpreted "security" imaginatively to bring it within the fold of "property" under Section 2(h) of the U.A.(P) Act. Then, the Full Bench has held that finance of the country is something different, having broader connotations and applications in the country's economic set up, and it cannot be brought down to a narrow concept or object as property. So also, the term "security" occurring in Section 15 of the U.A.(P) Act "cannot be stretched by interpretative process to include economic security. To understand what exactly security is, as meant by the law, the whole section must be read and appreciated carefully. It is quite clear from such interpretation and understanding that the term security meant under the law is the country's security vis-à-vis, law and order situations and internal or external affairs of the country, and not financial or economic fabric. When the Parliament in its wisdom realised that economic security of the country also must be brought within the 102018 (3) KLT 93 WPC Nos.29873/2018 & conn.cases 27 definition of errorist act, the Parliament inserted the words 'economic security' specifically in Section 15 of the U.A.(P) Act by a specific amendment."
44. In Sinder Pal, the Punjab & Haryana High Court has held that if at all the Customs Authorities apprehend that the petitioner may flee the country, they can take up all possible pleas before the Court concerned. But they "cannot give incorrect/wrong information and particulars to the Passport Authority misguiding them to withhold/impound the passport."
Conclusion:
I reckon that the RPO's Ext.P2 notice in WPC No.30005 of 2018 and Exts.P3 notices in WPC Nos.29873 & 29957 of 2018, laconic and inadequate as they are, cannot be sustained. True, the RPO can act on any person's information, and the Customs Department suffers no disqualification to notify the RPO. But that information received, the RPO must act independently. He must ensure that the allegations, taken as true, contravene any of the eventualities spelt out either in Section 6 or Section 10 of the Passport Act. Here, I see the Customs Department's complaint meeting no WPC Nos.29873/2018 & conn.cases 28 ground mentioned in these provisions, for I hold that "security" will not encompass "economic security."
I therefore allow all the three writ petitions: Ext.P2 notice in WPC No.30005 of 2018 and Exts.P3 notices in WPC Nos.29873 & 29957 of 2018 are set aside. As a result, the Regional Passport Officer will consider the petitioners' request in WPC No.29873 of 2018 for re- issue of passport expeditiously in three weeks' time. No order on costs.
Sd/-
DAMA SESHADRI NAIDU JUDGE WPC Nos.29873/2018 & conn.cases 29 APPENDIX OF WP(C) 29873/2018 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED
06.07.2018 WITH ITS ACKNOWLEDGMENT.
EXHIBIT P2 TRUE COPY OF THE LEGAL NOTICE DATED
08.08.2018
EXHIBIT P3 TRUE COPY OF THE SHOW CAUSE NOTICE NO.
SCN/30747160L DATED 6/8/2018
WPC Nos.29873/2018 &
conn.cases 30
APPENDIX OF WP(C) 29957/2018
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGE OF THE
PASSPORT NO.J 6438116 ISSUED BY RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE ORDER DATED 17.7.18 IN
CRL.M.C.NO.1387/2018.
EXHIBIT P3 TRUE COPY OF THE SHOW CAUSE NOTICE DATED
3.9.2018.
RESPONDENT'S/S EXHIBITS:
ANNEXURE-R1(a) TRUE COPY OF THE LETTER NO. F NO.S14/92/2018-AIR CUS,
DATED 25/7/2018 FROM THE COMMISSIONER OF CUSTOMS, COCHIN.
ANNEXURE-R1(b) TRUE COPY OF THE LETTER NO.V.I/405/2/1/2018 VOL.III, DATED 1/8/2018 WPC Nos.29873/2018 & conn.cases 31 APPENDIX OF WP(C) 30005/2018 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGE OF THE
PASSPORT ISSUED BY RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE SHOW CAUSE NOTICE DATED
6.8.18.