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498a Discussion Forum - View topic - SC: Police and even courts cannot impound passport
It is currently Tue Dec 06, 2022 2:13 am



Reply to topic  [ 6 posts ] 
SC: Police and even courts cannot impound passport 
Author Message

Joined: Sat Apr 01, 2006 12:43 pm
Posts: 1405
Location: chennai
' 1
http://courtnic.nic.in/supremecourt/qrydisp.asp
IN TH E SU P R E M E COUR T OF INDI A

CRIM I N A L AP P E L L A T E JUR I S D I C T I O N

CRIM I N A L AP P E A L NO. 1 7 9 OF 2 0 0 8
[ ARI S I N G OUT OF S.L. P .(C R L .) 3 4 0 8 OF 2 0 0 7 ]



SUR E S H NANDA ...
AP P E L L A N T

VE R S U S

C.B.I. ...R E S P O N D E N T

OR D E R

1. Leave granted.


2. The appellant claims to be a non- resident Indian settled in United Kingdom for the last 2 3 years. The passport of the appellant as well as other documents were seized by the respondent from 4, P rithvir aj Road, New Delhi in a search conducted on 1 0. 1 0 . 2 0 0 6 when the appellant was on a visit to India. The said search and seizure was pursuant to an F.I. R . dated 9.1 0 . 2 0 0 6 registered on the basis of a sting operation carried out by a news portal in the year 2 0 0 1 . The passport seized during the search was retained by the C.B.I. officials. An
application was moved by the appellant before the Special Judge, C.B.I., P ati al a House Courts, New Delhi praying for release of his passport so that he can travel abroad to London and Dubai for a period of 1 5 days.

The learned Special Judge, by order dated 1 5. 1 . 2 0 0 7 , directed the

release of the passport to the appellant by imposing upon him certain
2

conditions. Aggrieved against the order passed by the learned Special

Judge, C.B.I., the respondent preferred a Crimin al Revision before the

High Court. The High Court, by order dated 5.2. 2 0 0 7 , reversed the

order of the learned Special Judge and refused to release the passport to

the appellant. Aggrieved against the order of the High Court, present

appeal, by special leave, has been preferred by the appellant.

3. Learned senior counsel appearing for the appellant submitted

that the power and jurisdiction to impound the passport of any

individual has to be exercised under the P a s sports Act, 196 7

(hereinafter referred to as "The Act"). He specifically referred to sub-

section (3)(e) of Section 1 0 of the Act which reads as under:

"(3) The passport authority may impound or cause to be
impounded or revoke a passport or travel document -
(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:"

Reference was also made to Section 1 0 A of the Act which has been

introduced by Act 1 7 / 2 0 0 2 w.e.f. 1 7. 1 0 . 2 0 0 1 .



4. Learned senior counsel for the appellant also placed reliance on

the decision of 5- Judge Bench of this Court in Satwant Singh Sawhney

Vs. D. Ra m a r a th n a m , Asstt. P a s sport Officer (19 6 7 ) 3 SCR 525

wherein in para 3 1, it was held as under:



"3 1 : For the reasons mentioned above, we would accept
the view of Ker al a , Bombay and Mysore High Courts in
preference to that expressed by the Delhi High Court. It
follows that under Article 2 1 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."



5. A simila r view is reiterated in the decision rendered by 7- Judge

Bench of this Court in Manek a Gandhi Vs. Union of India and another

(19 7 8 ) 1 SCC 2 4 8 wherein at page 2 8 0 , it was held as under:



"....Now, it has been held by this Court in Satwant Singh's
case (supra) that 'personal liberty' within the meaning of
Article 2 1 includes within its ambit the right to go abroad
and consequently no person can be deprived of this right
except according to procedure prescribed by law. P rior to
the enactment of the P a s sports Act, 1 9 6 7 , there was no
law regulating the right of a person to go abroad and that
was the reason why the order of the P a s sport Officer
refusing to issue passport to the petitioner in Satwant
Singh's case (supra) was struck down as invalid. It will be
seen at once from the language of Article 2 1 that the
protection it secures is a limited one. It safeguards the
right to go abroad against executive interference which is
not supported by law; and law here means 'enacted law'
or 'State law' (Vide A.K. Gopalan's case). Thus, no person
can be deprived of his right to go abroad unless there is a
law made by the State prescribing the procedure for so
depriving him and the deprivation is effected strictly in
accordance with such procedure....."

6. On the other hand, learned Additional Solicitor General

appearing for the respondent submitted that the passport was seized

and impounded by exercising the powers under Section 1 0 2 read

with Sections 1 6 5 and 1 0 4 of Code of Crimin al P rocedure (hereinafter

referred to as "the Cr.P .C."). He further contended that the power to

retain and impound the passport has been rightly exercised by the
4

respondent as there is an order dated 3.1 1 . 2 0 0 6 passed by the learned

Special Judge for C.B.I. exercising the power under Section 1 0 4 of

Cr. P.C.



7. Sub- section (3)(e) of Section 10 of the Act provides for

impounding of a passport 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. Thus, the

P a s sport Authority has the power to impound the passport under the

Act. Section 1 0 2 of Cr.P .C. gives powers to the police officer to seize

any property which may be alleged or suspected to have been stolen or

which may be found under circumstances which create suspicion of the

commission of any offence. Sub- section (5) of Section 1 6 5 of Cr. P.C.

provides that the copies of record made under sub- section (1) or sub-

section (3) shall forthwith be sent to the nearest Magistrate

empowered to take cognizance to the offence whereas Section 1 0 4 of

Cr. P.C. authorizes the court to impound any document or thing

produced before it under the Code. Section 165 of Cr.P .C. does

not speak about the passport which has been searched and seized as

in the present case. It does not speak about the documents found in

search, but copies of the records prepared under sub- section (1) and

sub- section (3). "Impound" means to keep in custody of the law.

There must be some distinct action which will show that documents or

things have been impounded. According to the Oxford Dictionary

"impound" means to take legal or formal possession. In the present

case, the passport of the appellant is in possession of CBI right from

the date it has been seized by the CBI. When we read Section 1 0 4 of

Cr. P.C. and Section 1 0 of the Act together, under Cr.P .C., the Court is

empowered to impound any document or thing produced before it

whereas the Act speaks specifically of impounding of the passport.

8. Thus, the Act is a special Act relating to a matter of passport,

whereas Section 1 0 4 of the Cr.P .C. authorizes the Court to impound

document or thing produced before it. Where there is a special Act

dealing with specific subject, resort should be had to that Act instead

of general Act providing for the matter connected with the specific Act.

As the P a s sports Act is a special act , the rule that "general provision

should yield to the specific provision" is to be applied. See : Damji

Valaji Shah & another Vs. L.I.C. of India & others [AIR 1 9 6 6 SC

1 3 5 ]; Gobind Sugar Mills Ltd. Vs. State of Biha r & others [19 9 9 ( 7)

SCC 7 6]; and Belsund Sugar Co. Ltd. Vs. State of Biha r and others

[AIR 1 9 9 9 SC 3 1 2 5 ] .

9. The Act being a specific Act whereas Section 1 0 4 of Cr. P.C. is a

general provision for impounding any document or thing, it shall prevail

over that Section in the Cr.P .C. as regards the passport. Thus, by

necessary implication, the power of Court to impound any document or

thing produced before it would exclude passport.



1 0. In the present case , no steps have been taken under Section 1 0
6

of the Act which provides for variation, impounding and revocation of

the passports and travel documents. Section 1 0 A of the Act which

provides for an order to suspend with immediate effect any passport or

travel document; such other appropriate order which may have the effect

of rendering any passport or travel document invalid, for a period not

exceeding four weeks, if the Central Government or any designated

officer on its satisfaction holds that it is necessary in public interest to

do without prejudice to the generality of the provisions contained in

Section 1 0 by approaching the Central Government or any designated

officer. Therefore, it appears that the passport of the appellant cannot

be impounded except by the P a s sport Authority in accordance with law.

The retention of the passport by the respondent (CBI) has not been done

in conformity with the provisions of law as there is no order of the

passport authorities under Section 1 0( 3)(e) or by the Central

Government or any designated officer under Section 1 0 A of the Act to

impound the passport by the respondent exercising the powers vested

under the Act.

1 1. Learned Additional Solicitor General has submitted that the

police has power to seize a passport in view of Section 1 0 2( 1) of the

Cr.P .C. which states:

" Power of police officer to seize certain property:(1) Any
police officer may seize any property which may be
alleged or suspected to have been stolen, or which may
be found under circumstances which create suspicion of
the commission of any offence".

In our opinion, while the police may have the power to seize a passport
7

under Section 1 0 2( 1) Cr. P.C, it does not have the power to impound the

same. Impounding of a passport can only be done by the passport

authority under Section 1 0( 3) of the P a s sports Act, 1 9 6 7 .



1 2. It may be mentioned that there is a difference between seizing

of a document and impounding a document. A seizure is made at a

particular moment when a person or authority takes into his possession

some property which was earlier not in his possession. Thus, seizure is

done at a particular moment of time. However, if after seizing of a

property or document the said property or document is retained for

some period of time, then such retention amounts to impounding of the

property/or document. In the Law Lexicon by P. Ra m a n a th a Aiyar (2 nd

Edition), the word "impound" has been defined to mean "t o tak e

pos s e s s i o n of a d o c u m e n t or thi n g for bei n g hel d in cust o d y in

acc o r d a n c e wit h la w " . Thus, the word "impounding" really means

retention of possession of a good or a document which has been seized.



1 3. Hence, while the police may have power to seize a passport

under Section 1 0 2 Cr. P.C. if it is permissible within the authority given

under Section 1 0 2 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 Section 1 0( 3) of the P a s sports Act. Hence, if the police

seizes a passport (which it has power to do under Section 1 0 2 Cr.P .C.),

thereafter the police must send it along with a letter to the passport
8

authority clearly stating that the seized passport deserves to be

impounded for one of the reasons mentioned in Section 1 0( 3) 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. Binap ani Dei

[Air 1 9 6 7 SC 1 2 6 9 ] .



1 4. In the present case, neither the passport authority passed any

order of impounding nor was any opportunity of hearing given to the

appellant by the passport authority for impounding the document. It

was only the CBI authority which has retained possession of the

passport (which in substance amounts to impounding it) from October,

200 6. In our opinion, this was clearly illegal. Under Section 1 0 A of the

Act retention by the Central Government can only be for four weeks.

Thereafter it can only be retained by an order of the P a s sport authority

under Section 1 0( 3).



1 5. In our opinion, even the Court cannot impound a passport.

Though, no doubt, Section 1 0 4 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
9

document or thing other than a passport.
This is because impounding a

"passport" is provided for in Section 1 0( 3) of the P a s sports Act. The

P a s sports 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 P rinciples of Statutory Interpretation (9 th Edition pg. 1 3 3). This

principle is expressed in the maxim "Ge n e r a l i a sp e c i a l i b u s no n

de r o g a n t ". Hence, impounding of a passport cannot be done by the

Court under Section 1 0 4 Cr. P.C. though it can impound any other

document or thing.



1 6. For the aforesaid reasons, we set aside the impugned order of

the High Court and direct the respondent to hand over the passport to

the appellant within a week from today. However, it shall be open to the

respondent to approach the P a s sport Authorities under Section 1 0 or

the authorities under Section 1 0 A of the Act for impounding the

passport of the appellant in accordance with law.



1 7. We, however, make it clear that we are not expressing any

opinion on the merits of the case and are not deciding whether the

passport can be impounded as a condition for grant of bail.



1 8. The appeal stands disposed of accordingly.
10

....................... J.
[ P. P . NAOL E K A R ]



...................... J.
[ MA R K A N D E Y KA T J U]
N E W DE L H I
JA NUA R Y 2 4, 2 0 0 8 .




IT E M NO.2 COUR T NO.1 1 S EC T I O N II

S UP R E M E COUR T OF I N D I A
R ECO R D OF P R OC E E D I N G S

Petition(s) for Special Leave to Appeal (Crl) No(s).3 4 0 8 / 2 0 0 7

(From the judgment and order dated 0 5 / 0 2 / 2 0 0 7 in CR P No. 4 9 / 2 0 0 7 of The
HIGH COUR T OF DE L H I AT N. DE L H I)

SUR E S H NANDA Petitioner(s)

VE R S U S

C.B.I. Respondent(s)

(With appln(s) for stay and office report )

Date: 2 4 / 0 1 / 2 0 0 8 This Petition was called on for hearing today.

CORA M :
HON'B L E MR. JUS T I C E P. P . NAOL E K A R
11

HON'B L E MR. JUS T I C E MAR K A N D E Y KA T J U

For Petitioner(s) Mr. Harish N. Saleve, Sr. Adv.
Mr. Sidharth Luthr a, Sr. Adv.
Mr. Mukul Rohtagi, Sr. Adv.
Mr. Sandeep K apur, Adv.
Mr. Ruchin Midha, Adv.
Mr. R.N. K a r a n j a w a l a , Adv.
Mrs Manik Ka r a nj a w a l a ,Adv.

For Respondent(s) Mr. A. Shar a n, ASG
Mr. A. Mariarputh a m, Adv.
Mr. B. Krishn a Pr a s a d,Adv.

UPON hearing counsel the Court made the following
OR D E R

Leave granted.

Appeal stands disposed of in terms of signed order.



(Pardeep Ku m a r) (Neeru Bal a Vij)
Court Master Court Master

[SIGN E D R E P O R T A B L E ORD E R IS P L A C E D ON TH E FI L E ]


Tue Jan 29, 2008 12:23 pm
Profile

Joined: Tue Jun 03, 2008 10:10 pm
Posts: 229
But has there been any examples of cases where Police & Court have tried to impound passport after Supreme Court's verdict?


Tue Jul 29, 2008 1:16 am
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Joined: Wed Jul 23, 2008 11:52 pm
Posts: 92
My friend -- this all too common among people who have travelled abroad for the basic purpose that the guy resides in india and has fun in india. She wants to subject you to India because folllowing reasons. You need to understand a womans mind. They are bitches to the core and they have lost all and Dont even contemplate thinking in their terms cos its absurd and unrealistic.

1> She feels insecure and she needs somebody to fight.
2> She needs sympathy.
3> She wants you not to get good oppurtunities abroad lest you forget her and the kids-though she will file 125 Cr.P.C
4> She wants you to fall at her feet.
5> Boss have some fine wine and forget the whole crap-- this entire shit atleast I have realised is a farce and evryone knows about it. In the beginning you might be alarmed and might go into shock but time will heal. ake it easy. its a matrimonial offence. its something she want to convey to you but the law has not made it possible for reconcialition. hats off for all the great thinkers and MLA's and MP's. On a personal basis i really want this not to be amended for atleast 20 years. I really love it for what it is. I think the change is here. We should not give an oppurtunity to the politicians to chwange their views. This is a maginificient LAW. Since i was arrested within 6 hours of complaint i have gone through it all. and it makes a guy supremely confident. I sincerely wish all guys go through this procedure before marriage in fact so they know what reality is ! I would recommend they go through this in school days to avoid this nuisance and eventually it would become a marriage and father less society. this change is required and i wholly support renuka choudhary and giri whoever for such laws. I fully support they file max number of false cases.


Tue Nov 18, 2008 1:50 pm
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Joined: Wed Jul 23, 2008 11:52 pm
Posts: 92
want to correct something:

to you but the law has not made it IMpossible for reconcialition. hats off for all the great thinkers and MLA's and MP's. On a personal basis i really want this not to be amended.


my passport and my judgement will paste here soon ---searching for yiu so you all can have an idea of what happens:


Tue Nov 18, 2008 2:00 pm
Profile

Joined: Sat May 06, 2006 12:42 pm
Posts: 684
Location: Bangalore/USA/Europe
Krishna,
I fully understand your sentiments. I too feel that things have to get so bad that the some sense will finally start prevailing.
As you can see he who is scared, loses big. A husband who is not scared will either won't care about ongoing litigation or will actually have fun. it is amazing how slowly the judges move the proceedings, giving ample time to the bitch to get quite old.
The only problem is for NRIs who visit India.
I just read the story of Bala Ambati (famous child prodigy who graduated from Mount Sinai medical School in new York, at the age of 17 with an M.D. degree). The poor guy visited India with his parents, his brother's wife filed the dowry case against all & sundry, including this young doctor. Was detained in India for a few months, I'm sure the Judge grabbed his passport, and finally the case was quashed. in the meantime, the newly minted doctor lost his opportunity to begin his residency. He lost two precious years (probably equals Rs 5 corore for someone his caliber) before he could join Harvard medical school for residency. He is now a noted opthalmologist.
The lesson of this story is that most NRI men should stay away from India, if there is a possibility of 498A from anywbody in the family. Ask your relatives in India to fly to Pakistan, Singapore, Dubai, Srilanka or Nepal. Spend time with them there. India is too screwed up to give you proper legal protection!


Tue Nov 18, 2008 5:47 pm
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Joined: Thu May 27, 2010 8:40 am
Posts: 286
Judgment link:

http://indiankanoon.org/doc/572504/


Thu Feb 03, 2011 8:49 am
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