The Nagpur Bench of the Hon’ble High Court of Bombay has in a recent ruling held that the power to impound passports can only be exercised by the Passport Authorities in conformity with the provisions of Section 10 of The Passport Act, 1967 and not under Section 102 and 104 of the Code of Criminal Procedure, 1973.
Brief Facts:
A Writ Petition came to be filed before the Hon’ble Nagpur Bench of the High Court at Bombay inter alia seeking reliefs for issuance of appropriate Writ against the Economic Offences Wing, CBI, declaring that the Authority had no power to seize the passport of the Petitioner, thereby seeking release of passport to the Petitioner.
The Petitioner is engaged in the film industry as writer and director in Bollywood and also a businessman. An FIR was lodged against him u/s 420 and 120(b) of the IPC and 13(1)(d) of the Prevention of Corruption Act. The FIR was lodged on the basis of the Written complaint dated 02.06.2017 by Deputy Manager of Bank of Baroda, Nagpur against the petitioner and the other co-accused persons.
The Accused along with the other co-accused availed a Cash Credit facility for business purposes to the tune of Rs. 300 Lakhs and subsequently, the loan account was declared as a Non-Performing Asset by the Bank on 30.06.2016. During the investigation, the respondent (CBI) seized Petitioner’s passport under exercise of the provisions of Section 102 of the Code of Criminal Procedure (CrPC), which allows the police officer to seize property suspected or alleged to be stolen or which is found under circumstances which create suspicion of commission of any offence.
The Counsel for the Petitioner argued that the Respondent Authority did not have the authority to impound his passport under the CrPC. Instead, it was contended that since the Passports Act, 1967 specifically governs the seizure and impounding of passports, and only the Passport authorities have the power to impound passports under Section 10(3)(e) of the Passports Act, 1967, the same would prevail over the general provisions of Section 102 in the Code of Criminal Procedure. In support of the said contention, reliance was placed on the view taken by Hon’ble Karnataka High Court in the matter of Praveen Surendran vs. State of Karnataka & Anr. [2022 SCC OnLine Kar 1661]. Thus the Petitioner claimed that the seizure was unauthorized, illegal and infringed upon his fundamental rights, as he needed to travel abroad frequently for business purposes.
The Respondent, CBI, opposed the petition, stating that the Ld. Judge of the Trial Court had already granted permission to the Petitioner to travel abroad in view of which the Petition would become infructuous and in case an further permissions were required, the Petitioner was at liberty to approach the Respondent Authority for the same. Furthermore, the respondent argued that the seizure of the passport was justified under Section 102 of the CrPC, which empowers the police to seize any property connected to a crime.
RELIEFS SOUGHT BY PETITIONERS
1. To issue appropriate Writ/Order/Direction to set and quash aside order passed by Learned Additional Special Judge.
2. To issue appropriate Writ/Order/Direction to hold and declare that the Respondent Authority cannot seize passport invoking provisions of Section 102 of Cr.Pc and that the passport be returned to the Petitioner.
COURT ANALYSIS:
The Hon’ble Court after considering the contentions and submissions made by the Counsels on both sides was pleased to observe that while Section 102 (1) of the Code of Criminal Procedure empowers a police officer to seize property suspected or alleged to be stolen or which is found under circumstances which create suspicion of commission of any offence. The provision contained under Section 10 of the Passports Act specifically deals with the powers of the Passport authority to impound a passport, more particularly under Section 10(3)(e), which allows the Passport authority to impound a passport if there are pending proceedings against the holder in a criminal court for an alleged offence which is the provision squarely applicable to the present case. The Hon’ble Court further observed that the Passports Act, 1967 is a special enactment and it is trite that it being a special enactment would prevail over Sections 102 and 104 of the Code of Criminal Procedure.
While arriving at its conclusion, the Hon’ble Court has also referred to ruling of the Hon’ble Apex Court in the case of Chennupati Kranthi Kumar vs State of A.P. [AIR 2023 SC 3633] and in the case of Suresh Nanda vs CBI [MANU/SC/7020/2008] which affirm that only the Passport authorities have the authority to impound a passport, and the police cannot withhold the passport beyond its initial seizure.
The Court found that the police had the right to seize the passport under Section 102 of the CrPC, but once seized, it should have been forwarded to the Passport Authority, which alone could decide whether the passport should be impounded. Since this procedure was not followed, the continued retention of the passport by the CBI was deemed illegal.
ORDER:
- The Court allowed the petition and issued a Writ of Mandamus directing the CBI to release the petitioner’s passport, which had been seized during the investigation.
- The Court clarified that the CBI (or any police authority) cannot impound the passport. The CBI could only take action in accordance with the Passports Act.
This Order not only emphasizes the procedure to be followed for impounding of a passport but also the interpretation and applicability of a trite law which is specific and in clear prevalence over another law which is general in nature.
This article has been written by Ms. Prachi Shah, Associate and Mr. Parth Tukaria, Associate from the Litigation Team, AAK Legal, Advocates & Solicitors.
Disclaimer – This article is meant for informational purposes only. The contents of this article are not to be construed as legal advice. The views expressed in the article are those of the authors and do not necessarily reflect the views of the firm. The copyright to the article rests solely with the authors and the firm.