IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 10629 of 2009

SURESH NANDA ...... PETITIONER Through: Mr. Neeraj K. Kaul, Senior Advocate with Mr. R.K. Handoo, Mr. Sandeep Kapur, Mr. R.N. Karanjawala, Mr. Mehul M. Gupta and Mr. Shivek Trehan and Mr. Ronak Donald, Advocates

versus

UNION OF AND ANR ..... Respondents Through: Mr. A.S. Chandhiok, Additional Solicitor General with Mr. Sachin Datta, Mr. Manikya Khanna and Mr. Amandeep Singh, Advocate for R-1 & 2. Mr. Vikas Pahwa, Standing counsel with Mr. Biswajit Kumar Patra, Advocate for CBI.

CORAM: JUSTICE S.MURALIDHAR

1. Whether reporters of local paper may be allowed to see the judgment?

2. To be referred to the report or not?

3. Whether the judgment should be referred in the digest?

O R D E R % 05.03.2010

Introduction 1. Nearly three and a half years ago, on 10th October 2006, the of the petitioner was seized by the Central Bureau of

Investigation (CBI) pursuant to the registration by it of two FIRs in which the petitioner is named as an accused. Subsequently, on 30th

January 2008, the petitioner‟s passport was impounded by the passport authorities. This petition seeks a direction to the Respondents to release the said passport. One of the questions that arises for consideration is whether in exercise of the powers vested in the

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passport authorities under Section 10 (3) (c) of the Act 1967

(„Act‟), the passport of the petitioner can be kept impounded 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 („UK‟). He holds an Indian passport. As a result of a sting operation carried out by a tabloid „Tehelka‟ in 2001 the 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 Minister Mr.

George Fernandes, the then Naval Chief Admiral Mr. Sushil Kumar and the petitioner. In the second FIR, the public servants involved are stated to be unknown. It is stated that after registering the two FIRs various premises suspected to be associated with the Petitioner were searched on 10th October 2006. Although nothing incriminating was WP (Civil) No. 10629/2009 Page 2 of 33

found, the passports of all the members of the Nanda family including that of the Petitioner Mr. Suresh Nanda were seized.

3. The Petitioner states that since he was a resident of the UK and was required to attend to his business there, he applied to the court of the

Special Judge (CBI), on 2nd January 2007 for release of his passport.

The Petitioner‟s application was listed before that Court on 15th

January 2007. Three days prior thereto, on 12th January 2007, the CBI served the Petitioner a detailed questionnaire asking him to respond by 15th January 2007. The Petitioner submitted his reply to the CBI. It is stated that the CBI refused to accept the reply since the enclosed documents were not attested. The Petitioner states that he got the documents attested and produced them before the Special Judge (CBI) on 15th January and on that date the Special Judge (CBI) made an order permitting the Petitioner to travel to UK and Dubai.

4. The CBI filed Criminal Revision Petition No. 49 of 2007 in this

Court challenging the order dated 15th January 2007 passed by the

Special Judge (CBI). By a judgment dated 5th February 2007, a learned Single Judge of this Court reversed the order dated 15th

January 2007 passed by the Special Judge (CBI). It was held that the allegations in the FIRs were “grave and serious”. The sequence and the chain of transactions alleged in the FIR had spanned over a considerable period of time. The allegations had received scrutiny in the COI. It was stated that “however, nothing has been brought on record to show that such proceedings ever determined that such

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allegations were unfounded or baseless.” It is further observed that

“having regard to the magnitude of the operations the concern (that the petitioner might tamper with the evidence) cannot be lightly brushed aside; it cannot, in any case, be characterized as unfounded.”

It was held that the trial court fell into an error in ignoring all these aspects. It was stated that although the reasonableness of such restrictions would be open 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 10 of the Passports Act, 1967 („Act‟) or the authorities under

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Section 10A of the Act for impounding the passport of the Appellant in accordance with law.” The Supreme Court made it clear that “we are not expressing any opinion on the merits of the case and are not deciding whether the passport can be impounded as a condition for grant of bail.”

6. Within six days of the above order, on 30th January 2008 the Chief

Passport Officer („CPO‟) passed the following order:

“Ministry of External Affairs CPV Division New Delhi Sub: Suspension of the Passport (No. F-5600903) of Mr. Suresh Nanda Considering the information presented to me by the Central Bureau of Investigation and as I am satisfied that the passport of Mr. Suresh Nanda is likely to be impounded or caused to be impounded under clause (c) of sub-section (3) of Section 10 of the Passport Act, 1967 and that it is necessary in the public interest, in exercise of the powers vested in me under Section 10 A of the Passport Act, 1967, I hereby order to suspend with immediate effect the passport of Mr. Suresh Nanda bearing number F 5600903 for a period of four weeks effective from today.

Sd/- 30/1/08 (R. Swaminathan) Joint Secretary (CPV) & Chief Passport Officer 30.01.2008”

7. It must be mentioned here that the above order suspending the petitioner‟s passport was passed under Section 10A of the Act. This

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was in anticipation of the order which was to be passed under Section

10(3) (c). As far as the present case is concerned, the Respondents are seeking to impound the passport of the Petitioner only under Section

10(3) (c) of the Act.

8. On 4th February 2008, the Petitioner‟s counsel wrote to the Joint

Secretary (CPV) and CPO seeking to know the reasons as well as the material on the basis of which the Petitioner‟s passport has been suspended. On 25th February 2008, the Joint Secretary (CPV) & CPO issued a notice to the Petitioner asking him to show cause why the passport should not be impounded. The Petitioner was informed by this letter that the suspension of his passport had been extended by a further period of four weeks.

9. On 8th March 2008, the CBI registered FIR No. RC AC1 2008

AOO1 in which the Petitioner was named as one of the accused. The said FIR referred to a conspiracy to commit 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

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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, MEA dismissed the Petitioner‟s appeal. After making representations to the various authorities from 29th December 2008 till 8th June 2009, the Petitioner filed the present writ petition seeking a direction to the Respondents to release his passport.

13. In its counter affidavit the CBI contends that the findings on merits of the learned Single Judge in the judgment dated 15th February

2007 have not been upset by the Supreme Court and can therefore be continued to be relied upon by the CBI to oppose the release of the petitioner‟s passport. Referring to the judgments in Delhi

Development Authority v. Skipper Construction Company (P)

Limited 1996 (4) SCC 622, J. Jayalalitha v. Union of India (1999) 5

SCC 138 and State of Andhra Pradesh v. V. Vasudev Rao (2004) 9

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SCC 319 it is submitted that it is in public interest to impound the passport of the Petitioner as he is an accused in three FIRs, two of which involve offences under the PCA. The Respondents point out that PCA offences have been described by the Supreme Court as eroding “the public confidence and therefore, against the public interest and national interest.” In paras 10, 11 and 12 of the counter affidavit is stated as under:

“10. Investigation has also revealed that Mr. Suresh Nanda had got remitted foreign remittances to the tune of about Rs.400 croers from abroad in the years 2000, 2002 to 2006 for the purchase of hotels etc. in India but he did not disclose the sources of the above said amount which is suspected to be commission/kickback of the defence deals. He ahs not disclosed what is his business in India as well as abroad. He has submitted that being an NRI, he is not supposed to maintain any books of accounts/records of his business and thus, the same cannot be produced.

11. Investigation has disclosed that during the alleged period, there was a close nexus between Mr. Suresh Nanda and M/s. IAI, through its representatives posted in the liaison office of this company in India. He also had nexus with Mr. R.K. Jain. It is worth mentioning that Mr. Suresh Nanda had deposed the Commission of Inquiry probing Tehelka lapses that he never had any business with M/s. IAI. He had also claimed that Mr. R.K. Jain met him only after the Tehelka expose i.e. 13.3.2001, however, the mobile calls transacted between them and statement of witnesses have proved their meetings before Tehelka expose and during the relevant period.

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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, and Israel and while some information has been received, some more is expected.

15. The CBI apprehends that since the Petitioner “is a very influential, highly connected and powerful person not only in India but abroad also”, he has “every potential to cause interference in the investigation to be conducted abroad, influence the witnesses and tamper with the evidence or material related to the investigation of the case lying there.” It is stated that a visit abroad would provide the Petitioner “an

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opportunity to cover the tracks of alleged offences and hinder the investigation.” Therefore, the Petitioner‟s “continuous presence in

India till the execution of the LRs is essential and in the interest of justice.”

16. On its part, the Union of India („UOI‟) has filed the counter affidavit contending that the impugned orders were passed “after full consideration of the materials before the Passport Authority” and

“with full application of mind.” It is reiterated that the passport was not impounded under Section 10(3)(e) but under Section 10(3)(c) of the Act, which is “of a different character.”

Submissions of Counsel

17. Mr. NK Kaul, learned Senior counsel appearing for the Petitioner,

Mr. Amarjit Singh Chandhiok, learned Additional Solicitor General appearing for the UOI and Mr. Vikas Pahwa, learned counsel appearing for the CBI have been heard.

18. Mr. Kaul, learned Senior counsel, submits that contrary to the law explained by the Supreme Court in Maneka Gandhi v. Union of

India (1978) 1 SCC 248, the passport authorities in the instant case have performed a mechanical exercise of impounding the Petitioner‟s passport without any valid reason. They have simply repeated the language of the statute as contained in Section 10(3) (c) of the Act to justify their decision. Both the CPO and the Appellate Authority appear to have based their respective decisions on the observations

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made by the learned Single Judge of this Court in the order dated 15th

February 2007 which has, in any event, been set aside by the Supreme

Court. It is submitted that once the said judgment was set aside, it was not open to the passport authorities to make the said judgment as the basis for continuing to keep the passport of the Petitioner impounded.

Finally, it is submitted that the very nature of the power under Section

10 (3)(c) was such that it requires 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 the

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passport was not contemplated in the scheme of Section 10 read with

Section 10A of the Act.

20. Mr. Chandhoik, learned ASG on the other hand refers to the observations made by the learned Single Judge of this Court in the order dated 15th February 2007 and reiterates that merely because the said judgment has been set aside by the Supreme Court, the findings on merits in the said judgment cannot be said to be wiped out. He also echoes the apprehension of the CBI that the Petitioner might be able to tamper with the evidence. He submits that the Petitioner cannot possibly question the satisfaction of the CPO arrived at the time when the impugned order was passed that it is not in public interest to return the passport. He points out that the petitioner was named in a third

FIR even while the investigations in the earlier two FIRs were not complete. This showed that the petitioner‟s track record was not good and it was not advisable to order the release of his passport at this stage. According to him instead of directing release of the passport to the petitioner, this Court should direct the CBI to conclude investigations at an early date.

21. Finally, Mr.Chandhiok submitted that if the Petitioner‟s grievance was about the continued impounding of his passport, then the Court could issue appropriate orders requiring the CPO or the Appellate

Authority to review the situation to determine if the continued impounding of the Petitioner‟s passport was, in the circumstances, warranted in law.

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Can there be an indefinite impounding of a passport? 22. The above submissions have been considered. In the present case, the admitted position is that the CPO invoked Section 10 (3) (c) of the

Act while passing the order dated 25th February 2008 impounding the passport of the Petitioner. Till then the suspension of the passport of the Petitioner under Section 10A of the Act was kept continued. What appear to have largely influenced the decision of the CPO are the observations made by the learned Single Judge in the judgment dated

15th February 2007. No other independent material has been examined or referred to in the said order impounding the Petitioner‟s passport.

23. The only reason given for the impounding is contained in paras 9 and 10 of the order dated 25th March 2008 which read as under:

“9. In my considered opinion, the allegations 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.”

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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 External Affairs, in exercise of the powers conferred on me under Section 11 of the Passports Act 1967, read with Rule 14 of the Passport Rules 1980 uphold the impugned order No. VI/405/2/1/2008 dated 25.03.2008 of CPO.”

25. If one analyses the reasons in the order dated 25th March 2008 of the CPO, it is apparent that the factors that have influenced the CPO to impound the petitioner‟s passport are:

(a) That the allegations levelled against the Petitioner by the

CBI in the two FIRs are of a grave and serious nature;

(b) the continuous presence of the petitioner is essential for

unhindered investigation of the allegations; and

(c) considering the matter in its totality, it will be in the larger

public interest to impound the passport of the Petitioner.

26. That the allegations in the two FIRs are grave and serious is hardly in doubt. They indeed are. But what requires examination is whether the return to the Petitioner of his passport would hinder the progress of the investigations in the pending criminal cases. The impugned

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order of the CPO was passed on 25th February 2008 i.e more than two years ago. In these two years, there must have been some progress in the investigation of the case by the CBI. It is another matter that in the first two FIRs the petitioner has not been arrested. Although it is stated by the CBI that he has not been co-operating in the investigations that is an entirely different matter, which might be relevant when and if the petitioner seeks quashing of the criminal proceedings. As far as the present petition is concerned, the only question is whether the petitioner‟s passport requires to be kept impounded pending completion of investigations. The other significant factor is that barring the petitioner, the passports of the other accused in the two FIRs have not been impounded.

27. In order to ascertain what the progress of investigations was, this

Court asked the counsel for the CBI to explain whether there were any specific leads that had been obtained by it abroad, which might get endangered if the Petitioner‟s passport was released to him. Counsel for the CBI produced a confidential note showing the correspondence entered into by it with the law enforcement and investigation agencies abroad. One such information gathered by the Interpol UK showed the

Petitioner to be a British National when 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

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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 application while seeking permission to travel abroad. The CBI, which is the prosecuting agency, will have a complete say in the matter and will be heard by the trial court before an order is passed on such application.

Therefore, the question of the Petitioner being permitted to travel abroad really does not arise for consideration in the present petition. A direction to the Respondent to release the petitioner‟s passport does not mean that he is being permitted to travel abroad. That will be decided by the Special Judge (CBI) depending on the case made out before him either by the Petitioner or by the CBI.

29. As far as the question of continuing to keep the Petitioner‟s passport impounded is concerned, the case of the UOI is really no different from the case of the CBI. Despite the passport of the

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Petitioner being available with the Respondents for over three and a half years now, the justification that has to be shown for continuing to keep the passport impounded is not forthcoming. The order dated

22nd August 2008 passed by the appellate authority does not give any reasons whatsoever. The impounding in any event is not under

Section 10 (1) (e) of the Act as no proceedings have yet commenced in the criminal court. In neither of the two FIRs has a chargesheet been filed. No arrests have been made in those two FIRs as well.

30. At this juncture, this Court would like to first advert to the provisions of Section 10 and Section 10A of the Act, which read as under:

“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 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 a 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) The passport authority may, on the application of the holder of a passport or a travel document, and with the previous approval of the Central Government also vary

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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 offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years;

(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;

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(f) if any of the conditions of the passport or travel document has been contravened;

(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;

(h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made.

(4) The passport authority may also revoke a passport or travel document on the application of the holder thereof.

(5) Where the passport authority makes an order varying or cancelling the endorsements on, or varying the conditions of, a passport or travel document under sub- section (1) or an order impounding or revoking a passport or travel document under sub-section (3), it shall record in writing a brief statement of the reasons for making such order and furnish to the holder of the passport or travel document on demand a copy of the same unless in any case the passport authority is of the opinion 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 a copy.

(6) The authority to whom the passport authority is subordinate may, by order in writing, impound or cause

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to be impounded or revoke a passport or travel document on any ground on which it may be impounded or revoked by the passport authority and the foregoing provisions of this section shall, as far as may be, apply in relation to the impounding or revocation of a passport or travel document by such authority.

(7) A court convicting the holder of a passport or travel document 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, with immediate effect, any passport or travel document;

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(b) pass such other appropriate order which may have the effect of rendering any passport or travel document invalid,

for a period not exceeding four weeks:

Provided that the Central Government or the designated officer may, if it or he considers appropriate, extend, by order and for reasons to be recorded in writing, the said period of four weeks till the proceedings relating to variation, impounding or revocation of passport or travel document under section 10 are concluded:

Provided further that every holder of the passport or travel document, in respect of whom an order under clause (a) or clause (b) of this sub-section had been passed, shall be given an opportunity of being heard within a period of not later than eight weeks reckoned from the date of passing of such order and thereupon the Central Government may, if necessary, by order in writing, modify or revoke the order passed under this sub-section.

(2) The designated officer shall immediately communicate the orders passed under sub-section (1), to the concerned authority at an airport or any other point of embarkation or immigration, and to the passport authority.

(3) Every authority referred to in sub-section (2) shall, immediately on receipt of the order passed under sub- section (1), give effect to such order.”

31. As already mentioned, the order suspending the Petitioner‟s passport was made by the CPO on 30th January 2008 soon after the order dated 24th January 2008 passed by the Supreme Court asking the

Respondent UOI to return the passport to the Petitioner, while at the

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same time permitting the prosecuting agency i.e. the CBI, to approach the passport authorities if they wanted the Petitioner‟s passport to be impounded. The order dated 30th January 2008 was preparatory to the order that was going to be passed under Section 10(3) (c) of the Act.

For the purposes of Section 10 (3) (c) it is necessary that the CPO finds the impounding necessary “in the interests of the sovereignty and integrity of India, the security of India and friendly relations of

India with any foreign country, or in the interests of the general public.” A reading of the above orders of both the CPO as well as the

Appellate Authority that the justification is that it is “in the interest of the general public” that the 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

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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 of the sovereignty and integrity of India, the security of India and friendly relations of India with any foreign country. If the order cannot be shown to have been made in the interests of public order, decency or morality, it would not only contravene Article 19(1)(a), but would also be outside the authority conferred by Section 10(3)(c).”

“38. ……. The Union contended that though the period for which the impugned Order was to operate- was not specified in so many terms, it was clear that it was intended to be coterminous with the duration of the Commission of Inquiry, since the reason for impounding was that the presence of the petitioner was likely to be required in connection with the proceedings before the Commission of Inquiry and the term of the Commission of Inquiry being limited up to 31st December, 1977, the impounding of the passport could not continue beyond that date and hence it would not be said that the impugned Order was to operate for an indefinite period of time.”

33. It may be recalled that the justification given by the central government for impounding the petitioner‟s passport in Maneka

Gandhi was that her presence was likely to be required in connection with the proceeding before the Justice JC Shah COI. Although the initial time-limit fixed for the COI to submit its report was 31st

December 1977, the time-limit could always be extended by the

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Government. The experience of several COIs showed that hardly any

COI had been able to complete its report within the originally appointed time. In this context it was observed (SCC, p.317):

“Whatever might have been the expectation in regard to the duration of the Commission of Inquiry headed by Mr Justice Shah at the time when the impugned Order was made, it is now clear that it has not been possible for it to complete its labours by December 31, 1977 which was the time-limit originally fixed and in fact its term has been extended upto May 31, 1978. The period for which the passport is impounded cannot, in the circumstances, be said to be definite and certain and it may extend to an indefinite point of time. This would clearly make the impugned order unreasonable and the learned Attorney-General appearing on behalf of the Central Government, therefore, made a statement that in case the decision to impound the passport of the petitioner is confirmed by the Central Government 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.” (emphasis supplied)

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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 and emergency situations, interim measures may be taken, to avoid the mischief of the passportee becoming an escapee before the hearing begins. “Bolt the stables after the horse has been stolen” is not a command of natural justice. But soon after the provisional seizure, a reasonable hearing must follow, to minimise procedural prejudice. And when a prompt final order is made against the applicant or passport holder the reasons must be disclosed to him almost invariably save in those dangerous cases where irreparable injury will ensue to the State. A Government which revels in secrecy in the field of people‟s liberty not only acts against democratic decency but busies itself with its own burial. That is the writing on the wall if history were teacher, memory our mentor and decline of liberty not our unwitting endeavour. Public power must rarely hide its heart in an open society and system.”

“99. ………. In the context of scary expressions like 'security' 'public order', 'public interest' and 'friendly foreign relations', we must warn ourselves that not verbal labels but real values are the governing considerations in the exploration and adjudication of constitutional prescriptions and proscriptions. Governments come, and go, but the fundamental rights of the people cannot be subject to the wishful value-sets of political regimes of the passing day.”

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35. It is plain from the above passages that the power under Section

10 (3) (c) of the Act is not to be exercised mechanically. There has to be application of mind by the authority to the relevant factors that would enable it to come to the conclusion that the impounding of the passport is in the interests of the general public. And then again, in the context of the criminal case which is still under investigation, this cannot be an opinion formed at one point in time. The public interest element will vary depending on the stage of the investigation. It cannot be said that as long as the investigation is not complete, it is not in public interest to release a passport. That would be giving too wide a power to the authority.

36. Let us assume that the investigation in a criminal case is not concluded even five years after an FIR is registered. Does it mean that throughout this period of five years, as long as the investigation is not concluded, the passport of an accused has 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.

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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, or have not made any substantial progress so as to clearly indicate the precise roles of the accused, and no precise information is available on how they are likely to hamper the further progress of investigations, it would not be possible to simply keep the passport impounded on the ground that the allegations in the case are serious. In other words, the progress and stage of investigations is a relevant factor that will have to be considered by the passport authority when called upon to decide whether a passport of an accused named in an FIR which is under investigation should be continued to be kept impounded.

38. The following observations of the Supreme Court in M.A.

Rasheed & Ors v. The State of Kerala (1974) 2 SCC 687 (SCC, p.

690) are relevant in this context:

“10. Administrative decisions in exercise of powers even conferred in subjective terms are to be made in good faith on relevant considerations. The courts inquire whether a reasonable man could have come to the decision in question without misdirecting himself on the law or the

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facts in a material respect. The standard of reasonableness to which the administrative body is required to conform may range from the court's own opinion of what is reasonable to the criterion of what a reasonable body might have decided. The courts will find out whether conditions precedent to the formation of the opinion have a factual basis.” (emphasis supplied)

39. Further in Indian Nut Products v. Union of India (1994) 4 SCC

269, it was held (SCC, p.274):

“10. It is well-settled that if a statute requires an authority to exercise power, when such authority is satisfied that conditions exist for exercise of that power, the satisfaction has to be based on the existence of grounds mentioned in the statute. The grounds must be made out on the basis of the relevant material. If the existence of the conditions required for the exercise of the power is challenged, the courts are entitled to examine whether those conditions existed when the order was made. A person aggrieved by such action can question the satisfaction by showing that it was wholly based on irrelevant grounds and hence amounted to no satisfaction at all. In other words, the existence of the circumstances in question is open to judicial review.”

40. In the context of the Passports Act itself, the following observations of this Court in Aditya Khanna 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

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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 & 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 specific orders within a period of four months from the date of issuance of the order impounding the petitioner's passport, namely, 10.2.2006.”

42. The ratio of the above decisions is that the impounding of a passport under Section 10(3) (c) of the Act of a person facing criminal investigation cannot be indefinite or open-ended. In the considered view of this Court, consistent with the law explained in the above decisions, the power to keep a passport impounded has to be exercised reasonably and that can be ensured only if some time-limit is indicated in an order passed with reference to Section 10(3)(c) by the

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CPO. In other words, while impounding a passport with reference to section 10 (3)(c) of the Act, the CPO will have to indicate the time till which the passport will be kept impounded. It will further be indicated therein that if the passport is proposed to be kept impounded beyond that date, then the status of the case would be reviewed by the CPO at least 15 days prior to the date on which the impounding order is to come to an end. That will lend some degree of assurance that the power under Section 10(3) (c) of the Act is not being exercised mechanically and that the authority will consider the relevant materials before deciding to continue to keep the passport impounded.

43. Even in the present case, the order dated 15th February 2007 passed by the learned Single Judge acknowledged the fact that the case was still at an early stage of investigation. Not even three months had elapsed since the lodging of the FIR. Therefore, it was felt that it was too early to pass an order of releasing the passport. The learned

Single Judge, in the concluding para of the order, nevertheless observed that if the circumstances changed, then the Petitioner could

“seek an appropriate order.”

44. It is not possible to agree with the submission of the Respondents that even after the Supreme Court set aside the order of the High

Court‟s order dated 15th February 2007, the observations made by the

High Court on merits were not wiped out and could be relied upon by the passport authorities to justify their decision to keep the petitioner‟s passport impounded indefinitely. Once the order dated 15th February

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2007 of the High Court has been set aside by the Supreme Court, it would be futile for the Respondents to continue to refer to some of the observations made 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 time schedule that may be set by this Court for completing that exercise.

46. Mr. Kaul, on his part, informed the Court on instructions that this exercise could be undertaken by the Appellate Authority itself and

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that the Petitioner will not insist that it should be undertaken in the first place by the CPO since that might give him right of appeal before the Appellate Authority under Section 11 of the Act. He was willing to have the Appellate Authority i.e. the Special Secretary (AD &

Consular, Passport & Visa), MEA decide the issue on remand of the matter to it by this Court.

47. Having considered the above submissions, this Court directs the

Appellate Authority i.e. the Special Secretary (AD & Consular,

Passport & Visa), MEA to determine afresh, without being influenced in any manner by any of the observations made in the order dated 15th

February 2007 by this Court in Crl. Rev. Petition No. 49/2007 or the order dated 24th January 2008 of the Supreme Court in Criminal

Appeal No. 179 of 2008 (which order in any event makes it clear that the Supreme Court does not express any opinion on merits) or the earlier orders dated 30th January 2008 and 25th March 2008 passed by the CPO, the order dated 22nd August 2008 passed by the Appellate

Authority, or any observations on merits that may have been made by this Court in the present order. The Appellate Authority will take note of the contentions of the parties as noted in the present order and apply its mind to the relevant factors that arise for consideration in determining whether the continued impounding of the Petitioner‟s passport is in public interest with reference to Section 10(3)(c) of the

Act.

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48. The Petitioner shall appear in person or through counsel before the

Appellate Authority on 10th March 2010 at 11.00 am. It will be open to the Petitioner to file a written note of submission and place any other document which he considers to be relevant for this purpose. It will be open to the CBI and the UOI to appear through their respective counsel on the same date. After hearing the parties, the Appellate

Authority will give its decision within a period of three weeks thereafter and in any event on or before 31st March 2010. A copy of the said order will be communicated to the Petitioner or his counsel within a period of one week thereafter.

49. If the Petitioner is still aggrieved by the order, it will be open to the Petitioner to file an appropriate application in this writ petition itself.

50. List this writ petition on 19th April 2010 for further hearing.

51. Order be given dasti to learned counsel for the parties. A certified copy of this order be delivered to the Appellate Authority within a period of three days from today.

S. MURALIDHAR, J. MARCH 05, 2010 rk

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