S.T. Gomer vs The Assistant Collector of Customs, Madras

Arunachalam, J.—This petition u/s 482 read with Section 451, Crl. P.C. has been filed by the Petitioner, who was arrested on 29-4-1988

by the Respondent when he attempted to smuggle 868 grams of gold, while he came from America, to direct the release of his passport seized by

the Respondent, to enable him to go over to Sri Lanka to sell his property over there, for which an agreement had been entered long ago, and

come back to India within a period of two months from the date of release of his passport. The Petitioner was detained under the COFEPOSA

Act on 21-6-1988 Though he was arrested on 29-4-1988, he was released on bail on the next day. The Petitioner appears to have filed W.P.

No. 7142 of 1988, challenging his detention under the COFEPOSA Act, which was allowed on 22-2-1989.

Mr. B. Kumar, learned Counsel for Petitioner, submits that four aspects are in favour of the Petitioner to accede to the request made by him,

they being:

(a) Though the Petitioner was on bail for two-and-a-half months, he stayed in India and did not attempt to evade the process of law.

(b) He had already undergone eight months detention under the COFEPOSA Act and the quantity of gold involved is only worth slightly over two

lakhs of rupees and the period inside prison could be taken note of while considering the merits of this petition.

(c) As on date, no complaint has been filed by the Respondent.

(d) No order impounding the passport has been made by any Court and the deposit of the passport was not a condition precedent for his release

on bail. No order of prohibition preventing his going abroad had been made and Article 21 of the Constitution guarantees his fundamental right to

travel.

Mr. P. Rajamanickam, learned Counsel for Respondent, countered the arguments of the learned Counsel for Petitioner, by raising the following

contentions:

(a) The Petitioner was released on bail with a condition to appear before the Respondent daily and that condition is still in force and had not been

relaxed.

(b) The need put forth to go to Sri Lanka is not one of grave emergency and when a person is involved in a grave offence of this nature, a cause

like this cannot over-ride the paramount duty of the Court to ensure the attendance of the Petitioner for a speedy trial.

(c) The detention under the COFEPOSA Act will not enure in favour of the Petitioner since set-off cannot be claimed, for the Petitioner had been

released on bail even on the next day of his arrest.

(d) Due to delay in obtaining sanction, the prosecution had not been launched, but the complaint will be filed against the Petitioner in a day or two

and soon thereafter the trial would be proceeded with.

(e) The Petitioner is a Sri Lankan national and once the passport is released and he is allowed to go out of India, the possibility of his being

available for trial will be too remote. Though no specific order for impounding the passport had been made, the passport is now in the custody of

the trial Court and the difficulties pleaded by the Petitioner are of his own making and the trial Court has passed an order on the basis of the dicta

laid down by this Court.

Mr. Kumar, learned Counsel for Petitioner, relied on Thanapal v. The Assistant Collector of Central Excise, Madras 1986 L.W. Cri. 114

wherein David Annoussamy, J., while considering the seizure of the passport along with the other articles of the Petitioner therein, a foreigner, by

the Customs Department, directed return of the passport since the seizure of passport by a Customs Officer was not permissible. A passing

reference was also made by the learned Counsel for the Petitioner to Satwant Singh Sawhney Vs. D. Ramarathnam, Assistant Passport Officer,

Government of India, New Delhi and Others, , wherein the Supreme Court had observed that the right to travel abroad was a fundamental right

and, in the absence of law regulating such a right, refusal of a passport or withdrawal of one given, would violate Arts. 14 and 21 of the

Constitution.

Mr. Rajamanickam, per contra, placed reliance on the decision of S.A. Kader, J., in The Assistant Controller of Customs House, Madras v.

Abdul Samathu 1985 L.W. Cri. 48, and two unreported decisions of this Court rendered by Sengottuvelan, J., in Crl. M.P. No. 4936 of 1985

and Padmini Jesudurai, J., in Crl. M.P. No. 2520 of 1987 which hold that the Criminal Court undoubtedly had the power to withhold or impound

the passport of any person more so of a foreigner, accused of a grave offence when there is every likelihood of his leaving the country and making

a mockery of the judicial process against him.

Let me now consider the rival contentions of the learned Counsel on either side. David Annoussamy, J., in Thanapal''s case 1986 L.W. (Cri.)

114, while holding that the seizure of passport by the Customs Officer was not covered by Section 110 of the Customs Act and that the seizure

was illegal, observed that it was open to the Respondent (Customs Department) to move the competent Court to modify the conditions of bail to

the extent desired, so that if the Court thought fit to secure the accused person as and when required, condition could be stipulated that the

Petitioner shall not leave the country and, to ensure fulfilment of the condition, order the surrendering of the passport to the Court. This salutary

observation made by this Court must be observed by the Customs Department, so that it could be a complete answer for petitions filed for return

of passport and for permission sought to go out of the country, pending disposal of a prosecution.

In the light of the several decisions brought to my notice as aforementioned, it is clear that if the circumstances so warrant, the Criminal Court

has undoubtedly the power to with-hold the passport or to impound it in cases of grave offences and more so in a case of a foreigner when there

was likelihood of his fleeing from justice.

None of the submissions made by Mr. Kumar can be taken very serious note of, for humanitarian or other considerations cannot prevail over

the paramount duty of a Court to ensure a speedy trial and towards that end, consider the need of the Petitioner''s presence before the trial Court.

The purpose for which the Petitioner seeks permission to go out of India does not appear to be one of grave emergency and especially when the

complaint is stated to be ready for institution. There will be no difficulty in directing the trial Court to take up the case for trial as early as possible,

after the institution of the complaint and dispose it of as expeditiously as may be feasible.

As long as a Criminal Court has the power to withhold the passport and the passport is now in the custody of the trial Court and the need for

withholding has arisen only because of the act of the Petitioner in getting himself involved in alleged smuggling, the difficulties of his own making

cannot enure in his favour, Though under Article 21 of the Constitution, no person can be deprived of his right to travel, except according to the

procedure established by law, the decisions of the Supreme Court in Satwant Singh Sawhney Vs. D. Ramarathnam, Assistant Passport Officer,

Government of India, New Delhi and Others, and Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, , had not touched or affected the

powers of a Criminal Court to withhold or impound the passport of a person accused of an offence if he is likely to leave the shores of the country

and make good his escape from the clutches of law.

On the facts of this case, the Petitioner has still a condition to obey viz. to report before the Respondent and further his passport has been

withheld by the Criminal Court in view of his involvement in an offence under the Customs Act. The complaint against the Petitioner is ready to be

instituted and the trial could be expedited. In view of the reasoning aforementioned, there is no ground made out for either the return of the

passport or granting permission to the Petitioner to go to Sri Lanka, on return of the passport. This petition is dismissed.