Equivalent Citation: 1996(1)ALD414, 1995(3)ALT740, 1996CriLJ1086
IN THE HIGH COURT OF ANDHRA PRADESH
Writ Petn. No. 21085 of 1995
Decided On: 08.11.1995

Appellants: Hamida Habib Jeelani alias Hamida Begum
Vs.
Respondent: The Secretary to Government, Home Department, Government of Andhra Pradesh and Anr.

Hon'ble Judges:
A. Gopal Rao and Motilal B. Naik, JJ.

Counsels:
M.N. Narasimha Reddy for the Amicus Curiae

For Appellant/Petitioner/Plaintiff: MilindG. Gokhale, Adv.

For Respondents/Defendant: Govt. Pleader, for Home

Subject: Criminal

Acts/Rules/Orders:
Constitution of India - Articles 14, 19 and 21; Indian Penal Code, 1860 - Section 304B; Criminal Procedure Code, 1973 - Sections 100, 102, 165, 174 and 451

Case Note:

Criminal writ of mandamus Articles 14, 19 and 21 of Constitution of India, Section 304-B of Indian Penal Code, 1860, Passport Act, 1967 and Sections 100, 102, 165 (1), 174 and 451 of Criminal Procedure Code, 1973 petitioner is foreign national passport of petitioner seized by respondent (police authority) under criminal trial petition for release of passport - whether police can seize passport without reference to provisions of Passport Act under Passport Act there is no specific provision for seizing passport of any individual by police for investigation into an offence under Section 165 (1) investigating officer can seize any property belonging to any person believed by him to be necessary for purpose of investigation into commission of any offence action of respondent valid as per Section 165 (1) held, no illegality or irregularity committed by respondent in seizing passport of petitioner petition dismissed.

JUDGMENT

A. Gopal Rao, J.

1. This writ petition is filed to issue a Writ of Mandamus declaring the action of the respondents, viz., The State of Andhra Pradesh, represented by the Secretary to Government, Home Department, Hyderabad and the Station House Officer, Rein Bazar Police Station, Mir Chowk Sub-Division, South Zone, Hyderabad, in seizing the passport of the petitioner, bearing No. 239348 issued by the Government of Qatar, as arbitrary, illegal and violative of the petitioner's fundamental rights guaranteed under Articles 14, 19 and 21 of the Constitution of India and consequently to order release of the passport in favour of the petitioner.

2. This Writ Petition in the first instance came up for admission before a learned single Judge who by Order dated 25-9-1995 referred the same for consideration and disposal by a Division Bench as in the view of the learned Judge the case involvees important questions of law for consideration and decision. Therefore, this Writ Petition is posted before us.

3. The necessary facts as disclosed from the affidavit filed by the petitioner in support of the writ petition are as follows :

Petitioner who was born and brought up in India was married to Ali Goerab, a national and citizen of Qatar. After the marriage the petitioner is residing with her husband in Qatar. They have seven children. In the year 1995 petitioner came to India to stay for some time with her brothers and parents at Hyderabad. On 28-6-1995 wife of the younger brother of the petitioner died in a fire accident in the house. Police registered the same initially under Section 174, Cr.P.C. and subsequently altered it to one under Section 304-B of the Penal Code. Police registered the same as Crime No. 87 of 1995 against all the members of the family including the petitioner. During the course of investigation, the 2nd respondent seized the passport of the petitioner and deposited the same with XVI, Metropolitan Magistrate, Hyderabad, as disclosed by the Remand Report dated 5-7-1995. The seizure of the passport by the 2nd respondent, is assailed in this writ petition, on the ground that, except under the provisions of the Passport Act, 1967 (Act 15 of 1967) the police have no authority or jurisdiction to seize the passport and as no steps are taken as required under the Passport Act in this direction the seizure of the passport of the petitioner should be quashed and the passport has to be released in favour of the petitioner.

4. This writ Petition is opposed by the respondents. The learned Government Pleader for Home appearing for the respondent submits that under the general power of investigation the police have always got the power to seize the incriminating material and as the petitioner is a permanent resident of a foreign country, viz. Qatar, in order to see that the petitioner who is an accused in the criminal case will not leave India before the criminal case is decided the police are justified in seizing the passport of the petitioner.

5. Having regard to the questions of law to be decided in the writ petition, this Court requested Sri M. N. Narasimha Reddy, Senior Advocate of this Court to assist this Court as Amicus Curiae. Sri Narasimha Reddy submits that under Section 102 of the Criminal Procedure Code read with the provisions of Section 165 of the Criminal Procedure Code the police have the power to seize the passport of a person who is facing a criminal trial. He submitted that it is always open to the petitioner to approach the concerned criminal Court for release of the passport in her favour as provided under Section 451 of the Criminal Procedure Code.

6. In view of the rival contentions the point for determination in this writ petition is whether the police can seize the passport of the petitioner without reference to the provisions of the Passport Act, 1967 ?

7. To appreciate the rival contentions, we may usefully notice certain provisions of the Passports Act, 1967 (Act No. 15 of 1967) (hereinafter called "the Act").

8. "Passport" is defined under Section 3 of the Act in following terms :

"3. Passport or travel document for departure from India :- No person shall depart from, or attempt to depart, India unless he holds in this behalf a valid passport or travel document.

Explanation :- For the purpose of this Section -

(a) "passport" includes a passport which having been issued by or under the authority of the Government of a foreign country satisfied the conditions prescribed under the Passport (Entry into India) Act, 1920 (34 of 1920), in respect of the class of passports to which it belongs;

(b) xxxx xxxx xxxx xxxx".

9. Section 10 of the Act deals with variation, impounding and revocation of passports and travel documents. It reads :-

"10. Variation, impounding and revocation of passports and travel documents :-

(1) The passport authority may, having regard to the provisions of sub-section (1) of Section 6 or any notification under Section 19, vary or cancel the endorsements on a passport or travel document or may, with the previous approval of the Central Government, vary or cancel the conditions (other than the prescribed conditions) subject to which a passport or travel document has been issued and may, for that purpose, require the holder of a passport or travel document, by notice in writing, to deliver up the passport or travel document to it within such time as may be specified in the notice and the holder shall comply with such notice.

(2) xxxxx xxxxx xxxxx xxxxx

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

(a) xxxxx xxxxx xxxxx xxxxx

(b) xxxxx xxxxx xxxxx xxxxx

(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) xxxxx xxxxx xxxxx

(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;

(f) xxxxx xxxxx xxxxx

(g) if the holder of the passport or travel document has failed to comply with a notice under sub-section (1) requiring him to deliver up the same;

xxxxxxxxxx xxxxx . . .".

10. Violation of the provisions of the passport is punishable under Section 12 of the Act, which reads :-

"12. Offences and Penalties :-

(1) whoever -

(a) contravenes the provisions of Section 3; or

(b) knowingly furnishes any false information or suppresses any material information with a view to obtaining a passport or travel document under this Act or without lawful authority alters or attempts to alter or causes to alter the entries made in a passport or travel document; or

(c) fails to produce for inspection his passport or travel document (whether issued under this Act or not) when called upon to do so by the prescribed authority; or

(d) knowingly uses a passport or travel document issued to another person; or

(e) knowingly allows another person to use a passport or travel document issued to him, shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees or with both.

(2) xxxxx xxxxx xxxxx xxxxx.

(3) Whoever contravenes any conditions of a passport or travel document or any provisions of this Act or any rule made thereunder for which no punishment is provided elsewhere in this Act shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both.

(4) xxxxx xxxxx xxxxx xxxxx....".

11. Section 13 of the Act gives the power to arrest any person violating the provisions of the Act. It reads,

"13. Power to arrest :-

(1) Any officer of customs empowered by a general or special order of the Central Government in this behalf and any officer of police not below the rank of a Sub-Inspector may arrest without warrant any person against whom a reasonable suspicion exists that he has committed any offence punishable under Section 12 and shall, as soon as may be, inform him of the grounds of such arrest.

(2) Every officer making an arrest under this Section shall, without unnecessary delay, take or send the person arrested before a Magistrate having jurisdiction in the case or to the officer in charge of the nearest police station and the provisions of (Section 57 of the Code of Criminal Procedure, 1973 (2 of 1974) shall, so far as may be, apply in the case of any such arrest".

12. Section 14 of the Act empowers seizure of the passport by the authorities. Section 14 reads :-

"14. Power of search and seizure :-

(1) Any officer of customs empowered by a general or special order of the Central Government in this behalf and any officer of police not below the rank of a sub-inspector may search any place and seize any passport or travel document from any person against whom a reasonable suspicion exists that he has committed any offence punishable under Section 12.

(2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to searches and seizures shall, so far as may be, apply to searches and seizures under this section."

13. Learned counsel for the petitioner submits that any action against the holder of a passport for violating the conditions for grant of passport or for impounding or seizure of the passport should be taken only under the provisions of Section 10, 12, 13 and 14 of the Act and not otherwise. It is also submitted that the police have no power to seize the passport or take action against the holder of a passport under any other Act or otherwise than under the provisions of Sections 12, 13 and 14 of the Act. It is contended by the learned counsel for the petitioner that as the petitioner has not committed any offence or violated the conditions for grant of passport, the seizure of the passport of the petitioner effected by the respondents, is illegal.

14. No doubt, under the provisions of the Act, there is no specific provision for seizing the passport of any individual by the police authorities in connection with investigation into the commission of any offence by the holder of the passport under the provisions of any other Act. Under Section 10(3)(e) of the Act, the passport authority may impound passport of a person 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. The learned counsel for the petitioner submits that even for taking action under Section 10(3)(e) of the Act it is incumbent upon the police officer concerned to intimate the Passport Authority through the inquiring Magistrate for the purposes of impounding and the passport authority may, in its discretion, impound the same. In other words, it is submitted by the learned counsel for the petitioner that the police themselves have no power to seize the passport without reference to the passport authority thereby interfering with the personal liberty of the holder of the passport. In support of this submission, learned counsel for the petitioner relied upon the decision of the Constitution Bench of the Supreme Court in Maneka Gandhi v. Union of India, MANU/SC/0133/1978, wherein it was held by the Supreme Court (at p. 622) :-

"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, MANU/SC/0012/1950. 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. It was for this reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967 for regulating the right to go abroad. It is clear from the provisions of the Passports Act. 1967 that it lays down the circumstances under which a passport may be issued or refused or cancelled or impounded and also prescribes a procedure for doing so, but the question whether that is sufficient compliance with Article 21. Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements ? Obviously, the procedure cannot be arbitrary, unfair or unreasonable".

The above contention of the learned counsel for the petitioner prima facie logically appears to be impressive and appealing, but, if we examine/notice the relevant provisions under the Code of Criminal Procedure 1973 it will be clear that the police shall have the power to seize passport of a person under the general powers of investigations into any offence alleged to have been committed by the holder of passport. Section 10 empowers a 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 commission of any offence. Section 165 Cr.P.C. empowers the police officer to make a search, during the course of his investigation into any offence alleged to have been committed by any person, of any place. Section 165, Cr.P.C. is in following terms :

"165. Search by police officer :

(1) Whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station.

(2) xxxxx xxxxx xxxxx xxxxx

(3) xxxxx xxxxx xxxxx xxxxx

(4) The provisions of this Code as to search warrants and general provisions as to searches contained in Section 100 shall, so far as may be, apply to a search made under this section.

(5) Copies of any record made under sub-section (1) or sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate."

15. A reading of sub-section (1) of Section 165, Cr.P.C. makes it abundantly clear that the investigating officer can seize any property, belonging to any person, believed by him to be necessary for the purpose of investigation into the commission of any offence. No doubt, the police officer seizing the property of any person has to record the grounds for doing so in writing and also follow the provisions laid down under Section 100, Cr.P.C. which apply to the general provisions as searches. Therefore, it follows that the police officer under the provisions of Section 165, Cr.P.C. has got the power to seize the passport if in his opinion it is necessary to control the movement of the person alleged to have committed an offence and to secure his/her presence whenever necessary for the purpose of investigation. Once a passport is seized during the course of investigation by a police officer, under sub-section (5) of Section 165, Cr.P.C. the police officer has to send the passport to the nearest Magistrate empowered to take cognizance of the offence and for impounding the same if necessary he has to intimate the passport authority through the concerned Magistrate.

16. It is now well-settled that non-compliance of the provisions of Section 100, Cr.P.C. and Section 165, Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case and in such a situation the Court has to consider whether any prejudice has been caused to the accused by the search conducted and the seizure of the property effected. (vide State of Punjab v. Balbir Singh, MANU/SC/0436/1994.

17. The Supreme Court, in State v. Rahaman, MANU/SC/0181/1959, held that Section 165, Cr.P.C. empowers an investigation officer to make a search for anything necessary for the purpose of an investigation of an offence.

18. In the present case, on 4-7-1995 passport No. 239348 issued by the passport authority in favour of the petitioner has been seized by the police, as disclosed by the seizure report. In the remand report sent to the Magistrate by the police on 5-7-1995 it is mentioned "Since the A. 2 who possess the passport No. 239348 issued by the Government of Qater and A. 7 who possesses the passport No. 682069/A-715033 issued by the Government of India are likely to leave India at any time, their above passports are taken from their possession and are deposited herewith with a view to deter them from leaving India without notice of the Honourable Court". It is nodoubt true, the procedure laid down under Section 100, Cr.P.C. has not been followed by the police, as contended by the learned counsel for the petitioner, inasmuch as the seizure of the passport from the petitioner was not made under a panchnama. In our considered view, this is only a procedural lapse on the part of the police which will not vitiate the seizure of the passport itself (vide of State of Punjab v. Balbir Singh (1994 Cri LJ 3702) (SC) (supra). Admittedly, the passport seized from the petitioner has been deposited by the police with the XVI Metropolitan Magistrate, Hyderabad. It is now brought to the notice of this Court that by letter dated 12-10-1995 the investigating officer has informed the Regional Passport Officer, Hyderabad, about the seizure of the passport of the petitioner and depositing the same in the Court of the XVI Metropolitan Magistrate, Hyderabad.

19. For all the above reasons, we hold that no illegality or irregularity is committed by the respondents in seizing the passport of the petitioner. Needless to mention that it is always open to the petitioner, if so advised, to approach the concerned Magistrate under Section 451, Cr.P.C. for release of the passport in her favour. We do not find any merit in this writ petition.

20. Before parting with this case, we place on record our appreciation for Sri. M. N. Narasimha Reddy, Senior Advocate, of this Court readily agreeing to assist this Court as Amicus Curiae and also for rendering effective assistance to this Court in this matter.

21. In the result, this writ petition fails and is accordingly dismissed. No costs.

22. Petition dismissed.