HEADNOTES;
PARA 23. Simply on the basis of the report of the J&K CID, which did not recommend to issue Passport, the Passport Officer under the provisions of Passport Act has not to shut his eyes and to act on that. Since the Passport applied for by the petitioner has not been issued as the same was not recommended for security clearance by the CID, the decision taken by both, Passport Officer as well as the appellant authority, is misplaced on account of security. Atleast Passport Officer should have, in the background of the facts andmcircumstances, if required, asked the police and CID agency as to whether there is anything adverse against the petitioner. In such a situation without going into the PVR, refusal on part of the Passport Officer simply be termed as non-application of mind. All the above referred facts and circumstances were to be looked into along-with the report of CID. Passport Officer has not to act as mouthpiece of the CID (nodal agency). When an authority is vested with the power, same is to be exercised judiciously and not arbitrarily as has been done in the instant case.
PARA 25.Viewed thus, this Court is of the considered opinion that the ground on which the request of the petitioner for re-issue of the Passport has been rejected is totally untenable and unsustainable in the eyes of law. The petitioner, who claims to be an octogenarian, in absence of any adverse security report, cannot be deprived of her fundamental right guaranteed to her under Article 21 of the Constitution of India, to travel abroad as an India citizen.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) 1793/2022
Reserved on: 14.12.2022
Pronounced on: 31.12.2022
Gulshan Nazir
…Appellant/Petitioner(s)
Through: Mr. Jehangir Iqbal Ganai, Sr.Adv.,with
Mr. Muzaffar Nabi Lone, Adv.
Vs.
Union of India & Ors.
…Respondent(s)
Through: Mr. T.M.Shamsi, DSGI, for R-1, 2 & 5.
Ms. Asifa Padroo, AAG for R- 3, 4 & 6.
CORAM: HON’BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE
JUDGMENT
1. Petitioner, through the medium of this Writ Petition, challenges the Order No.VIII/402/App-24/2021 dated 04.08.2022 (for short ‘impugned order’) passed by respondent No.2-Joint Secretary, PSP and Chief Passport Officer, New Delhi (hereinafter referred as ‘appellate authority’) and the communication No. POSK/Court/2021/(77&78)/154-57 dated 26.03.2021 issued by respondent No.5-Passport Officer Srinagar, whereby the petitioner has been refused issuance of Passport in her favour, on the ground
that the provisions of Section 6(2) (c) of the Passport Act, 1967 were attracted in her case.
2. The petitioner who claims to be a senior citizen, applied for issuance of fresh Passport before respondent No.5-Passport Officer Srinagar against a proper receipt on 14.12.2020 who in turn sought police verification from respondent No.4 - Additional Director General of Police CID J&K and respondent No.6 - Senior Superintendent of Police Srinagar. It is stated that despite efflux of more than three months, police verification report was not submitted constraining the petitioner to file representation before respondent No.6, requesting therein to forward the police verification report to respondent No.5 at an earliest, which report however, was not submitted.
3. Thereafter, the petitioner approached this Court through WP(C) No.
383/2021 seeking direction upon the respondents to issue Passport in
her favour expeditiously. Respondent Nos. 3, 4 and 6 –(local
Police/CID), in their reply submitted that the Police Verification
Report (PVR) in relation to appellant-petitioner stands forwarded to
the respondent-Regional Passport Officer Srinagar vide No.
CID/Final/21/017558-017559 dated 18.03.2021. RespondentPassport authority also produced a communication vide No.
POSK/Court/2021/(77&78)/154-57 dated 26.03.2021 issued by
Passport Officer Srinagar informing that issuance of Passport to the
petitioner-appellant was ‘refused’ as the same was “not
recommended passport case” by Nodal Agency J&K CID, which
was mandatory.
4. The said petition was considered and dismissed by this Court vide
order dated 29.03.2021, which order was challenged before the
Division Bench of this Court through the medium of LPA No.
49/2021. On consideration of the said appeal, Division Bench was
pleased to dispose of the appeal by providing liberty to the petitioner
to approach the appropriate authority to avail the proper remedy available to her under the Scheme and on receipt of the appeal, the
authority concerned was directed to consider and decide the same on
its merits strictly under rules, regulations and the provisions of the
Passport Act, uninfluenced by the observations made in the
judgment dated 29.03.2021 impugned therein.
5. As a sequel to the liberty granted to the petitioner by the Division
Bench, she filed an appeal before respondent No.2 under Section 11
of the Passport Act, challenging the communication dated
26.03.2021 of respondent No.5-Passport Officer Srinagar, refusing
issuance of Passport to the petitioner. However, as submitted by
learned counsel for the petitioner, respondent No.2 chose not to
decide the appeal for the reason best known to him, compelling the
petitioner to again approach this Court through Writ Petition WP(C)
No. 2543/2021 and this Court vide order dated 08.12.2021 directed
respondent No.2 to ensure that the appeal stated to have been filed
by the petitioner is considered and finally disposed of by or before
11.02.2022.
6. Thereafter, observing non-compliance of the order dated 08.12.2021,
petitioner filed a Contempt Petition CCP(S) No. 132/2022.
Respondent-appellate authority, however rejected the petitioner’s
appeal, vide impugned Order No. VIII/402/App-24/2021 dated
04.08.2022.
7. Petitioner aggrieved of the impugned order passed by the appellate
authority has challenged the same through the medium of this Writ
Petition.
8. Objections filed on behalf of respondent Nos. 1, 2 and 5 are
suggestive of the fact that the petitioner had applied for re-issue of Passport vide File No. SG1075060873220 dated 14.12.2020 in lieu
of her previous Passport bearing No. J4359020 dated 26.11.2010
issued by the competent authority. The police verification report in
respect of the petitioner was received from J&K CID in a
sealed/confidential envelop vide No. CID/Final/21/017558-17559
dated 18.03.2021 containing report therein “not recommended for
issuance of Passport” due to security clearances withheld. On the
basis of the said police report, the respondent-Passport Officer
issued a ‘refusal order’ under Section 6(2)(c) of Passport Act 1967.
The appeal of the petitioner was also rejected by the appellate
authority. It is submitted by the respondents that in view of the
police verification report this petition has become infructuous, as
such, is liable to be dismissed.
9. On the other hand, respondent No.4 in its reply has submitted that
the petitioner has wrongly impleaded respondent No.4 in the instant
matter, as the CID is an intelligence wing of the Government and has
a limited role to the extent of discreetly verifying the
character/antecedents of persons as required by the
Passport/competent authorities. The role of CID is completed as
soon as the report is forwarded to the Passport authority. The CID
has no prerogative of deciding whether or not to issue Passport,
which is the sole domain of Passport authorities having statutory
mandate to that extent. The report of the CID has only an assistive
and not decisive role in such instances.
10.While arguing the matter, Mr. Jehangir Iqbal Ganai, learned senior
counsel for the petitioner vehemently argued that there are no
allegations against the petitioner in the CID report and the Passport Officer has not applied mind while rejecting the request of the
petitioner for issuance of Passport. He further argued that the
petitioner is a senior citizen of more than 80 years of age and what
security threat can the Country have in issuing Passport in her favour
for travelling aboard. Further contention of learned senior counsel is
that the petitioner is not a member of any banned organization and
has a right to travel anywhere in the world being the peace loving
citizen of India. Further argument of learned counsel is that right to
travel abroad is a part of person’s personal liberty as enshrined under
Article 21 of the Constitution which could not be denied except in
accordance with the procedure established by law.
11. On the contrary, Mr. T.M.Shamsi, learned DSGI, contends that the
Passport Officer has to rely on the police verification report while
issuing Passport in favour of any person. CID recommendation is
essential for issuance of Passport or otherwise. Learned DSGI
submits that the Passport authority has to act under law after getting
‘clearance’ for issuance of Passport in favour of a person. When
there is a negative report from the CID against any person, the
Passport authority cannot issue a Passport in favour of that person.
12. Submission of Ms. Asifa Padroo, learned AAG, appearing for
respondent No.4, is that the CID has a limited role in the matter as
the role of the CID completes as soon as the report is forwarded to
the Passport authority, which has a decisive authority whether to
issue a Passport or not in favour of a person who applied for the
same.
13. Heard learned counsel for the parties at length and considered.
14. During the course of arguments, this Court found it imperative to
call for the CID Police Verification Report (PVR), for perusal
relating to the petitioner, accordingly, learned counsel for respondent
No.4, in terms of order dated 14.12.2022, was directed to produce
the CID report, on the basis of which the Passport Officer has based
his opinion. Pursuant to the direction of this Court issued in terms of
order dated 14.12.2022, Ms. Asifa Padroo, AAG has produced the
report formulated by J&K CID, on perusal whereof, it appears that
the police verification report was formulated in reference to two
cases bearing No. SG1065057682420 and No. SG1075060973220,
as both the applications moved by the petitioner and her daughterMs.Mehbooba Mufti were dealt with together and in respect of both
the applications, PVR remarks were recorded as: ‘Passport service
not recommended and connected security clearance withheld’.
15. On further perusal of the report which has been classified as ‘top
secret’, it reveals that the police verification report has been
formulated indicating the security angles for Passport clearance of
Ms. Mehbooba Mufti only. So far as the petitioner is concerned,
there is not even an iota of allegation which may indicate with regard
to any security concerns of the State. The only aspect with regard to
the petitioner is the reference of investigation by two agencies;
Enforcement Directorate and CID CIK with regard to some of the
transactions regarding some bank accounts maintained by the
petitioner either separately or jointly with Ms. Mehbooba Mufti.
16. On going through the report, produced by learned AAG, as a whole,
there cannot be any concern with regard to security risk which has
been based by the Passport Officer as well as the appellate authority to deny issuance of Passport in favour of the petitioner. The only
point with regard to the investigation of the case under PMLA is
with regard to the petitioner herein and in view of the involvement of
the petitioner, in case she has been facing charge before a court
under some provisions of law particularly PMLA, ‘no objection’ has
to be sought from the trial court. However, there is nothing on record
to say that charge-sheet has been laid against the petitioner or not.
17. Right to travel abroad inheres in the right to life and liberty
guaranteed under Article 21 of the Constitution of India. This right
can be curtailed by the Passport Officer on the basis of the available
material and after entering into satisfaction that either Passport could
not be issued or if already issued, the same is to be impounded. The
Passport Officer, in all situations has to take the decision strictly in
accordance with the provisions of Passport Act 1967.
18. Hon’ble Supreme Court in a case reported as ‘AIR 1967 SC 1836
Satwnat Singh Sawhney Vs. D. Ramarathnam’, observed that the
right to travel abroad was a part of person’s personal liberty as
enshrined under Article 21 of the Constitution, which could not be
denied except in accordance with the procedure established by law.
The Court has held:-
“…that under Article 21 of the Constitution no
person can be deprived of his right to travel
except according to procedure established by
law.”
19. A similar view is reiterated in the decision rendered by 7-Judge
Bench of the Hon’ble Apex Court in a case ‘Maneka Gandhi Vs.
Union of India & Anr. (1978) 1 SCC 248’, wherein it was held
that:-
“….the expression "personal liberty" in Article
21 takes in the right of locomotion and travel
abroad and under Article 21 no person can be
deprived of his right to go abroad except
according to the procedure established by law and
since no law had been made by the State
regulating or prohibiting the exercise of such
right, the refusal of passport was in violation
of Article 21 and moreover the discretion with the
executive in the matter of issuing or refusing
passport being unchannelled and arbitrary, it was
plainly violative of Article 14 and hence the order
refusing passport to the petitioner was also
invalid under that Article. This decision was
accepted by Parliament and the infirmity pointed
out by it was set right by the enactment of
the Passports Act, 1967. This Act, as its preamble
shows, was enacted to provide for the issue of
passports and travel documents to regulate the
departure from India of citizens of India and
other persons and for incidental and ancillary
matters.”
The Court has further held that:-
“…. We, however, wish to utter a word of caution
to the Passport Authority while exercising the
power of refusing or impounding or cancelling a
passport. The Passport Authority would do well to
remember that it is a basic human right
recognized in Article 13 of the Universal
Declaration of Human Rights with which the
Passport Authority, is interfering when it refuses
or `impounds or cancels a passport. It is a highly
valuable right which is a part of personal liberty,
an aspect of the spiritual dimension of man, and
it should not be lightly interfered with. Cases are
not unknown where people have not been allowed
to go abroad because of the views held, opinions
expressed or political beliefs or economic
ideologies entertained by them. It is hoped that
such cases will not recur under a Government
constitutionally committed to uphold freedom and
liberty but it is well to remember, at all times, that
eternal vigilance is the price of liberty, for history
shows that it is always subtle and insidious
encroachments made ostensibly for a good cause
that imperceptibly but surety corrode the
foundations of liberty.”
20. In essence a Passport is a document which identifies the holder and
provides evidence of his nationality. The refusal of the Passport or travel documents is dealt with by Section 6 of the Passport Act
1967, which for facility of reference is reproduced hereunder:-
“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 country under clause (b) or clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely:—(a) that the applicant may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India;(b) that the presence of the applicant in such country may, or is likely to, be detrimental to the security of India;(c) that the presence of the applicant in such country may, or is likely to, prejudice the friendly relations of India with that or any other country;(d) that in the opinion of the Central Government the presence of the applicant in such country is not in the public interest.
(2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely:—(a) that the applicant is not a citizen of India;(b) that the applicant may, or is likely to, engage outside India in activities prejudicial to the sovereignty and integrity of India;(c) that the departure of the applicant from India may, or is likely to, be detrimental to the security of India;(d) that the presence of the applicant outside India may, or is likely to, prejudice the friendly relations of India with any foreign country;(e) that the applicant has, at any time during the period of five years immediately preceding the date of his application, 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;(f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India;(g) that a warrant or summons for the appearance, or a warrant for the arrest, of the applicant has been issued by a court under any law for the time being in force or that an order prohibiting the departure from India of the applicant has been made by any such court;(h) that the applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such repatriation;(i) that in the opinion of the Central Government the issue of a passport or travel document to the applicant will not be in the public interest.”
21. Sub Section(2) of Section 6 of the Passport Act clearly provides that
application for grant of renewal of passport shall be refused only on
the grounds mentioned in the Section and on no other ground. Apart
from other grounds, Clause (c) of Sub Section (2) of Section 6
provides that request for grant or renewal of passport or travel
documents can be refused, if departure of the applicant from India
may, or is likely to, be detrimental to the security of India.
22. There appears no ground to refuse issue or renewal of Passport
requested by the petitioner. Even, there is not an iota of allegation
against the petitioner which may point out to any security concerns.
The police verification report formulated by CID CIK cannot
override the statutory provisions of Section 6 of the Passport Act
1967. Otherwise also in the report relied upon by the respondents, nothing adverse has been recorded against the petitioner, with regard
to any security concerns. The only aspect with regard to the
petitioner is the reference of investigation by two agencies;
Enforcement Directorate and CID CIK with regard to some of the
transactions regarding some bank accounts maintained by the
petitioner either separately or jointly with Ms. Mehbooba Mufti.
23. Simply on the basis of the report of the J&K CID, which did not
recommend to issue Passport, the Passport Officer under the
provisions of Passport Act has not to shut his eyes and to act on that.
Since the Passport applied for by the petitioner has not been issued
as the same was not recommended for security clearance by the
CID, the decision taken by both, Passport Officer as well as the
appellant authority, is misplaced on account of security. Atleast
Passport Officer should have, in the background of the facts and
circumstances, if required, asked the police and CID agency as to
whether there is anything adverse against the petitioner. In such a
situation without going into the PVR, refusal on part of the Passport
Officer simply be termed as non-application of mind. All the above
referred facts and circumstances were to be looked into along-with
the report of CID. Passport Officer has not to act as mouthpiece of
the CID (nodal agency). When an authority is vested with the
power, same is to be exercised judiciously and not arbitrarily as has
been done in the instant case.
24. It appears that the Passport Officer had acted on the forwarding
letter of CID, instead of analyzing its report in detail. The PVR
prepared by J&K CID was with regard to two applications one by
the petitioner and other by her daughter. The report has exhaustively
dealt with regard to petitioner’s daughter making references to her
ideology and activities which were termed as risk to the security of
India, however, there is no mention with regard to the petitioner in
the report in question, on the basis of which recommendation was not made to re-issue Passport in favour of the petitioner and the
Passport Officer refused to issue the same for the reason of
‘security’. The appellate authority also seems not to have perused
the Police Verification Report and upheld the order of the Passport
Officer, on the wrong premise of security without any foundation.
25.Viewed thus, this Court is of the considered opinion that the ground
on which the request of the petitioner for re-issue of the Passport has
been rejected is totally untenable and unsustainable in the eyes of
law. The petitioner, who claims to be an octogenarian, in absence of
any adverse security report, cannot be deprived of her fundamental
right guaranteed to her under Article 21 of the Constitution of India,
to travel abroad as an India citizen.
26. For the reasons mentioned hereinabove and the legal position
discussed on the subject, the petition on hand is allowed. The orders
impugned are set aside. Respondent-Passport Officer, shall consider
the entire matter afresh and pass orders thereon within a period of
six weeks from the date copy of this order is served upon the said
respondent. CID report, pertaining to the petitioner, as was produced
by Ms. Asifa Padroo, learned AAG for the perusal of the Court, is
returned back to her.
27. Petition, along-with pending application(s), if any, is disposed of
accordingly.
Tags:
Judgment