TaxTMI 
TaxTMI 
2018 (11) TMI 1233
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....ersons have filed these three writ petitions; they have a common grievance, though. All the three owned valid passports. Faced with a direction from the Regional Passport Authority to surrender their passports, they have come to the Court. 3. Faisal, the petitioner in W.P.(C) No.29873 of 2018, has his passport valid till 10th June 2020. Faseela Muhammed Kunju, the petitioner in W.P.(C) No.29957 of 2018, has her passport valid till 13th March 2021. And K.M.Shinoy, the petitioner in W.P.(C) No.30005 of 2018, has his passport valid till 13th March 2027. Though the facts vary a little in each case, they raise identical issues and the petitioners assail the respondent's action on the same grounds. So this Common Judgment. 4. With his frequent overseas travels, Faisal had the pages in his passport exhausted, with no more room for future stampings. So, through the Ext.P1, on 6th July 2018, he requested the Regional Passport Officer (RPO), the 1st respondent, for a fresh passport. With no response from the RPO, he issued the Ext.P2 legal notice. He then received a show-cause notice from the RPO: it commands Faisal to surrender his passport. 5. Faseela and her husband have face....
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....n is bona fide and well-within his statutory powers. Customs Department's: 10. Sri Sreelal Warrier, the learned Senior Standing Counsel for the Customs Department, has submitted that the Department is duty bound to inform all the authorities concerned, including the External Affairs Ministry, about the pending proceedings that attract Sections 6 (1)(d) and 6 (2)(I) of the Passport Act. Though the Customs Department informs, it is for the Ministry of External Affairs and, in turn, for the RPO to decide whether the passport needs to be impounded or canceled. At any rate, he has submitted that the RPO has acted only in the country's interest. 11. Heard Sri P. A. Augustian, the learned counsel for the petitioners, Sri Jaishankar V. Nair, the learned Central Government Counsel for the RPO, and Sri Sreelal Warrier, the learned Senior Standing Counsel for the Customs Department. Discussion: (a) The Notices and the Responses: 12. All the three petitioners have valid passports. Faisal's and Faseela's passports are valid till 2020; K.M.Shinoy's till 2027. They all have faced or have been facing inquiries under the Customs Act. They received the identically worded Ext.P2 in WPC....
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....t. Then, he may issue the passport or travel document for the countries the applicant has asked. Or under Section 5 (2) (b), the passport authority can limit the permission to a specified country or countries. Still, under clause (c) of the same subsection, the authority can refuse the permission. With partial refusal or total refusal under clause (b) or clause (c) of subsection (2) respectively, the passport authority must record the reasons. He must also hand over a copy of that order. But the authority need not supply to the applicant the order copy if he reckons 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 copy." 18. Section 6 of the Act enumerates the grounds on which the passport authority can partially or totally refuse to issue the passport. The provision reads: 6. Refusal of passports, travel documents, etc.-(1) Subject to the other provisions of this Act, the passport authority shall refuse to make an endorsement for visiting any foreign country under clause (b) or clause (c) of sub-section (2....
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....plicant will not be in the public interest. (Italics supplied) 19. Section 6 (1) speaks of the passport authority's refusal to endorse on an existing travel document under clause (b) or clause (c) of sub-section (2) of Section 5. On the other hand, sub-section (2) deals with the authority's refusal to issue the passport or travel document for visiting any foreign country under clause (c) of subsection (2) of Section 5. That is, sub-section (2) concerns issuing the passport, rather than endorsing on the passport. It contains more grounds of refusal than sub-section (1). Yet clause (b) in subsection (1) and clause (c) in subsection (2) are common: that the presence of the applicant in such country may, or is likely to, be detrimental to the security of India. Indeed, the Customs Department has invoked this clause, and the RPO followed suit. (c) Law Applied to the Facts: 20. To be precise, the Customs Department informs the Ministry of External Affairs and the RPO, too, that Faisal is a key member of a smuggling racket. Initially, he had absconded but was detained on his arrival in India in May 2017. He had an earlier detention under COFEPOSA Act. Besides, he is said....
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.... be "detrimental to the security of India". A person gets no passport or travel document if, as Section 6 (2) (c) holds, his departure from India proves detrimental "to the security of India". And under Section 10 (3) (c), a passport is subjected to "variation, impounding, or revocation" 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 public. (d) Can "Security of India" include "Economic Security of India"? 25. Semantically, the Shorter Oxford English Dictionary defines "security" in its varied senses. Contextually confined, it is "the condition of being protected from or not exposed to danger; safety; the condition of being protected from espionage, attack, or theft". Of course, in commercial parlance, security is "the property etc. deposited or pledged by or on behalf of a person as a guarantee of the fulfillment of an obligation." 26. Explanation to Section 157A of the Patents Act, 1970, defines the term. The expression "Security of India" takes into its sweep any action necessary for the security of India. But the definition is contextual and refers to ....
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....mployees. It was "in the interest of the national security." An employee was found having "close association with alleged Communists and an allegedly subversive organization." Later, he was dismissed because his continued employment was not "clearly consistent with the interests of national security." 31. In that context, the American Supreme Court has held that the term "national security" is not defined in the Act of August 26, 1950, but it is clear from the statute that it should comprehend "only those activities of the Government that are directly concerned with the protection of the Nation from internal subversion or foreign aggression, and not those which contribute to the strength of the Nation only through their impact on the general welfare." (e) Interpretation and Interpolation: 32. If we get back to the facts, here, the Customs Department 3351 US 536 (1956) adds an adjective before "security": economic. Adjectives qualify a meaning; they even alter it. "Security" is found used in isolation under Section 6 (1) and (2) of the Act. Under Section 10 (3) (c) it finds its company: "the sovereignty and integrity of India, the security of India, friendly relations of In....
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....pt by due process of law. (g) Purposive Construction of the Provision: 37. Given the intricacy of the issue, I have asked Ms. Neenu Nair, an industrious young advocate, to be the informal amicus of the Court. She has agreed. On research, she has informed the Court that she has not come across any judicial interpretation-precedentially or otherwise-holding that security of the country under either Section 6 or 10 of the Act would include "economic security". She has submitted that the Passports Act 1967 was enacted in the backdrop of the Supreme Court's decision in Satwant Singh Sawhney. She submits that the majority decision in Satwant Singh Sawhney refused to accept that the Government's absolute discretion in the matters of issuing a passport. It has held that the right to travel abroad is a part of the person's personal liberty; he could not be deprived of it except by procedure established by law under Article 21 of the Constitution. Then, as there was no law establishing any procedure, the Government had no right to refuse a passport to any person who might have applied for it. Thus came into being the Passport Act, 1967. It regulates the passport issuing, beside....
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.... to the Punjab and Haryana High Court in Rajinder Kaur v. Union of India AIR 2004 P & H 34, signifies the gravity of the involvement or likely involvement of an applicant in activities prejudicial to the sovereignty and integrity of the country. These provisions, thus, must receive a strict construction as their consequences in law are not only serious but have the effect of taking away freedom granted to the petitioners in law-under the Constitution, too. The expression, "likely to" cannot be treated so lightly as to include every activity and relationship to be prejudicial to the sovereignty of the State. Likelihood may take in its scope the apprehension which essentially must be record-based or founded on a reasonable cause. 42. Before its undergoing an amendment in 2013, Section 15 of the Unlawful Activities (Prevention) Act, 2012, has spelt out a "Terrorist Act" to be any act that threatens or likely to threaten the unity, integrity, "security", or sovereignty of India. If the act intends to strike terror or likely to strike terror in the people, or any section of the people in India, or in any foreign country, that act, too, was treated as a terrorist act. A Division Bench....