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P.P. NAOLEKAR & MARKANDEY KATJU
SURESH NANDA - PETITIONER:
Versus
C.B.I. - RESPONDENT:
Appeal (crl.) 179 of 2008
Decided On : 24/01/2008
Passports Act, 1967 – Section 10 – Code of Criminal Procedure, 1973 – Sections 165, 104, 102 – Search and seizure – Appellant claims to be a non-resident Indian settled in United Kingdom for the last 23 years. – Passport of the appellant as well as other documents were seized by the respondent from 4, Prithviraj Road, New Delhi in a search conducted when the appellant was on a visit to India. – The said search and seizure was pursuant to an F.I.R. registered on the basis of a sting operation carried out by a news portal in the year 2001 – Passport seized during the search was retained by the C.B.I. officials. – An application was moved by the appellant before the Special Judge, C.B.I., Patiala House Courts, New Delhi praying for release of his passport so that he can travel abroad to London and Dubai for a period of 15 days. – Learned Special Judge, by order, directed the release of the passport to the appellant by imposing upon him certain conditions. – Aggrieved against the order passed by the learned Special Judge, C.B.I., the respondent preferred a Criminal Revision before the High Court. – High Court, by order reversed the order of the learned Special Judge and refused to release the passport to the appellant. – Aggrieved against the order of the High Court, present appeal, by special leave, has been preferred by the appellant. – Held, Even the Court cannot impound a passport. – Though, no doubt, Section 104 Cr.P.C. states that the Court may, if it thinks fit, impound any document or thing produced before it, provision will only enable the Court to impound any document or thing other than a passport. – This is because impounding a “passport” is provided for in Section 10(3) of the Passports Act. – Passports Act is a special law while the Cr.P.C. is a general law. – It is well settled that the special law prevails over the general law vide G.P. Singhs Principles of Statutory Interpretation (9th Edition pg. 133). – This principle is expressed in the maxim “Generalia specialibus non derogant”. – Hence, impounding of a passport cannot be done by the Court under Section 104 Cr.P.C. though it can impound any other document or thing. – Court set aside the impugned order of the High Court and direct the respondent to hand over the passport to the appellant within a week from today. – However, it shall be open to the respondent to approach the Passport Authorities under Section 10 or the authorities under Section 10A of the Act for impounding the passport of the appellant in accordance with law. – Court, however, make it clear that court is not expressing any opinion on the merits of the case and are not deciding whether the passport can be impounded as a condition for grant of bail – Appeal Disposed of
Based on the provided legal document, the key points are as follows:
The appellant, a non-resident Indian settled in the United Kingdom for 23 years, had his passport and other documents seized during a search conducted while visiting India. The seizure was related to an FIR based on a sting operation from 2001, and the passport was retained by the authorities (!) (!) .
The appellant requested the release of his passport to travel abroad for a short period. The Special Judge initially ordered the passport to be released with conditions, but the High Court reversed this order, refusing to release the passport (!) .
The appellant argued that the power to impound or retain a passport is governed by the Passports Act, 1967, specifically Section 10(3)(e), which authorizes impounding when proceedings for an offence are pending before a criminal court. He emphasized that the Passports Act is a specific law that prevails over general laws like the Cr.P.C. (!) (!) (!) (!) .
The respondent contended that powers under the Cr.P.C., particularly Sections 102, 165, and 104, permit seizure and impounding of documents, including passports. However, the court clarified that while seizure can be authorized under the Cr.P.C., impounding of a passport is specifically governed by the Passports Act and can only be done by the passport authority under its provisions (!) (!) (!) (!) .
It was highlighted that the police or courts do not have the authority to impound a passport directly under the general provisions of the Cr.P.C. without following the procedures laid down in the Passports Act. Retaining the passport without an order from the passport authority was deemed illegal (!) (!) (!) .
The court reaffirmed that the Passports Act is a special law that overrides general laws concerning impoundment. Therefore, the power to impound a passport is exclusively vested in the passport authority, and the courts cannot exercise this power directly (!) (!) (!) .
The court directed the respondent to return the passport to the appellant within a week. It also clarified that the respondent could approach the passport authorities under the relevant provisions of the Passports Act for lawful impounding in accordance with law (!) .
The court emphasized that it was not expressing an opinion on whether the passport could be impounded as a condition for bail, but rather that the impoundment must follow the proper legal procedures under the Passports Act (!) .
Overall, the judgment underscores the principle that special statutes governing specific matters, such as the Passports Act, take precedence over general procedural laws like the Cr.P.C. when it comes to the impoundment of passports (!) (!) .
The appeal was disposed of with directions to return the passport to the appellant and to follow the appropriate legal procedures for impoundment if necessary.
O R D E R
1. Leave granted.
2. The appellant claims to be a non-resident Indian settled in United Kingdom for the last 23 years. The passport of the appellant as well as other documents were seized by the respondent from 4, Prithviraj Road, New Delhi in a search conducted on 10.10.2006 when the appellant was on a visit to India. The said search and seizure was pursuant to an F.I.R. dated 9.10.2006 registered on the basis of a sting operation carried out by a news portal in the year 2001. The passport seized during the search was retained by the C.B.I. officials. An application was moved by the appellant before the Special Judge, C.B.I., Patiala House Courts, New Delhi praying for release of his passport so that he can travel abroad to London and Dubai for a period of 15 days. The learned Special Judge, by order dated 15.1.2007, directed the release of the passport to the appellant by imposing upon him certain conditions. Aggrieved against the order passed by the learned Special Judge, C.B.I., the respondent preferred a Criminal Revision before the High Court. The High Court, by order dated 5.2.2007, reversed the order of the learned Special Judge and refused to release the passport to the appellant. Aggrieved against the order of the High Court, present appeal, by special leave, has been preferred by the appellant.
3. Learned senior counsel appearing for the appellant submitted that the power and jurisdiction to impound the passport of any individual has to be exercised under the Passports Act, 1967 (hereinafter referred to as “The Act”). He specifically referred to sub-section (3)(e) of Section 10 of the Act which reads as under:
“10.(3) The passport authority may impound or cause to be impounded or revoke a passport or travel document -
(e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India;”
Reference was also made to Section 10A of the Act which has been introduced by Act 17/2002 w.e.f. 17.10.2001.
4. Learned senior counsel for the appellant also placed reliance on the decision of 5- Judge Bench of this Court in Satwant Singh Sawhney Vs. D. Ramarathnam, Asstt. Passport Officer (1967) 3 SCR 525 wherein in para 31, it was held as under:
“32: For the reasons mentioned above, we would accept the view of Kerala, Bombay and Mysore High Courts in preference to that expressed by the Delhi High Court. It follows that under Article 21 of the Constitution no person can be deprived of his right to travel except according to procedure established by law. It is not disputed that no law was made by the State regulating or depriving persons of such a right.”
5. A similar view is reiterated in the decision rendered by 7-Judge Bench of this Court in Maneka Gandhi Vs. Union of India and another (1978) 1 SCC 248 wherein at page 280, it was held as under:
“5...Now, it has been held by this Court in Satwant Singh's case (supra) that 'personal liberty' within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law. Prior to the enactment of the Passports Act, 1967, there was no law regulating the right of a person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to the petitioner in Satwant Singh's case (supra) was struck down as invalid. It will be seen at once from the language of Article 21 that the protection it secures is a limited one. It safeguards the right to go abroad against executive interference which is not supported by law; and law here means 'enacted law' or 'State law' (Vide A.K. Gopalan's case). Thus, no person can be deprived of his right to go abroad unless there is a law made by the State prescribing t
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