Suresh Nanda Vs. C.B.I.
EmailAppeal: Criminal Appeal No. 179 of 2008
[Arising out of SLP (Crl.) No. 3408 of 2007]
[From the final Judgment and Order dated 5.2.2007 of the High Court of Delhi at New Delhi in C.R.P. No. 49/2007]
[Arising out of SLP (Crl.) No. 3408 of 2007]
[From the final Judgment and Order dated 5.2.2007 of the High Court of Delhi at New Delhi in C.R.P. No. 49/2007]
Petitioner: Suresh Nanda
Respondent: C.B.I.
Apeal: Criminal Appeal No. 179 of 2008
[Arising out of SLP (Crl.) No. 3408 of 2007]
[From the final Judgment and Order dated 5.2.2007 of the High Court of Delhi at New Delhi in C.R.P. No. 49/2007]
[Arising out of SLP (Crl.) No. 3408 of 2007]
[From the final Judgment and Order dated 5.2.2007 of the High Court of Delhi at New Delhi in C.R.P. No. 49/2007]
Judges: P.P. Naolekar & Markandey Katju, JJ.
Date of Judgment: Jan 24, 2008
Appearances:
Mr. Harish N. Salve, Mr. Sidharth Luthra, Mr. Mukul Rohtagi, Senior Advocates, Mr. Sandeep Kapur, Mr. Ruchin Midha, Mr. R.N. Karanjawala and Mrs. Manik Karanjawala, Advocates with them for the Appellant.
Mr. A. Sharan, A.S.G., Mr. A. Mariarputham and Mr. B. Krishna Prasad, Advocates with him for the Respondent.
Mr. A. Sharan, A.S.G., Mr. A. Mariarputham and Mr. B. Krishna Prasad, Advocates with him for the Respondent.
Head Note:
Criminal Law
Passports Act, 1967
Sections 10(3)(e), 10A -Criminal Procedure Code, 1973, Sections 102, 104, 165 – Impounding of Passport – When can take place – Search and seizure of passport by CBI – No steps taken for ‘impounding’ – Documents not forwarded to magistrate – No order passed by Passport Authority. Held that the passport cannot be retained by CBI.
Passports Act, 1967
Sections 10(3)(e), 10A -Criminal Procedure Code, 1973, Sections 102, 104, 165 – Impounding of Passport – When can take place – Search and seizure of passport by CBI – No steps taken for ‘impounding’ – Documents not forwarded to magistrate – No order passed by Passport Authority. Held that the passport cannot be retained by CBI.
Held:
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 Passport Authority has the power to impound the passport under the Act. Section 102 of CrPC 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. Section 165 of CrPC 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. (Para 7)
Section 10A 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. It appears that the passport of the appellant cannot be impounded except by the Passport 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 10(3)(e) or by the Central Government or any designated officer under Section 10A of the Act to impound the passport by the respondent exercising the powers vested under the Act. While the police may have the power to seize a passport under Section 102(1) CrPC, it does not have the power to impound the same. Impounding of a passport can only be done by the passport authority under Section 10(3) of the Passports Act, 1967. (Para 10)
Sections 10(3)(e), 10A -Criminal Procedure Code, 1973, Sections 102, 104, 165 – Impounding of passport – Search and seizure by CBI – Retention of passport by it – No order by Passport Authority – ‘Impounding’ and ‘seizure’ – Difference. Held that impounding is different from seizure. In case of passport, impounding order is to be passed by Passport Authority.
Held
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. (Para 12)
While the police may have power to seize a passport under Section 102 CrPC if it is permissible within the authority given under Section 102 of CrPC, it does not have power to retain or impound the same, because that can only be done by the passport authority under Section 10(3) of the Passports Act. It is for the passport authority to decide whether to impound the passport or not. Since impounding of a passport has civil consequences, the passport authority must given an opportunity of hearing to the person concerned before impounding his passport. (Para 13)
Sections 10(3)(e), 10A -Criminal Procedure Code, 1973, Sections 102, 104, 165 – Impounding of passport. Held has to be done by Passport Authority alone. Even court cannot impound the passport. (Paras 14-15)
Section 10A 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. It appears that the passport of the appellant cannot be impounded except by the Passport 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 10(3)(e) or by the Central Government or any designated officer under Section 10A of the Act to impound the passport by the respondent exercising the powers vested under the Act. While the police may have the power to seize a passport under Section 102(1) CrPC, it does not have the power to impound the same. Impounding of a passport can only be done by the passport authority under Section 10(3) of the Passports Act, 1967. (Para 10)
Sections 10(3)(e), 10A -Criminal Procedure Code, 1973, Sections 102, 104, 165 – Impounding of passport – Search and seizure by CBI – Retention of passport by it – No order by Passport Authority – ‘Impounding’ and ‘seizure’ – Difference. Held that impounding is different from seizure. In case of passport, impounding order is to be passed by Passport Authority.
Held
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. (Para 12)
While the police may have power to seize a passport under Section 102 CrPC if it is permissible within the authority given under Section 102 of CrPC, it does not have power to retain or impound the same, because that can only be done by the passport authority under Section 10(3) of the Passports Act. It is for the passport authority to decide whether to impound the passport or not. Since impounding of a passport has civil consequences, the passport authority must given an opportunity of hearing to the person concerned before impounding his passport. (Para 13)
Sections 10(3)(e), 10A -Criminal Procedure Code, 1973, Sections 102, 104, 165 – Impounding of passport. Held has to be done by Passport Authority alone. Even court cannot impound the passport. (Paras 14-15)
Cases Reffered:
1. Gobind Sugar Mills Ltd. v. State of Bihar and others [JT 1999 (6) SC 120] (Para 8)
2. Belsund Sugar Co. Ltd. v. State of Bihar and others [JT 1999 (5) SC 422] (Para 8)
3. Maneka Gandhi v. Union of India and another [1978 (1) SCC 248] (Para 5)
4. State of Orissa v. Binapani Dei [AIR 1967 SC 1269] (Para 13)
5. Satwant Singh Sawhney v. D. Ramarathnam, Asstt. Passport Officer [1967 (3) SCR 525] (Para 4)
6. Dam Valaji Shah and Another v. Life Corporation of India and others [AIR 1966 SC 135] (Para 8)
2. Belsund Sugar Co. Ltd. v. State of Bihar and others [JT 1999 (5) SC 422] (Para 8)
3. Maneka Gandhi v. Union of India and another [1978 (1) SCC 248] (Para 5)
4. State of Orissa v. Binapani Dei [AIR 1967 SC 1269] (Para 13)
5. Satwant Singh Sawhney v. D. Ramarathnam, Asstt. Passport Officer [1967 (3) SCR 525] (Para 4)
6. Dam Valaji Shah and Another v. Life Corporation of India and others [AIR 1966 SC 135] (Para 8)
JUDGEMENT:
Order
1. Leave granted.
2. The appellant claims to be a non-resident Indian settled in United Kingdom for the last 23 years. The passport of the appellant as well as other documents were seized by the respondent from 4, Prithviraj Road, New Delhi in a search conducted on 10.10.2006 when the appellant was on a visit to India. The said search and seizure was pursuant to an FIR dated 9.10.2006 registered on the basis of a sting operation carried out by a news portal in the year 2001. The passport seized during the search was retained by the CBI officials. An application was moved by the appellant before the Special Judge, CBI, Patiala House Courts, New Delhi praying for release of his passport so that he can travel abroad to London and Dubai for a period of 15 days. The learned Special Judge, by order dated 15.1.2007, directed the release of the passport to the appellant by imposing upon him certain conditions. Aggrieved against the order passed by the Learned Special Judge, C.B.I., the respondent preferred a Criminal Revision before the High Court. The High Court, by order dated 5.2.2007, 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 Passports Act, 1967 (hereinafter referred to as ‘The Act’). He specifically referred to sub-section (3)(e) of Section 10 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 10A of the Act which has been introduced by Act 17/2002 w.e.f. 17.10.2001.
4. Learned senior counsel for the appellant also placed reliance on the decision of 5-Judge Bench of this Court in Satwant Singh Sawhney v. D. Ramarathnam, Asstt. Passport Officer [1967 (3) SCR 525] wherein in para 31, it was held as under:
’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.’
5. A similar view is reiterated in the decision rendered by 7-Judge Bench of this Court in Maneka Gandhi v. Union of India and another [1978 (1) SCC 248] wherein at page 280, 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 21 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. Prior to the enactment of the Passports Act, 1967, there was no law regulating the right of a person to go abroad and that was the reason why the order of the Passport 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 21 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 102 read with Sections 165 and 104 of Code of Criminal Procedure (hereinafter referred to as ‘the CrPC)’. He further contended that the power to retain and impound the passport has been rightly exercised by the respondent as there is an order dated 3.11.2006 passed by the learned Special Judge for CBI exercising the power under Section 104 of CrPC.
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
1. Leave granted.
2. The appellant claims to be a non-resident Indian settled in United Kingdom for the last 23 years. The passport of the appellant as well as other documents were seized by the respondent from 4, Prithviraj Road, New Delhi in a search conducted on 10.10.2006 when the appellant was on a visit to India. The said search and seizure was pursuant to an FIR dated 9.10.2006 registered on the basis of a sting operation carried out by a news portal in the year 2001. The passport seized during the search was retained by the CBI officials. An application was moved by the appellant before the Special Judge, CBI, Patiala House Courts, New Delhi praying for release of his passport so that he can travel abroad to London and Dubai for a period of 15 days. The learned Special Judge, by order dated 15.1.2007, directed the release of the passport to the appellant by imposing upon him certain conditions. Aggrieved against the order passed by the Learned Special Judge, C.B.I., the respondent preferred a Criminal Revision before the High Court. The High Court, by order dated 5.2.2007, 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 Passports Act, 1967 (hereinafter referred to as ‘The Act’). He specifically referred to sub-section (3)(e) of Section 10 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 10A of the Act which has been introduced by Act 17/2002 w.e.f. 17.10.2001.
4. Learned senior counsel for the appellant also placed reliance on the decision of 5-Judge Bench of this Court in Satwant Singh Sawhney v. D. Ramarathnam, Asstt. Passport Officer [1967 (3) SCR 525] wherein in para 31, it was held as under:
’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.’
5. A similar view is reiterated in the decision rendered by 7-Judge Bench of this Court in Maneka Gandhi v. Union of India and another [1978 (1) SCC 248] wherein at page 280, 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 21 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. Prior to the enactment of the Passports Act, 1967, there was no law regulating the right of a person to go abroad and that was the reason why the order of the Passport 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 21 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 102 read with Sections 165 and 104 of Code of Criminal Procedure (hereinafter referred to as ‘the CrPC)’. He further contended that the power to retain and impound the passport has been rightly exercised by the respondent as there is an order dated 3.11.2006 passed by the learned Special Judge for CBI exercising the power under Section 104 of CrPC.
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
