IMPORTANT POINTS
The passport issuing authority or any of the authorities under the Act, 1967 are given powers under the Passports Act, 1967 or Rules framed there under, to initiate prosecution for the contravention of the provisions of the Passports Act, 1967. A reading of the provision further shows that, the power to punish with imprisonment is conferred only to the Magistrates as provided under the Code of Criminal Procedure. Fine as an alternative to imprisonment on finding guilty, can only be imposed by ompetent Magistrate who adjudicates the issue on the basis of any complaint filed by the passport authority.

JUDGMENT :

S. Manikumar, J.

This is a public interest litigation filed by an organisation registered apparently under the provisions of the Travancore -Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, and one of its members. The issues raised arise under the Passports Act, 1967. The poignant question raised is whether an authority under the Passports Act, 1967, has any power to impose penalty/fine invoking the powers under Section 12 of the Act 1967. It is submitted by the petitioners that as per relevant provisions of the Passports Act, 1967, a passport authority defined under Section 2(c) of the Act has only delegated powers to issue passport under Section 5(2)(a) or reject an incomplete passport application under Section 5(2)(c) or refuse a passport under Section 6(2) or restrict the validity under Section 7(b) or impound/revoke a passport under Section 10(3) of the said Act, and not to impose any penalty.

2. The case projected by the petitioners is that there is no provision empowering any officer to impose pecuniary penalty under the Act 1967, even though Section 12 of the Act prescribes offences and penalties, and the manner in which the power to be discharged, in accordance with the adjudicatory mechanism prescribed there under. According to the petitioners, even without the power for imposing any fine in violation of the provisions of Sections 5, 6, 7 and 10, the fine is being imposed by the authorities which is arbitrary and illegal. It is also pointed out that the offences and penalties under Section 12 of the Act 1967 are criminal in nature and a passport authority is not empowered to launch a criminal investigation against the passport applicants/holders who allegedly commit/committed offences under Section 12 of the Act. That apart, as per Section 15 of the Act 1967, the sanction for prosecution for any offence under the Act 1967 can only be given by the Government of India or any authority authorised by the Government of India. It is pointed out that the said power has been delegated to the State Governments as per GSR 662(E) dated 1.12.1979.

3. Therefore, the sum and substance of the contention put forth by the petitioners is that the legal requirement under Section 15 makes it vivid and explicit that the passport authority is not empowered to initiate any prosecution under Section 12(1)(b). So also, it is submitted that the High Court of Gujarat as well as the High Court of Delhi had occasion to consider the issue and held that the authority under the Passports Act invoking Section 12 of the Act 1967 has no power to impose penalty. Petitioners have also produced various documents to establish that the Government of India has understood the issue in its proper perspective and it is accordingly that Ext.P11 Memorandum dated 16.12.2015 is issued, wherein it is stated that the Ministry intends to review and to amend the Passports Act, 1967 and Rules made there under, in the wake of the judgment of the High Court of Delhi dated 12.4.2013 in W.P. (C)No.5818 of 2011. Therefore, it is ordered that “It is of the considered view of the Department of Legal Affairs not to file an appeal against the impugned order dated 12/04/2013 but to amend the Passports Act, 1967 to the extent to incorporate the provision as regards institution of adjudicating authority in the Act to exercise the power of imposing the pecuniary penalty on the violators of the Passports Act, 1967 so that the power to levy as well as collect the pecuniary penalty in terms of Section 12 of the Act could be exercised by the passport authority itself”. So much so, as per the Office Memorandum, suggestions were sought from the passport issuing authorities with regard to the amendment of the Passports Act, 1967. A time limit is also prescribed there under for the suggestions/comments as required under the memorandum.

4. A detailed counter affidavit is filed by the Union of India and its officials refuting the averments, claims and demand