Biswajit Mohanty, J.@mdashThe petitioner has filed the above noted CRLMP with a prayer to direct opposite party No. 2 to release his
passport.
2. The case of the petitioner is that he has successfully completed a three months Pre-Sea Course for Deck Cadets approved by the Directorate
General of Shipping, Government of India (Annexure-1) and has also got a Certificate of Competency as ""First Mate of a Foreign Going Ship
which has been issued by the Government of India. Further, according to the petitioner, he has been issued with Continuous Discharge Certificate-
cum-Seafarers Identity Document by the Government of India, Ministry of Shipping. Thus, he is only qualified to take up jobs involving sail.
Initially, the petitioner was issued with a passport for the period of ten years from 2002 to 2012. After expiry of the said period, he applied for
renewal of his passport under ""Tatkal Scheme"". Accordingly, he was issued with a renewed passport for the period from 1.11.2012 to
31.10.2022 vide Annexure-4. According to him as per Tatkal Scheme, there is a procedure for police verification after issuance of passport by the
Passport Officer. The petitioner left India on 27.11.2012. This has been indicated in Annexure-6. Some thereafter police verification started and
thus the petitioner was not available at his present address at Bhubaneswar. In such background, vide Annexure-5/Annexure-B/2 dated
23.9.2013, the Regional Passport Officer, Bhubaneswar intimated the petitioner that as per Police Verification Report, he was not residing at the
address given in his application dated 31.10.2012 for issuance of passport. Accordingly, the petitioner was directed to furnish his correct present
address with necessary clarification. Pursuant to the letter under Annexure-5, the petitioner vide letter dated 26.9.2013 (Annexure-6) intimated
opposite party No. 2 that he had left India on 27.11.2012 and the police verification was done during February, 2013 in his absence. In that view
of the matter, he requested opposite party No. 2 to reconsider his case for police verification. While submitting the letter dated 26.9.2013 under
Annexure-6, the petitioner was asked to surrender his passport for completion of police verification and accordingly, the petitioner surrendered the
same on 26.9.2013 on good faith. Such receipt of passport with good condition has been acknowledged on the body of the representation dated
26.9.2013 at Annexure-6. However, it is the grievance of the petitioner that opposite party No. 2 has been sitting over the matter since then and is
thus not releasing his passport. Therefore, he is unable to join his duties. Sometime after submission of representation under Annexure-6 dated
26.9.2013; on 3.10.2013 the wife of the petitioner filed an FIR (Annexure-7) before Bhubaneswar Manila Police Station (UPD) bearing
Bhubaneswar UPD Manila P.S. Case No. 260(2) of 2013 implicating the petitioner and his family members under Sections 498-
A/323/294/377/307/506/34, IPC read with Section 4 of the D.P. Act. On 9/11.12.2013, the petitioner again requested opposite party No. 2 vide
Annexure-8 to release his passport at the earliest. Though the same was duly received by the authorities, however when nothing was done, the
petitioner filed WPCRL No. 76 of 2014 which was later converted to CRLMP No. 256 of 2014 with the prayer that a direction be issued to
opposite party No. 2 to release his passport.
According to the petitioner during pendency of the present case, vide letter No. RTI/07/2014/BH1071633455712 dated 20/02/2014/1050, the
Passport Officer and CPIO, Bhubaneswar intimated that the passport of the, petitioner is in safe custody and the same will be
suspended/impounded after receiving the Court order for the same. This makes it clear that till date the passport of the petitioner has been retained
by opposite party No. 2 in an illegal manner without suspending/impounding the same. In the meantime, more than eight months have been passed.
In such background, the petitioner prays for a direction to opposite party No. 2 to release his passport.
3. Pursuant to the orders dated 31.3.2014, 22.4.2014 and 6.5.2014 passed by this Court, the Passport Officer-opposite party No. 2 has filed a
counter-affidavit. While not disputing the factual averments made in the CRLMP/case of the petitioner as indicated above, opposite party No. 2
submits that the passport of the petitioner has been kept in safe custody and the same will be handed over the petitioner on receipt of police
verification clearance report from the DCP, Bhubaneswar and on clearance from the concerned Court with regard to the Bhubaneswar Mahila
P.S. Case No. 260(2) of 2013. In the counter-affidavit, it is further stated that a letter has been issued from the passport office to the petitioner as
well as the IIC, Manila Police Station, Bhubaneswar regarding police and Court cases in connection with Bhubaneswar Mahila P.S. Case No.
260(2) of 2013.
4. Heard Ms. Bahal, learned counsel for the petitioner, Ms. S. Biswal, on behalf of the Assistant Solicitor General of India and Mr. D. Panda,
learned Additional Government Advocate for the State.
5. Ms. Bahal, learned counsel for the petitioner mainly submits that the Passport of the petitioner has been retained by the Passport Officer-
opposite party No. 2 without any authority of law inasmuch as till date there exists neither any order from the appropriate authority either
impounding the passport or suspending the same. In this context, she relies upon the letter dated 20.2.2014 issued by the Passport Officer to the
effect that the passport of the petitioner will be impounded or suspended after receiving the Court''s order. According to her, the petitioner had
surrendered his passport on 26.9.2013 in good faith as per request of authorities with a hope that after completion of police verification, the
passport will be returned to him. She further submits that on that date there was no FIR pending against the petitioner. The FIR was lodged against
the petitioner and his family members much after, i.e. on 3.10.2013 vide Annexure-7. In any case, Ms. Bahal submits that the authorities cannot
retain a valid passport without impounding the same as provided u/s 10 of the Passport Act, 1967 (in short ""1967 Act""). Such action of opposite
party No. 2 is not backed by any provisions of law. She further submits that admittedly, till date there exists no order under Sub-section (3) of
Section 10 of 1967 Act. In such background, retention of passport for a period of more than eight months is illegal, arbitrary and mala fide. In
support of her contention, she relies on a decision of the Hon''ble Supreme Court reported in Suresh Nanda Vs. C.B.I., and a judgment dated
5.8.2013 pronounced by the High Court of Delhi at New Delhi in W.P.(C) No. 4853 of 2013 (Manish Kumar Mittal v. Chief Passport Officer
and another). She further submits that till date no Investigating Agency or Court has issued any order barring release of passport of the petitioner to
him and even the petitioner has not been given any post-decisional hearing.
6. Per contra, Ms. Biswal, learned counsel for opposite party No. 2 contended that since a police case is pending against the petitioner the
passport has been kept in safe custody and it would be handed over the petitioner on receipt of Police Verification Clearance Report and on
clearance from the concerned Court in Mahila P.S. Case No. 260(2) of 2013.
7. On an analysis, the undisputed facts in this case are as follows:
Vide Annexure-4 the petitioner was issued with a passport for a period from 1.11.2012 till 31.10.2022. On 27.11.2012, the petitioner had left
India. On 26.2.2013, it appears that as per Annexure-A/2 attached to the counter-affidavit, the police carried necessary verification and found that
the petitioner was not available in the address given by the petitioner in his application. In such background the letter dated 23.9.2013 (Annexure-
5/Annexure B/2) was issued to the petitioner to furnish his correct present address with clarification. Accordingly, on 26.9.2013 vide Annexure-6,
the petitioner submitted his clarification and as stated in Paragraph-2 of Misc. Case No. 129 of 2014 arising out of the instant case, he surrendered
his passport on 26.9.2013 before opposite party No. 2 for facilitating the police verification on being so asked. On that date i.e. 26.9.2013 no
FIR was pending against the petitioner at Bhubaneswar Manila Police Station. Only on 3.10.2013 an FIR was registered at Bhubaneswar Mahila
Police Station under Annexure-7 by the wife of the petitioner against him and his family members. On 9/11.12.2013, the petitioner requested the
Passport Officer for returning his passport as the same was urgently required by him. According to learned counsel for the petitioner, the petitioner
on account of non-availability of passport has been forced to stay back and in the meantime, has taken several extension of time to join his duty.
He apprehends that no more extension of time may be allowed by the employer and he may lose his job. All these have been indicated in Misc.
Case No. 129 of 2014. During pendency of this case pursuant to a query under the RTI Act, the Passport Officer as indicated earlier vide letter
dated 20.2.2014 has intimated that the passport of the petitioner is in the safe custody of the Regional Passport Office and the same will be
impounded/suspended after receiving the Court''s order for receiving the same. All these make it clear that till date the passport of the petitioner
has neither been impounded nor has been suspended. Further there exists no order from any authority barring release of passport The Passport
Act, 1967 makes clear cut provision for impounding of the passport u/s 10 of 1967 Act and for suspension of passport u/s 10-A of 1967 Act.
Here admittedly, till date no order has been passed to impound the passport or to suspend the same. In such background, it is clear that retention
of passport by opposite party No. 2 without following the provisions of Sections 10 and 10-A of 1967 Act for a period of eight months is clearly
illegal.
Learned counsel for opposite party No. 2 also could not bring to the notice of this Court any provisions of law to support the action of opposite
party No. 2 in retaining the passport for a period of more than 8 months without impounding the same. Only on the ground that the passport will be
impounded/suspended after receiving the Court''s order, the passport cannot be retained by opposite party No. 2. There is no sanction of law for
such action of opposite party No. 2. Further with regard to the stand of opposite party No. 2 that the passport will be returned to the petitioner on
police verification clearance report and on clearance from the concerned Court in connection with Bhubaneswar Mahila P.S. Case No. 260(2) of
2013, it can only be said that provisions of 1967 Act do not support such stand of opposite party No. 2. In this context, let us have a look at
relevant provision of 1967 Act. A bare reading of Clause (e) of Sub-section 3 of Section 10 makes it clear that the passport authority may
impound or cause to be impounded or revoke a passport or travel document, 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. Further Sub-section (5) of Section 10 of
1967 Act makes it clear that where a passport authority makes an order impounding or revoking a passport or travel document under Sub-section
(3) of Section 10, it shall record in writing a brief statement of the reasons for making such order and furnish to the holder of the passport or travel
document on demand a copy of the same unless the passport authority is of the opinion that it will not be in the interests of the sovereignty and
integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public to furnish such a
copy. Similarly Section 10A makes provision for suspension of passport. In the present case admittedly, no steps have been taken either u/s 10 or
u/s 10A of 1967 Act. Thus, there exists no order u/s 10(3)(e) or Section 10A of 1967 Act to impound/suspend the passport. Law is equally well
settled that since impounding of a passport has civil consequences, the passport authority has to give an opportunity of hearing to the person
concerned before impounding his passport and in case that is not possible in the exigency of circumstances, a post-decisional hearing has to be
given to the affected party immediately. See (1978) 1 Supreme Court Cases 248). Here the passport authority has neither followed the provisions
of law nor followed the established principles of law by retaining the passport of the petitioner. In such background, retention of passport for a
period of eight months is clearly without any authority of law. For all these reasons, this Court holds that retention of passport of the petitioner
without taking recourse to relevant provisions of law is clearly illegal and accordingly this Court directs opposite party No. 2 to release the
passport in favour of the petitioner forthwith. Further this Court grants liberty to opposite party No. 2, to go for impounding/suspending of
passport of the petitioner, if it so desires, only in accordance with law. Further in order to ensure that after getting the passport, the petitioner does
not flee the country and continues to cooperate with the criminal investigation/trial, it is directed that till a fresh order is passed by opposite party
No. 2 in accordance with law, the petitioner should not leave the country without prior permission of the Court where the criminal trial is pending
against him.
8. This Court makes it clear that it has expressed no opinion as to whether the passport of the petitioner should be impounded/suspended or not.
The CRLMP is accordingly disposed of.
