TaxTMI 
TaxTMI 
2010 (3) TMI 1294
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....nded for an indefinite length of time? Background facts 2. The Petitioner states that he is a Non-Resident Indian ('NRI') having a permanent residence in the United Kingdom ('UK'). He holds an Indian passport. As a result of a sting operation carried out by a tabloid 'Tehelka' in 2001 the Government of India set up a Commission of Inquiry (COI) which in the first phase was presided over by Justice K. Venkataswami and later by Justice S.N. Phukan. The said COI concluded some time in 2004. Thereafter on 9th October 2006, the CBI registered two FIRs. The first was FIR No. RC-1C1 2006-A0004 which concerned the payment of kickbacks in the matter of procurement of Barak-I Anti Missile Defence systems and 200 missiles for the Indian Navy. The second was FIR No. RC-1(A)/2006-ACU-(V) which concerned the payment of kickbacks for the supply of 87 Armoured Recovery Vehicles to the Ministry of Defence during 1989-99. Both FIRs are for offences under the Prevention of Corruption Act 1988 ('PCA'). The allegation against the petitioner was that he acted as a middle man in the said transactions. In the first FIR, the named accused include the then Defence Minis....
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.... to scrutiny if the restrictions were to prolong for an unduly long period, at this stage, however, the FIR having been lodged in 2006 and only a period of about three months having elapsed, the delay in investigation "has not prejudiced the Respondent to such an irreparable measure as is made out." While allowing the CBI's application and setting aside the order dated 15th January 2007 it was observed by the learned Single Judge that "in case of any change in the fact situation it is always open to the Respondent to seek an appropriate order having regard to the same." 5. Aggrieved by the above order dated 15th February 2007, the petitioner herein filed Special Leave Petition (Criminal) No. 3408 of 2007 in the Supreme Court. Later, the case was registered as Criminal Appeal No. 179 of 2008. By an order dated 24th January 2008, the Supreme Court disposed of the said appeal by setting aside the order dated 15th February 2007 passed by the learned Single Judge of this Court. The Respondents were directed to hand over the passport to the petitioner within a week. However, it was observed that "it shall be open to the Respondent to approach the Passport Authorities under Section....
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....mmit offences under Section 13(2) read with Section 13(1)(d) of the PCA read with Section 120-B and Sections 201, 204 and 218 of the Indian Penal Code, 1860 ('IPC'). Following this on 25th March 2008, the Joint Secretary (CPV) & CPO impounded the Petitioner's passport. This was the third FIR in which the petitioner figured as an accused. 10. By an order dated 29th April 2008, the Petitioner was granted bail by this Court in the third FIR No. RC AC1/2008/AOO1. Among the conditions imposed by this Court was that the Petitioner should surrender his passport to the trial court i.e. the court of the learned Special Judge (CBI) and that he would have to seek prior permission of that court to travel abroad. It is stated that pursuant to the aforementioned order the Petitioner deposited his passport in the court of the Special Judge (CBI). 11. On 29th May 2008, the Petitioner filed an appeal under Section 11 of the Act before the Appellate Authority i.e. the Special Secretary (AD & Consular Passport & Visa), Ministry of External Affairs ('MEA') against the order dated 25th March 2008 impounding his passport. 12. On 22nd August 2008, the said Special Secretary, ....
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....before Tehelka expose and during the relevant period. 12. Some sensitive and secret documents of MoD relating to finally approved acquisition plan by March 2005 were recovered and seized from the residence of his associate and Director of one of the companies of Mr. Suresh Nanda, Mr. M.V. Rao. From the bare reading of these documents, it appears that the copies of these documents were sent to Mr. Suresh Nanda in U.K. over fax. The copies of some of the documents relating to contract of Barak procurement were also recovered from Mr. M.V. Rao's residence. All these documents were seized by Delhi Police. 14. The CBI however does not commit itself to any definite time frame within which it expects the investigation to be concluded. It was stated in para 13 that "the time frame about finalization of investigation of this case largely depends on the material in the execution reports of the LRs. However, investigation of this case will be conducted soon after receipt of execution reports of the LRs." 'LRs' in the above passage refers to Letters Rogatory. Mr. Vikas Pahwa, learned Counsel appearing for the CBI informs this Court that LRs have been sent to UK, Dubai, ....
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....es constant review of the situation to examine if the continued impounding of a passport was called for. In other words, there had to be a periodic review of the necessity for impounding the passport. It is further submitted that while reviewing whether the passport should be continued to be kept impounded, it was incumbent on the CPO to also indicate the time period for which the passport was intended to be kept impounded. 19. Mr. Kaul points out that even if this Court directs the Respondents to release the Petitioner's passport to him, he cannot straightway travel abroad. As long as the conditions attached to the grant of bail in the third FIR continue, the Petitioner would have to seek the prior permission of the trial court for traveling abroad. That would be the occasion for the UOI or the CBI to oppose such prayer with reference to the specific material which has been gathered against the Petitioner during investigations. If, as pointed out by the Respondents, the action to impound the Petitioner's passport was taken under Section 10(3)(c) and not Section 10(3)(e) of the Act, then it was necessary to review the position periodically as an indefinite impounding of ....
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....ns leveled against Mr. Suresh Nanda by the CBI in the two FIRs are grave and of serious nature. I am of the view that the continued presence of Mr. Suresh Nanda is essential for unhindered investigation of the allegations against him. 10. Having heard and examined the arguments put forward by Mr. Nanda's Counsels during the hearing on 17.3.2008, after considering the records before me and considering the matter in its totality, being satisfied that it will be in larger public interest to impound the passport of Mr. Suresh Nanda, I, R. Swaminathan, Joint Secretary (CPV) & CPO, in exercise of the powers conferred upon me under Section 10(3)(c) of the Passports Act 1967, hereby impound passport No. F-5600903 (Valid up to 27.10.2013) of Mr. Suresh Nanda. 24. The order dated 22nd August 2008 of the appellate authority is no better. It is an order which contains no reasons at all for rejection of the appeal. Para 11 of the said order reads: 11. Having examined the written appeal and heard/considered the oral arguments put forward by the appellant and his two counsels, and after considering the records before me, I, Sharat Sabharwal, Special Secretary in the Ministry of Ex....
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....hen in fact he was a holder of an Indian passport. According to Mr. Pahwa, this was a serious matter and if the Petitioner returned to the UK, where he had a permanent residence, then there was likelihood of his not returning to India and even more serious of his tampering with the evidence. As regards the LRs sent to various countries, he stated that some documents have been received which are being analysed. There was likelihood that the Petitioner might, if the passport was returned to him, tamper with the evidence which is right now available with the authorities abroad. 28. This Court finds that the CBI is perhaps not accounting for the fact that returning the passport to the Petitioner is not the same thing as permitting him to travel abroad. For travelling abroad, the Petitioner has to seek prior permission of the trial court. He will in all probability do so by filing an application. In that application he would have to indicate the places to which he is travelling, the addresses of the places where he would be staying and the duration, the purpose for his travel etc. Therefore, it is not possible to anticipate at this point in time what the Petitioner will say in his ap....
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....ment also vary or cancel the conditions (other than the prescribed conditions) of the passport or travel document. (3) 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 offenc....
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....t of any offence under this Act or the rules made thereunder may also revoke the passport or travel document: Provided that if the conviction is set aside on appeal or otherwise the revocation shall become void. (8) An order of revocation under Sub-section (7) may also be made by an appellate court or by the High Court when exercising its powers of revision. (9) On the revocation of a passport or travel document under this section the holder thereof shall, without delay, surrender the passport or travel document, if the same has not already been impounded, to the authority by whom it has been revoked or to such other authority as may be specified in this behalf in the order of revocation. 10A. Suspension of passports or travel documents in certain cases (1) Without prejudice to the generality of the provisions contained in Section 10, if the Central Government or any designated officer is satisfied that the passport or travel document is likely to be impounded or caused to be impounded or revoked under Clause (c) of Sub-section (3) of Section 10 and it is necessary in the public interest so to do, it or he may,-- (a) by order, suspend, w....
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.... Petitioner's passport should be impounded. This is a mere reproduction of the language of the provision. It does not satisfy the requirement of the law. In any event even if the authorities could have arrived at such decision when it was first taken, it does not mean that the situation would remain unchanged. 32. It is apparent from the very nature of the power under Section 10(3)(c) of the Act that an impounding of a passport cannot be for an indefinite period. Section 10(3)(c) was taken up for interpretation by the Supreme Court in Maneka Gandhi. There, Justice P.N. Bhagwati (as the learned Chief Justice then was), delivering the lead judgment observed as under (SCC, pp. 313, 316): 35. ...it is necessary that in relation to such order, the expression "interests of the general public" in Section 10(3)(c) must be read down so as to be limited to interests of public order, decency or morality. If an order made under Section 10(3)(c) restricts freedom of speech and expression, it must be made not in the interests of the general public in a wider sense, but in the interests of public order, decency or morality, apart from the other three categories, namely, interests ....
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.... after hearing the petitioner, "the duration of the impounding will not exceed a period of six months from the date of the decision that may be taken on the Petitioner's representation". It must be said in fairness to the Central Government that this was a very reasonable stand to adopt, because in a democratic society governed by the rule of law, it is expected of the Government that it should act not only constitutionally and legally but also fairly and justly towards the citizen. We hope and trust that in future also whenever the passport of any person is impounded under Section 10(3)(c), the impounding would be for a specified period of time which is not unreasonably long, even though no contravention of any fundamental right may be involved. 34. Justice V.R. Krishna Iyer, while concurring with Justice Bhagwati in the same decision observed as under (SCC p.342): The impugned legislation, Sections 5, 6 and 10 especially, must be tested even under Article 21 on canons of processual justice to the people outlined above. Hearing is obligatory-meaningful hearing, flexible and realistic, according to circumstances, but not ritualistic and wooden. In exceptional cases ....
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....to be kept impounded? If that were the intention, then it would have served the purpose by simply inserting a further provision in Section 10 to the effect that the passport of every accused named in an FIR will stand automatically impounded as long as the investigation in that FIR is not concluded. Further, that such passport will remain impounded depending on the outcome of the investigation. However, such a wide power is not to be found under Section 10(3). Therefore, the mere reason that the allegations in an FIR are serious cannot by itself justify the indefinite impounding of a passport. 37. Where the allegations are serious, it may be possible to contend that in the initial stages of the investigation it would be in the public interest to impound a passport. In fact in the present case this was a factor that weighed with the learned Single Judge since the FIR had been registered in October 2006 and the return of the seized passport was sought only a few months later in January 2007. However, that does not mean that for all times to come thereafter, the passport will remain impounded irrespective of the progress of the investigations. If they have made no progress at all, ....
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....a v. The Regional Passport Officer/Passport Authority 156 (2009) DLT 172 are relevant (DLT, p. 175): 55. By statutory prescription, the power to suspend the passport pending further proceedings for revocation or impounding thereof was conferred on the authorities in statutory recognition of the requirement for immediate action that is to say the exceptional circumstance or impulsive necessity which may render imperative action necessary if the designated officer is satisfied that the passport is likely to be impounded or revoked under Section 10(3)(c) and it is necessary to do so in public interest. 41. In Suman Sehgal v. Union of India and Ors. AIR 2006 Del 216 it was observed in para 37 as under: 37. The impugned order does not indicate any time frame within which the petitioner's passport can be released. As noticed by the Gujarat High Court in its judgment in Abdul Kader's case an order impounding a passport under similar circumstances cannot have indefinite life as it would then adversely impact upon the rights of citizen to travel abroad and carry on his business activities. Therefore, the respondents ought to review the entire issue and pass spec....
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.... therein. Be that as it may, given the nature of the power under Section 10(3) (c) of the Act, a periodic review of the position is inevitable. Even if it is to be accepted that at the time when the impugned order of impounding was passed i.e. 25th February 2008 it was in public interest, it cannot be said that even as of March 2010 there is no difference in the situation. It would be necessary for the authority to ascertain what are the changes that have taken place in the interregnum and whether this order of impounding requires to be continued, for what reason and for how long? If these restrictions are not placed on the exercise of the power under Section 10(3)(c) of the Act, it will not render the power arbitrary and unreasonable and vulnerable to be attacked as being unconstitutional. Conclusion and directions 45. In the above facts and circumstances, this Court is of the considered view that it is necessary for the Respondents passport authorities to undertake a review of the position and determine whether the Petitioner's passport should continue to remain impounded. Mr. Chandhiok, learned ASG fairly stated that the Respondents would be willing to abide by any tim....