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2010 Supreme(J&K) 440
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Mansoor Ahmad Mir, J.
Gh. Nabi -Appellant
Versus
State & Ors. -Resopndent
OWP No. 76-2010
Decided On : 06-08-2010
I.H. Bhat, Jagdish Parihar, Jatinder Choudhary.
No person can be deprived of the right to travel except according to the procedure established by law.
Headnote:
Passport - Fundamental Rights - The court held that the respondents' denial of passport to the petitioner without justification was illegal and in breach of his fundamental rights guaranteed by the Constitution. The court relied on the legal principle that no person can be deprived of the right to travel except according to the procedure established by law, as established in previous judgments.
Fact of the Case:
The petitioner's grievance was that the respondents withheld and denied the issuance of passport to him without justification, breaching his fundamental rights guaranteed by the Constitution. The respondents cited the involvement of the petitioner's cousin in militancy as the reason for denying the passport.
Finding of the Court:
The court found that the denial of the passport without justification was illegal and in breach of the petitioner's fundamental rights. The court directed the respondents to consider the petitioner's case for the grant/issuance of passport within a period of three months.
Issues: The main issue was whether the respondents' denial of the petitioner's passport without justification was legal.
Ratio Decidendi: The court relied on the legal principle that no person can be deprived of the right to travel except according to the procedure established by law, as established in previous judgments.
Final Decision: The court allowed the writ petition and directed the respondents to consider the case of the petitioner for the grant/issuance of passport within a period of three months.
The grievance projected in this writ petition is that respondents have withheld and denied the issuance of passport to the petitioner without any justification, which is in breach of his fundamental rights guaranteed by the Constitution.
Respondents have filed reply.
2. Respondents 1 and 2 have averred in their reply that the cousin of the petitioner, namely, Abdul Gani s/o Noor Mohd was involved in militancy and who later on passed away and, therefore, for this very reason the passport cannot be issued in favour of the petitioner.
3. It is apt to reproduce relevant portion of paras 5-8 of the reply:-
"5-8 That in reply to the contents of para No. 5 to 8 of the writ petition, it is submitted that the passport case of the petitioner was received in the office of respondent No. 2 from concerned passport office for verification of his character and antecedents as required under the provisions of passport Act. The same was sent to the field formation for verification and reports received thereof revealed that the cousin of petitioner namely Abdul Gani S/o Noor Mohd has joined militancy in year 2000 and later killed on 17.11.2001. The aim and objective of the militants working in J&K is to overawe the Government established by the law through subversive activities. In view of the said adverse reports received from the field agencies, the passport case of the applicant was sent as "Not Recommended" vide No. CID/PP/10 NR/00139/PNH dated 25.02.2010. Under these circumstances authorities cannot compromise with the security and integrity of the State and allow the petitioner to visit abroad on the Indian Passport."
The objection raised by respondents 3 and 4 is that the petitioner had not applied for renewal of the passport but had applied for grant of fresh passport and that the date of birth recorded in the fresh application is not correct. The said objection raised by respondents 3 and 4 is yet to be considered and the case of the petitioner was not rejected on the said ground.
4. The sole question required for consideration is that if `A’ commits a crime, can `B’ be punished for the same? The reply is in negative. Thus, in the given circumstances the action of the respondents on the face of it is illegal.
5. It be seen that claim of the petitioner was rejected by the Union of India on the ground of adverse report submitted by the respondent-State and not on the ground that he had not recorded his correct date of birth.
6. Thus objection raised by respondents 1 and 2 is not tenable. Respondents are under legal obligation to consider the case of the petitioner for granting passport.
7. The Apex Court in case titled Satwant Singh Sawhney v. D. Ramrathnam, (1967) 3 SCR 525 has held that no person can be deprived of his right to travel except according to the procedure established under law. It is apt to reproduce para-31 of the said judgment herein:
"31. 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."
8. Same view was taken by the Apex court in case titled Maneka Gandhi v. Union of India and another, (1978) 1 SCC 248. A Srinagar Bench of this Court also while dealing with identical cases, OWP No.551/2008 titled Sajad Ayoub Bhat v. State, and OWP No. 741/2008 titled Shafketh Rasool Baba v. State, has held that it is not permissible under law that when "A" has committed a crime, "B" should be punished for the same. In the instant case, respondents have taken a definite stand that there is nothing adverse in the CID records against the petitioner.
