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2024 Supreme(Online)(KER) 12303
HIGH COURT OF KERALA
BECHU KURIAN THOMAS, J
DAVOOD – Appellant
Versus
STATE OF KERALA – Respondent
CRL.MC NO. 5301 OF 2022 | CRL.MP 1260/2022 | OR 5/2021
For the Appellants/Petitioners: SRI.V.V.JOY, SRI.RAJIT, SRI.RAMAKRISHNAN M.N.
For the Respondents: SMT.V.SREEJA, SRI.K.R.RAJAGOPALAN NAIR, SRI.NAVANEETH N. NATH
Documents like passports cannot be retained by law enforcement absent specific legal authority, and must be released if unconnected to the alleged crime.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Code of Criminal Procedure, 1973 - Sections 451 and 482 - Seizure of passport and mobile phone - Interim custody of passport denied by Sessions Court, ruling irrelevant to the crime - Seizure of documents requires legal authority; the police cannot impound passports, which must be done by the Passport Authority. (Paras 8, 9, 10, 11)
(B) Seizure and Retention of Documents - Authority of law and parameters of retention discussed - A passport cannot be retained if no condition exists for its deposit as per bail. (Paras 11, 12)
Facts of the case:
The petitioner challenged the seizure of his passport and mobile phone during an investigation related to drug trafficking, arguing that these items were unconnected to the crime. (Paras 1, 4, 6)
Findings of Court:
Retention of the passport, mobile phone, and ID card was deemed illegal and contrary to the law, resulting in an order for their return. (Paras 10, 14)
Issues: Whether the investigative authority can retain the passport and other personal items unrelated to the crime.
Ratio Decidendi: The court clarified that documents, specifically passports, cannot be retained without explicit legal grounds or conditions. The need for a forensic analysis must not inhibit a citizen’s rights without just cause. (Paras 8, 10)
Result: Crl.M.C. allowed; impugned order set aside and seizure declared illegal.
| Table of Content |
|---|
| 1. seizure of documents related to bail (Para 1 , 2 , 3) |
| 2. arguments about the seizure legality (Para 4 , 5) |
| 3. investigation and document retention (Para 6 , 7 , 8) |
| 4. differentiating seizure and impounding of passports (Para 9 , 10 , 11) |
| 5. court's final orders on document return (Para 12 , 13 , 14) |
ORDER
Petitioner's passport was seized by the Intelligence Officer of the Narcotics Control Bureau alleging commission of an offence under the Narcotic Drugs and Psychotropic Substances Act,1985 (for short 'the NDPS Act'). Petitioner's application for interim custody of his passport filed under section 451 of the Code of Criminal Procedure, 1973 (for short ' Cr.P.C .') was dismissed by the impugned order and hence this challenge under section 482 Cr.P.C .
2. On 12.09.2021, a parcel was allegedly received at a Cargo office at Kochi and on verification it was found that the parcel contained 3.500 kgs of hashish oil in 8 containers and the consignee's address and the mobile number was that of the petitioner. For the last ten years, petitioner had been working in Bahrain and he came down to India only on 11.03.2022. He was interrogated, and arrested on 02.04.2022, and his passport, identity card issued by the Kingdom of Bahrain and his mobile phone were seized. Petitioner was later released on bail on 09.05.2022.
3. In the meantime, petitioner filed Crl.M.P. No.1260 of 2022 before the Sessions Court, Ernakulam, under section 451 Cr.P.C . seeking release of his passport, ID card and mobile phone, which were all seized by the police at the time of his arrest. The learned Sessions Judge by the impugned order, dismissed the application after observing that since there is a condition in the bail order that he shall not leave the State of Kerala without the permission of the trial court, the release of his passport will not serve any purpose. It was further observed that if the identity card and other materials are returned, he may misuse the same.
4. Sri. Arjun, the learned counsel for the petitioner contended that the materials seized cannot be retained by the respondents since they are unconnected with the crime. It was also contended that the seizure of the passport by the second respondent itself was done without authority of law as it was not at all involved in the crime. The articles seized ought to have been released to the petitioner, argued the learned Counsel. In support of his contentions, he referred to the decisions inSunderbhai Ambalal Desai v. State of Gujarat (2002) 10 SCC 283 as well as the decision in Suresh Nanda v. Central Bureau of Investigation (2008) 3 SCC 674 .
5. Sri. Navneeth N.Nath, learned counsel for the second respondent on the other hand, contended that the petitioner's involvement in the trafficking of drugs has been identified, and his involvement with other accused is also evident from the records. The petitioner, according to the learned counsel, is working as a Security Guard in the Bahrain jail, and the Whatsapp chats have revealed that he and the other accused had discussed the case and the related legal issues. According to the second respondent, the mobile phone is required to be sent for forensic analysis and data extraction and if the passport is released, he will flee away from the clutches of law apart from misusing his identity card and, therefore the impugned order needs no interference.
6. The main question to be considered is whether the passport, the mobile phone and the identity card of the petitioner can be retained by the second respondent during the course of the investigation.
7. The contraband items were seized on 12.09.2021 while the petitioner was arrested on 02.04.2022. At the time of his arrest, petitioner’s passport, identity card and mobile phone were seized from him. While releasing the petitioner on bail on 09.05.2022, a condition was imposed that he shall not leave the State of Kerala without the permission of the trial court. There was no condition directing the de
