Syed Abdul Gani Syed Abdul Kader vs The Regional Passport Officer and Others

Kanakaraj, J.—The Writ Petition is for the issue of a Writ of certiorarified mandamus to quash the order of the Government of India

communicated by the fourth respondent in his proceedings dated 6.5.1996 impounding petitioner''s passport and to direct the respondents to

return the petitioner''s passport V-475478 issued at Madras on 20.10.1995. The petitioner is a Indian citizen and earlier he had been issued a

passport K-870249, issued at Hong Kong on 27.4.1992. That passport was valid up to 26.2.2002. According to the petitioner he had lost his

passport and therefore, he had applied for a new passport before the Passport Officer, Madras, on 6.6.1995. Since the petitioner''s Hongkong

residential visa was to expire in the first week of November, 1995 he sought for urgent orders on the request for a new passport. It is under these

circumstances that the subject passport V-475478 was issued on 20.10.1995 valid up to 18.10.1996. Under the strength of this passport the

petitioner travelled to Hongkong to attend to his business activities. He sought for extension of the validty of the passport by making an application

to the fourth respondent. In the meanwhile, the Enforcement Director had issued a summons dated 11.1.1996 seeking appearance of the petitioner

at the office of the Enforcement Directorate on 22.1.1996. This summons related to the investigation in connection with a Hawala case involving an

amount of Rs. 40 crores. Therefore, on 1-5-1996 the fourth respondent was informed that the petitioner had failed to appear on 22.1.1996 and

therefore, it was necessary to impound the passport of the petitioner u/s 10(3)(h) of Passports Act, 1967 (hereinafter called ""the Act"").

Accordingly, the fourth respondent informed the petitioner by his order dated 6.5.1996 that the petitioner''s passport had been impounded. The

petitioner was also informed that he had a right of appeal to the Chief Passport Officer, Ministry of External Affairs, New Delhi. In the same order

the petitioner was informed that an Emergency Certificate could be issued to the petitioner to enable him to travel back to India. On 8.5.1996 the

petitioner addressed an appeal to the Chief Passport Officer. In his appeal he contended that the Passport cannot be impounded u/s 10(3)(h) of

the Act and that no opportunity had been given to him before passing the impugned order.

According to the petitioner he again received a summons dated 13.5.1996 asking him to appear before the Enforcement Directorate on

30.5.1996. The petitioner sent a reply on 1-6-1996. In his affidavit the petitioner says that the appeal filed by him is still pending and he had been

prevented from coming back to India since his passport had been impounded. Before narrating the subsequent facts it has to be pointed out that

the petitioner has clearly sworn to incorrect and misleading statements. The petitioner was fully aware that in the letter dated 6.5.1996 an

emergency certificate was offered to enable him to travel back to India. What is more, there is material to show that on 7.5.1996 the petitioner had

met the fourth respondent and he had been told about the investigation in the Hawala case and that it is only because of the non-appearance in

spite of the receipt of the summons that the passport was being impounded. It was also explained to him the scope of the emergency certificate and

how he could travel back to India without any difficulty. Therefore, it was certainly not proper on the part of the petitioner to say that he was

prevented from coming to India, as stated in his affidavit, sworn to on 12.6.1996. The petitioner then proceeds to question the correctness of the

order dated 6.5.1996 on various grounds to which I will make a reference later.

To complete the narration of facts, as seen from the counter-affidavit of the respondents as well as the records produced before me, I find that a

third summons was issued on 3.6.1996 asking the petitioner to appear on 25.6.1996. So far as the appeal filed by the petitioner is concerned, the

Joint Secretary has made a note that the petitioner should be informed that the Passport facilities would not be restored to him till such time that he

returns to India and presents himself before the FERA Authorities in response to the summons. The fourth respondent was again directed to issue

an Emergency Certificate, on 20.5.1996. The fourth respondent had met the petitioner and the summons was served on him. The note made by the

Joint Secretary was also made known to the petitioner. There is a categorical statement by the fourth respondent that the petitioner had told him

that his family was in Hongkong and he saw no reason to return to India and did not want an Emergency Certificate. Again the fourth respondent

met the petitioner on 12.6.1996 and handed over the third summons dated 3.6.1996 asking the petitioner to appear on 25.6.1996. The petitioner

had told the fourth respondent that he was innocent and it was a case of mistaken identity. The petitioner was not sure whether he would go back

to India on an emergency certificate. But he offered to go back to India if the passport was given to him.

On the above pleadings Mr. Habibulla Badsa learned Senior Counsel for the petitioner refers to Section 10 of the Act and in particular to Sub-

clause (3) (h) and also Section 11 (5) of the Act. The contention is that the appeal could not have been disposed of without giving an opportunity

to the petitioner. Further no order has been served on the petitioner regarding the disposal of the appeal. On the question of the legality of the

order dated 6.5.1996 impounding the passport u/s 10(3)(h) of the Act Mr. Badsha argues that the Order is ex facie illegal and a nullity. This is

because Section 10(3)(h) of the Act will at all apply to the facts of the present case since no warrant or summons had been issued by a Court. The

summons issued by the Enforcement Directorate cannot certainly be equated to a summon issued by the Court. Secondly, no show-cause notice

was issued before passing an order u/s 10(3)(h) of the Act. In support of the above proposition reliance is placed on a decision in Mrs. Maneka

Gandhi Vs. Union of India (UOI) and Another, In the said judgment, it has been clearly held that the Commission of Enquiry is not a Court of law

and therefore, a summons issued by Commission of Enquiry cannot form part of an impounding order u/s 10(3)(h) of the Act. So far as the

question of giving an opportunity and furnishing reasons for an order impounding a passport, there are several passages in the said judgment which

in general emphasise the need for giving opportunity and furnishing reasons. Lastly, it is pointed out that the summons issued by the Enforcement

Directorate itself calls upon the petitioner to produce two documents one of which is the passport. Therefore, it is idle on the part of the

respondents to impound passport and at the same time ask him to appear before the authorities with the Passport.

Mr. K. Kumar, learned Additional Central Government Standing Counsel referred to the facts as set out in the counter- affidavit and the

records produced by him to suggest that the relief sought for by the petitioner cannot be granted. He sought to interpret Section 10(3)(h) of the

Act in a different way. According to him, the words ""Issued by a Court under any law for the time being in force"" will govern only a warrant of

arrest and will not govern the words ""warrant or summons for the appearance."" In other words, the warrant or summons for the appearance of a

passport holder issued even by other authorities like the Enforcement Directorate could also be taken into account for the purpose of impounding

the passport. Mr. K. Kumar also refers to Section 10(3)(h) of the Act and seeks to sustain the order on the ground that public interest requires the

impounding of the passport. So far as opportunity is concerned he also refers to the very same judgment and argues that in fit and proper cases it is

enough if opportunity is given subsequent to the order impounding a passport. Similarly, u/s 10(5) of the Act in fit and proper cases the authority is

not bound to disclose the reasons recorded for the impounding a passport. He argues that it is well open to the petitioner to come to India with the

emergency certificate and appear before the FERA Authorities and then seek the return of the Passport.

Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, has been relied upon by both the parties and it is necessary to refer to the said

judgment and the ratio laid down in the said judgment. That was a case where the passport was impounded in public interest, and the Government

of India refused to furnish the reasons taking shelter u/s 10(5) of the Act. After considering rival submissions and the principles of natural justice in

a very elaborate manner the Supreme Court agreed that in the matter relating to the passport, there is every chance of the passport holder making

good his exit from the country and the very object of impounding the passport might be frustrated. It has to be remembered that in that case the

citizen was resident in India, when the passport was impounded. Therefore, the Apex Court observed:

The Passport Authority may proceed to impound the passport without giving any prior opportunity to the person concerned to be heard, but as

soon as the order impounding the passport is made, an opportunity of hearing, remedial in aim, should be given to him so that he may present his

case and controvert that of the Passport Authority and point out why his passport should not be impounded and the order impounding it recalled.

This should not only be possible but also quite appropriate, because the reasons for impounding the passport are required to be supplied by the

Passport Authority after making of the order and the person affected would, therefore, be in a position to make a representation setting forth his

case and plead for setting aside the action impounding his passport. A fair opportunity of being heard following immediately upon the order

impounding the passport would satisfy the mandate of natural justice and a provision requiring giving of such opportunity to the person concerned

can and should be read by implication in the Passports Act, 1967.

Proceeding further the Supreme Court observed that learned Attorney General appearing in the said case had given a statement that the

Government was agreeable to considering any representation by aggrieved person and giving her opportunity in the matter. So far as the grounds

for impounding the passport in the said case, they were furnished in the counter-affidavit filed in the case. The Apex Court agreed that the said

statement of learned Attorney General removed the vice from the order impounding the passport and it could no longer be assailed on the ground it

did not comply with the audi alteram partem rule.

6 I do not think that it is necessary for the purpose of this case to travel beyond the above observations, because the relief sought for in this writ

petition could be so moulded that the prejudice, if any caused to the petitioner can be easily removed.

So far as the appeal filed by the petitioner, I am of the opinion that it is not necessary to go into the question because the order passed in the

appeal has not been served on the petitioner. Therefore, we have to proceed as if no orders have been passed in the appeal. Regarding the

question of the availability of alternative remedy a series of decisions have been cited before me and it is not necessary to go into that question also.

This is because I am not dismissing the writ petition on the ground of the availability of an alternative remedy on the facts and circumstances of the

case.

During the course of the argument learned counsel for the petitioner offered that if the passport is given to the petitioner at Hongkong the

petitioner would be willing to come back to India and attend the investigation pending with the FERA Authorities. He also says that the Authorities

can insist on any amount of guarantee for the return of the petitioner either by sending their own person to accompany the petitioner or by handing

over the passport to the Commander of the Aircraft. These suggestions are not acceptable to the respondents. They argue that the petitioner can

come to India on the emergency certificate to attend the hearing and then claim the passport if he is able to prove his innocence. It is rather

surprising for an Indian citizen, who is facing an enquiry, to dictate terms to the Enforcement Authorities. To me, it appears that it is the plain duty

of an Indian citizen to answer summons and to attend the enquiry if he is confident of proving his innocence. In this case I have already referred to

the fact that the petitioner has sworn to an incorrect affidavit and has also made prevaricating statements to the fourth respondent regarding his

intention to come back to India. Under such circumstances, I am clearly of the opinion that the petitioner should first come back to India, on the

emergency certificate and attend the hearing before the FERA Authorities. After he comes back to India there can be a simultaneous hearing to be

afforded by respondents 1 to 3 regarding the impounding of the passport and the opportunity to the petitioner to put-forward his objections

regarding the order impounding the passport.

I am not deciding the question whether Section 10(3)(h) of the Act refers only to warrant or summons, by a court of law. This is because the

impounding can also be ordered u/s 10(3)(h) in the interest of the general public. In any event, since I am directing an opportunity to be given to

the petitioner after he returns to India there is no necessity to decide the said question especially, when the order could be sustained also on the

ground of public interest. In this connection I hold that the public interest will supersede the interest of a private citizen. Whether the petitioner is

involved in the Hawala case involving Rs. 40 crores or not, it cannot be disputed that the investigation into the case is in the interest of the public.

Therefore, the petitioner has to surrender his private rights for the sake of upholding the public interest. If authority is needed for the above

proposition, one may usefully refer to paragraph 24 of the judgment in Kasinka Trading and another, etc. etc. Vs. Union of India and another, .

On the above discussion of the facts and the legal principles as well as the stand taken by both parties, I am inclined to give the following

directions in the writ petition:-

(1) The impugned order dated 6.5.1996 communicating the order of the Government of India impounding the petitioner''s passport is held valid

subject to Clause (2) below:

(2) The respondents shall afford a post decisional opportunity to the petitioner giving reasons for the impounding and giving an opportunity to the

petitioner to putforth his objections before confirming the order impounding the passport.

(3) The question of granting the post-decisional opportunity will arise only if the petitioner returns to India and also responds to the summons

issued by the Enforcement Directorate.

(4) The respondents shall issue an Emergency Certificate for the purpose of enabling the petitioner to return to India.

(5) Against any order that may be passed by the respondents regarding the impounding of the passport after affording opportunity to the petitioner,

he will have a right of appeal as provided in the Passports Act.

The writ petition is ordered in the above terms. There will however, be no order as to costs.

In view of the order passed in the main writ petition, no further or separate orders are necessary in the connected W.M.P. and the same is

closed.