Ajeit Saksena vs Binapani Dei [Air 1967 Sc 1269

Prayer in W.P.No.15525 of 2017 : Writ petition filed under Article 226 of the Constitution of India, to issue a writ of mandamus, directing the respondents to deliver and handover the petitioner's passport bearing No.Z2163410 taken from the petitioner possession on 23.05.2017.

Prayer in W.P.No.15533 of 2017 : Writ petition filed under Article 226 of the Constitution of India, to issue a writ of mandamus, directing the respondents to hand over the passport of the petitioner bearing NO.Z2379947 (Valid from 19.02.2012 till 18.02.2022 issued by Indian Consulate Dubai) which passport was taken by the first respondent on 23.05.2017 at Chennai so as to enable the petitioner to travel back to Dubai being the place of her normal residence with her ailing father Retd.Col.Suresh Chandra Saksena for attending to her ailing father's immediate medical needs among other reliefs.

(i) According to the petitioners, they are Indian Citizen and residents of Dubai and they are residing in Dubai for more than 20 years along with their family. The petitioners hold Indian passports bearing Nos.Z2163410 and Z2379947 issued by the Indian Consulate, Dubai. Their father, retired Col. Suresh Cahnda Saksena, aged about 83 years, has been residing in Dubai as a dependent of his daughter, viz., Shivani Rajiv Saxena (petitioner in W.P.No.15533 of 2017).

(ii) According to the petitioners, their father has been suffering form chronic heart disease, since the age of 35, after suffering a major heart attack while serving in a high altitude forward position during his tenure in the Indian Armed Forces. Their father had also suffered a heart discomfort and tightness in the chest in March 2017, which required hospitalization in Dubai and is constantly monitored by his cardiologists in Dubai for his heart ailments.

(iii) The petitioners brought their father to Chennai on 23.05.2017, as he had to undergo cornea transplant. The visit to Chennai was warranted in May 2017, as their father had undergone the said cornea transplant in one of the reputed Eye hospitals in Chennai in April 2017 had developed complications in one of the eyes, in which the transplant was done. Therefore, the petitioners brought him to Chennai on the advice of the Eye Doctor in Chennai, who had operated their father in April 2017, despite his cardiac conditions, as the Eye Doctor had assured that the rectification surgery of the cornea would be completed at the earliest in order to enable him to travel back to Dubai.

(iv) When the petitioners along with their father landed in Chennai on 23.05.2017, their father is in a state of blindness and confined to the wheel chair. On arrival at Chennai Airport, along with their father, the 1st respondent's officers detained them and their family at the Airport for over four hours on the ground that there was a look out notice for the petitioner in W.P.No.15533 of 2017, viz., Shivani Rajiv Saxena. However, as far as the petitioner in W.P.No.15525 of 2017 and their father are concerned, there was no such look out notice, which could have been issued against them. The 1st respondent, without any prior notice and authority, seized and illegally took possession and custody of the passports of all of them. The passport of their father was returned later, however, the authorities, without any power, decided to retain the passports of the petitioners.

(v) According to the petitioners, they were taken to the office of the 1st respondent at about 7.30 a.m. on 24.05.2017 and they were subjected to grueling examination by the 2nd respondent's officers from New Delhi, which examination lasted till 8.30 p.m. on that day. On the next date, i.e. on 25.05.2017, the petitioners were once again subjected to grueling examination by the 2nd respondent's officers from New Delhi, who continued questioning them on 26.05.2017. The petitioner in W.P.No.15525 of 2017, was examined even on 29.05.2017 and 30.05.2017.

(vi) According to the petitioners, the Doctors had fixed the date for operation on 29.05.2017 and had informed them that their father could travel at the earliest after the operation, on account of his cardiac problems. Therefore, the petitioners requested the 2nd respondent's officers from New Delhi to return their passports, so that, they could make travel arrangements to take back their father after the surgery, as he required immediate medical attention to his cardiac ailments.

(vii) The petitioner in W.P.No.15533 of 2017 is the sponsor and guardian and as the petitioners' father is holding a dependent visa, it is mandatory for her to accompany him at the time of his hospitalization in Dubai. Narrating all these facts, the petitioners sent letters to the respondents for the return of the passport.

(viii) According to the petitioners, they fully co-operated with the Investigating Officers and informed them whatever they know. According to the petitioners, no First Information Report is registered in India against them and they have a clear record with no criminal antecedents. The petitioners have also stated that they are always ready and willing to provide all necessary informations as required by the authorities including making their presence available after taking their father back to Dubai and making arrangements for his immediate medical needs. Since the respondents have not returned the passports, the petitioners have filed the above writ petitions.

5. The brief case of the respondents is as follows:-

(i) According to the respondents, the CBI has registered a case on 12.03.2013 under sections 7, 8, 9, 12, 13(2) r/w 13(1)(d) of POC Act read with 120-B, 420 IPC alleging that the Ministry of Defence signed a contract with M/s. Agusta Westland International Limited for supply of 12 AW 101 VVIP Helicopters. The said contract was given to the accused company after changing the required specifications of Helicopters in favour of accused company with dishonest intention after taking huge commission/bribe. On the basis of the aforesaid information, case for an offence under section 3 of Prevention of Money Laundering Act punishable under section 4 of the said Act, vide ECIR dated 03.07.2014, was recorded by Delhi Zonal Office of Directorate of Enforcement.

(ii) According to the respondents, during the investigation of the CBI as well as the respondents, it has been revealed that for getting the aforesaid contract for supply of 12 VVIP Helicopters from Ministry of Defene, Government of India, the Helicopters Manufacturing Company M/s.Agusta Westland International Limited , UK paid total 70 million Euro as kick backs. One Gothem Khaitan, in connivance with Rajiv Saxena (brother-in-law of the petitioner in W.P.No.15533 of 2017), along with other key persons were instrumental in laundering the bribe money being proceeds of crime both in India and Abroad. According to the respondents, money laundering was done through several consultancy contracts, which were executed between M/s.Agusta Westland with the company M/s.Gordian Services Sarl, Tunisia and M/s. IDS Sarl, Tunisia. These companies further executed subsequent consultancy contracts with M/s. Interstellar TTechnologies Ltd., Mauritius (company owned by Rajiv Saxena) M/s.IDS Infotech Ltd., Chandigarh, M/s.Aeromatrix Info Solutions Pvt., Ltd., India and others. These contracts were nothing but a subterfuge to transact huge amounts of kickbacks and eventually to make payments as illegal gratification to the public officials, the intermediaries and other concerned persons in India.

(iii) According to the respondents, during the investigation, various searches were conducted at the office premises of Gautam Khaitan, in which, various invoices and other incriminating documents were recovered, which revealed the association of Rajiv Saxena, Shivani Saxena and other associates with Gautam Khaian. Further, the respondents have stated that the petitioners have handed over their passport on their own volition for investigation. The respondents have stated that the Directorate has already filed two criminal complaints against other accused persons and the material information is still awaited and the investigation with regard to the role of the petitioners are still pending. In these circumstances, the respondents prayed for dismissal of the suit.

6. Heard Mr.B.Kumar, learned Senior Counsel, appearing for the petitioner in W.P.No.15525 of 2017, Mr.Haresh Jagtiani, learned Senior Counsel, appearing for the petitioner in W.P.No.15533 of 2017 and Ms.G.Hema, learned counsel appearing for the respondents.

7. The learned Senior Counsel appearing for the petitioners in both the writ petitions submitted that the respondents have no authority to impound the passports of the petitioners and therefore, the petitioners are entitled to get return of the passports from them. In support of their contentions, the learned Senior Counsel relied upon the following judgments:-

(i) 2008(3) Supreme Court Cases 674 (Suresh nanda v. Central Bureau of Investigation) wherein the Hon'ble Supreme Court held as follows:-

"16. Hence, while the police may have power to seize a passport under Section 102 Cr.P.C. if it is permissible within the authority given under Section 102 of Cr.P.C., it does not have power to retain or impound the same, because that can only be done by the passport authority under <act id=2bGwPokB_szha0nW_s88 section=10_3>Section 10(3) </act>of the Passports Act. Hence, if the police seizes a passport (which it has power to do under Section 102 Cr.P.C.), thereafter the police must send it along with a letter to the passport authority clearly stating that the seized passport deserves to be impounded for one of the reasons mentioned in <act id=2bGwPokB_szha0nW_s88 section=10_3>Section 10(3) </act>of the Act. It is thereafter the passport authority to decide whether to impound the passport or not. Since impounding of a passport has civil consequences, the passport authority must give an opportunity of hearing to the person concerned before impounding his passport. It is well settled that any order which has civil consequences must be passed after giving opportunity of hearing to a party vide State of Orissa Vs. Binapani Dei [Air 1967 SC 1269]

18. In our opinion, 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, in our opinion, this 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. The 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. Singh's 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."

(ii) 2016(3) L.W. 850 (S.M.Shoba v. The Joint Secretary (PSP) & Passport Officer, Ministry of External Affairs, New Delhi and others) wherein, this court held as follows:-

"8.This Court is of the view that filing a Writ Petition seeking direction to the Passport Authority to impound the passport of the rival parties in a family dispute is nothing but a tactics has now been invented to somehow harass the other side either way. Therefore, if every case like this is started, it will put to irreparable loss to the other party unless a firm thing is made out before the Court to show that the party has violated any conditions. Impounding the passport is not an automatic and routine one and under the caption of consideration of representation the petitioner cannot think that a positive direction would be given. Therefore, this Court is not passing any order. Accordingly, the Writ Petition is dismissed. No costs."

(iii) 2014(4) L.W. 841 (Arockia Jeyabalan v. The Regional Passport Officer, Mount Road, Chennai & others) wherein, this court held as follows:-

21. Section 10(3) of the Passports Act, 1967 prescribes that the Passport Authority may impound or cause to be impounded a passport under certain circumstances. Section 10(3) of the Act reads as follows :

"The Passport Authority may impound or cause to be impounded or revoke a passport or travel document,

(a) if the Passport Authority is satisfied that the holder of the passport or travel document is in wrongful possession thereof;

(b) if the passport or travel document was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the passport or travel document or any other person on his behalf.

[Provided that if the holder of such passport obtains another passport, the Passport Authority shall also impound or cause to be impounded or revoke such other passport.]

(c) if the Passport Authority deems it necessary so to do 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;

(d) if the holder of the passport or travel document has, at any time after the issue of the passport or travel document, been convicted by a Court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years;

(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;

(f) if any of the conditions of the passport or travel document has been contravened;

(g) if the holder of the passport or travel document has failed to comply with a notice under Sub-Section (1) requiring him to deliver up the same;

(h) if it is brought to the notice of the Passport Authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a Court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such Court and the Passport Authority is satisfied that a warrant or summons has been so issued or an order has been so made."

(iv) MANU/TN/0053/2008 (Natarajkumar v. Deputy Superintendent of Police CBI BS and FC) wherein, this court held as follows:-

"7. There is no dispute to the fact that the passport of the petitioner which was seized by the respondent during the course of investigation has no relevance to the case. The respondent has indirectly stalled the prospects of the petitioner going abroad by retaining his passport even after the investigation was completed. It is made clear that a right of a person to travel abroad is a fundamental right guaranteed under Article 21 of the Constitution of India. Unless a competent Court interdicts or prevents a person from traveling abroad by impounding the passport, no investigating agency can simply retain the passport restraining the citizen from going abroad. Admittedly, the passport was not impounded as per the orders passed by the competent court. When the passport has no nexus with the crime alleged to have been committed by the petitioner and no order has also been passed by a competent Court to impound the passport, the respondent has no authority to retain the passport of the petitioner, especially, after the investigation was completed."

8. Countering the submissions made by the learned Senior Counsels appearing for the petitioners, Ms.G.Hema, learned counsel appearing for the respondents submitted that the petitioners on their own volition have surrendered their passports to the respondents and that the passports are with the respondents for the reason that the investigation has not yet been completed by the respondents.

9. On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side, it could be seen that there is no dispute that the respondents are in possession of the petitioners' passports. Though the respondents contend that the petitioners have surrendered their passports on their own volition, in spite of the petitioners repeated letters and requests seeking for return of the passports, the respondents have not returned the passports to them so far. From this it is clear that the petitioners have not surrendered the passport on their own volition. The respondents have no power to retain or impound the passports for the reason that the passports can be impounded only by the Passport Authority under section 10(3) of the Passports Act. Therefore, if the respondents seizes a passport, thereafter they must send it along with a letter to the Passport Authority clearly stating that the seized passport deserves to be impounded for one of the reasons mentioned in section 10(3) of the Act. It is thereafter for the the Passport Authority to decide whether to impound the passport or not. Since impounding of the passport has civil consequences, the Passport Authority must give an opportunity of hearing to the petitioners concerned before impounding their passports. The Passports Act is a special law while the Cr.P.C. is a general law. It is also well settled that the special law prevails over the general law.

10. The ratio laid down by the Hon'ble Supreme Corut of India in the judgment reported in 2008(3) Supreme Court Cases 674 (cited supra) squarely applies to the facts and circumstances of the present case.

11. Following the ratios laid down by the Hon'ble Apex Court and also the judgments relied upon by the learned counsel for the petitioners, I am of the view that the passports of the petitioners should be handed over to the petitioners. Accordingly, I direct the respondents to hand over the passports bearing Nos.Z2163410 and Z2379947, which were taken by the 1st respondent on 23.05.2017 at Chennai to the petitioners, within one week from the date of receipt of a copy of this order.

With these observations, the writ petitions are allowed. No costs. Consequently, connected Miscellaneous petitions are also closed.

01.08.2017 Index: Yes/No Note : Issue today Rj To 1 The Deputy Director Directorate of Enforcement Chennai Zonal Office 2nd & 3rd Floor Murugesa Naicker Complex No.84, Greams Road Chennai-600 006 2 The Assistant Director Directorate of Enforcement Delhi Zonal Office MTNL Building, 1st & 2nd Floor Jawaharlal Nehru Marg New Delhi-110 002 M.DURAISWAMY, J., Rj Order in W.P.Nos.15525 & 15533 of 2017 & W.M.P.Nos.16841 & 16846 of 2017 01.08.2017