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Judgment
Reva Khetrapal, J.—The brief facts leading to the filing of the present Writ Petition are that in the intervening night of 07/08.12.2006, the
petitioner holding an Indian passport No. B-3782415 dated 24th September, 2001, issued from Jallandhar, arrived from U.S.A. by flight No.
SQ-408. On his approaching immigration clearance, his passport was scrutinized and it was found that page numbers 15 to 22(eight pages) were
missing, that is, the pages containing the departure stamp of immigration from India (Amritsar Airport) and the U.S.A. visa. A complaint was
received from the Immigration Officer by Police Station I.G.I. Airport, New Delhi for the registration of a case, and on the aforesaid complaint of
the Immigration Officer, FIR No. 695 dated 7th December, 2006 u/s 12 of the Passports Act, 1967 was registered against the petitioner. The
passport of the petitioner and his other travel documents were seized. The petitioner was arrested and subsequently released on bail.
The petitioner in the present writ petition has averred that he was married to Kisun Shereen on 16th June, 2005 and that his wife is a citizen of
U.S.A. He was issued a visa by the U.S.A. Embassy, New Delhi on 12th September, 2006 which was to expire on 11th March, 2007. Pursuant
to the issuance of the said visa by the US Embassy, (he) the petitioner left for America on 25th October, 2006 to join his wife, who is a resident of
8909-Glen Alder Way, Sac CA 95826-916214-4401 Cell America. He joined his wife in U.S.A. and started his life there. In due course he was
issued a permanent resident card. He, however, had to return to India unexpectedly because of a death in the family and on his reaching New
Delhi in the intervening night of 07/08.12.2006, he was arrested by the police on the ground that eight pages were missing from his passport when
checked at the Immigration Counter at IGI Airport, Delhi.
I have heard counsel for the petitioner as well as counsel for the State.
Counsel for the petitioner asserts that the petitioner has not torn any page of the passport and it is very difficult to comprehend as to why he will
tear the pages of his passport while returning from America and despite the fact that the date of expiry of the visa was 11th March, 2007. The
petitioner had in fact come to India because of a death in the family and had to return to America in the month of January, 2007 itself. Counsel for
the petitioner submits that the petitioner has been falsely implicated u/s 12 of the Passports Act and on account of his passport having been
impounded, he cannot return to U.S.A. The charge sheet has not been filed till date. Accordingly, directions be issued by this Court for issuance of
a fresh passport to the petitioner to enable him to travel to U.S.A. where he resides with his wife.
The provisions of Section 12(3) of the Passports Act, 1967, which deal with contravention of the conditions of a passport are relevant and the
same are reproduced hereunder:
Section 12(3) - Whoever contravenes any condition of a passport or travel document or any provision of this Act or any rule made there under for
which no punishment is provided elsewhere in this Act shall be punishable with imprisonment for a term which may extend to three months or with
fine which may extend to five hundred rupees or with both.
Rule 19 of the Passports Rules, 1980 which relates to the conditions of a passport or travel document reads as under:
The conditions of a passport or travel document:
The conditions subject to which a passport or travel document shall be issued or renewed shall be as set out in Schedule V.
Rules 5 and 6 to the Schedule V relate to loss, damage or destruction of a passport or travel document which may be relevant for the present
purpose and are accordingly reproduced hereunder:
The holder of a passport or travel document is personally responsible for its safe custody. It must not be willfully lost, damaged or destroyed. In
case of an unintentional loss or destruction, the fact and circumstances of such loss or destruction should be immediately reported to the nearest
passport authority in India or (if the holder of the passport is abroad) to the nearest Indian Mission or Post and to the local police.
A passport or travel document must not be altered or mutilated in any way nor any endorsement made in it by any person other than a duly
authorized official.
Apart from the above, there is no other provision relating to loss or damage to the passport by the holder thereof. A bare perusal of Rule 5
shows that the holder of the passport must not willfully lose, damage or destroy the passport. There is however no specific provision relating to the
missing of pages of the passport of the holder nor any specific punishment provided therefore. Accordingly, the case of missing of pages from the
passport appears to be covered by Sub-section (3) of Section 12 of the Act. The term of sentence for contravention of any condition of a
passport or travel document as set out in the said sub-section may extend to three months or may be punished with fine which may extend to five
hundred rupees or with both. A conjoint reading of Sub-section (3) of Section 12 of the Act with Rule 5 to Schedule V however leaves no matter
of doubt that such contravention to invite the punishment set out in the sub-section must be ""willful"". Whether it is ""willful"" or not will be a question
of fact.
In the instant case, counsel for the petitioner forcefully submits that the petitioner has not willfully lost the pages of the passport and, as a matter
of fact, there was no reason for him to tear out the same as he has to join his wife in U.S.A., where he is permanently residing. Counsel for the
petitioner further submits that since the respondents have not submitted the challan against the petitioner in the concerned court the petitioner is in
an unenviable position. He can neither defend the case against himself nor plead guilty so that the case against him comes to an end. His visa
expires on 11th March, 2007 and he cannot return to the U.S.A. as his passport and other travel documents have been impounded. He is at a
dead loss as to how the pages have gone missing from the passport and he does not have the foggiest idea about the same. There is no
conceivable reason why he would tear off the pages of his own passport while returning from America and despite the fact that the date of expiry
of his visa was 11th March, 2007 and he intended to return to U.S.A. in January itself.
Notice of the writ petition was issued to the State and Ms. Rajdipa Behura, Counsel for the State has filed a status report contending that the
original passport impounded by the Immigration authorities viz. Passport No. B-3782415 is the case property of case FIR No. 695/2006
registered at Police Station I.G.I. Airport, New Delhi. The same will be required during the trial and hence it cannot be returned to the petitioner
and that, in any case, the same cannot be used by the petitioner having been tampered with. She, however, fairly submits that the petitioner may
apply for a fresh passport before the concerned passport authority in accordance with law.
In view of the aforesaid pleas and contentions raised by the respective counsel for the parties and in view of the fact that the passport of the
petitioner stands impounded as case property in case FIR No. 695/2006 registered at Police Station I.G.I. Airport, New Delhi and the petitioner
has to return to U.S.A., it is directed that the petitioner shall apply for grant of a fresh passport. On the petitioner''s doing so, the respondent No. 2
is directed to consider the application of the petitioner for grant of a fresh passport in accordance with law within a period of two weeks from the
date of the petitioner''s making such an application and to issue to the petitioner a fresh passport if the same is permissible in accordance with the
provisions of the Passports Act, 1967. This shall, however, be subject to the condition that the petitioner shall furnish an undertaking before the
Registrar General of this Court by way of an affidavit that he shall make himself available for the trial of the case registered against him and shall
furnish surety in the sum of Rs. 50,000/- to the satisfaction of the Registrar General of this Court.
The writ petition stands disposed of accordingly.
A copy of this order be given dusty to counsel for the petitioner under the signature of the Court Master, as prayed.