2025 (2) TMI 220 - HC - Customs

Bombay HC deletes bail condition requiring passport surrender after each foreign trip, cites Passports Act 1967 violation

Bombay HC allowed applicant's plea to delete bail condition requiring passport surrender after each foreign trip and court permission for future travel. ... Seeking deletion of bail condition - condition requiring Applicant to surrender his passport every time he returns from abroad and obtain permission to travel abroad on the next occasion - infringement of fundamental rights under Articles 19(1)(g) and 21 of the Constitution of India - maxim generalia specialibus non derogant (general things do not derogate from specific things) - HELD THAT:- At the outset it is seen that passport is not an incriminating document in the prosecution case and hence seizure of passport permanently prima facie would stand contrary to the provisions of the Passports Act, 1967 and more specifically Sections 10(3)(e) and 10-A thereof. The condition of permanent seizure of passport by the Court would indirectly amount to impounding of the passport. The Passports Act is a special Act and it would override the provisions of Cr.P.C. for the purpose of impounding / retention of passport. The present case is such that considering the business profile and antecedents of the Applicant he would be required to travel abroad at short notice and therefore if he has to seek release of his passport on every occasion, the time spent in doing so is clearly detrimental to his prospects given the existential conditions in Court. This is not a case where the Applicant has misused the liberty given to him. Submission on behalf of the DRI that he is a flight risk therefore cannot be countenanced as perviously Court has released his passport thrice and Applicant has travelled aboard and diligently complied with the condition of return. Employing such an onerous condition in a bail order clearly amounts to indirectly impounding of the passport in substance. The Passports Act is a special law while Cr.P.C. is a general law and it is well settled that the special law prevails over the general law. This principle is expressed in the maxim generalia specialibus non derogant. Conclusion - It will be unjust to deny the Applicant the opportunity to travel abroad for his future business prospects, if such an opportunity would stand defeated due to the delay in the present system for seeking permission of the Court for release of the passport on every such occasion which is practically not possible due to the existential delay that occurs. It is seen that Applicant has deep roots in the Society and no criminal antecedents whatsoever. Condition No.3 in the bail order dated 21.05.2021 therefore stands deleted - the impugned order dated 13.12.2022 is quashed and set aside. Application allowed. ISSUES PRESENTED and CONSIDEREDThe core legal issues considered in this judgment are:Whether the condition requiring the Applicant to surrender his passport each time he returns from abroad and obtain permission to travel abroad on subsequent occasions infringes upon his fundamental rights under Articles 19(1)(g) and 21 of the Constitution of India.Whether the condition amounts to an indirect impounding of the passport, contrary to the provisions of the Passports Act, 1967.Whether the Applicant poses a flight risk that justifies the retention of his passport by the Directorate of Revenue Intelligence (DRI).ISSUE-WISE DETAILED ANALYSIS1. Infringement of Fundamental RightsRelevant Legal Framework and Precedents: The Applicant argued that the condition infringes upon his rights under Article 19(1)(g) (right to practice any profession) and Article 21 (right to life and personal liberty) of the Constitution. The Applicant relied on precedents such as Suresh Nanda v. Central Bureau of Investigation and Jignesh Prakash Shah v. Central Bureau of Investigation to support his contention.Court's Interpretation and Reasoning: The Court acknowledged that the right to travel abroad is an integral part of the right to life under Article 21. The Court noted that the Applicant is a businessman who frequently travels abroad, and the condition imposed is detrimental to his business prospects.Application of Law to Facts: The Court found that the Applicant has cooperated with the investigation and has deep roots in society, with no criminal antecedents. Therefore, the condition imposed is onerous and unjustified.Conclusions: The Court concluded that the condition infringes upon the Applicant's fundamental rights and should be deleted.2. Indirect Impounding of PassportRelevant Legal Framework and Precedents: The Passports Act, 1967, particularly Sections 10(3)(e) and 10-A, governs the retention and impounding of passports. The Court referred to the principle that a special law (Passports Act) overrides a general law (Cr.P.C.).Court's Interpretation and Reasoning: The Court observed that the condition of surrendering the passport amounts to indirect impounding, which is contrary to the provisions of the Passports Act. The Court emphasized that the Passports Act is a special law, and the Cr.P.C. is a general law, thus the former prevails.Conclusions: The Court held that the condition amounts to an indirect impounding of the passport and is contrary to the Passports Act, necessitating its deletion.3. Flight Risk AssessmentRelevant Legal Framework and Precedents: The DRI argued that the Applicant is a flight risk, particularly as he travels to countries without extradition treaties with India.Court's Interpretation and Reasoning: The Court found that the Applicant has complied with previous conditions of returning his passport after travel and has not misused the liberty granted. The Court did not find sufficient evidence to classify the Applicant as a flight risk.Conclusions: The Court concluded that the Applicant does not pose a flight risk, and the condition of passport retention is unnecessary.SIGNIFICANT HOLDINGSThe Court held that the condition requiring the surrender of the passport is an infringement of the Applicant's fundamental rights under Articles 19(1)(g) and 21 of the Constitution.The Court emphasized the principle that the Passports Act, as a special law, prevails over the general provisions of the Cr.P.C. concerning passport retention.The Court determined that the Applicant does not pose a flight risk, and the condition of retaining the passport is unjustified.The Court ordered the deletion of Condition No. 3 in the bail order dated 21.05.2021 and quashed the impugned order dated 13.12.2022.Final DeterminationsThe Applicant is allowed to retain his passport, and the condition requiring its surrender is deleted.The Applicant must furnish details of his travel itinerary and related documents to the DRI at least one week before any future travel and inform the DRI of his return within one week.The passport is to be returned to the Applicant within one week from the date of the judgment.