Saturday, 9 June 2018

Whether passport can be returned to accused if police has illegally seized passport?

Considering the observations of the Courts in the aforesaid
decision, it is clear that the power of impounding are vested with
the Passport Authority. In the circumstances, the passport was

seized by the respondents on 13th March, 2014. Retention of
passport for such a long period amounting to impounding, which
is not permissible in law. The illegality cannot continue in
perpetuity. It is within the domain of the Passport Authority to
initiate action under Section 10(3)(e) of the Passport Act. In the
light of the observations of the Supreme Court in the case of
Suresh Nanda (Supra), the decision can be taken by such
Authority after hearing the passport holder. The illegal
impounding therefore cannot be continued by handing over the
passport by the respondents to the Passport Authority after a
lapse of more than three years. However, it would be open to the
Passport Authority to initiate any action under Section 10(3)(e) of
the Passport Act. The passport, however, is required to be
returned to the applicant. This order is without prejudice to the
rights and contentions of the respondents any other Competent
Authority, Passport Authority to initiate action and of impounding
under the provisions of the Passport Act.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.59 OF 2018

Jignesh Prakash Shah Vs. Central Bureau of Investigation, 

CORAM : PRAKASH D. NAIK, J.

DELIVERED ON : JUNE 04, 2018.



With consent of both the parties, the application was
heard for final disposal.
2 The applicant has invoked the revisional jurisdiction
of this Court vide Section 397 of the Code of Criminal Procedure
(Cr.P.C.), being aggrieved by order dated 28th September, 2017,
passed by the Special Judge for CBI City Civil and Sessions Court,
Greater Bombay in Misc. Application No.596 of 2017. The Matter
was heard and order was reserved. Thereafter, there was change
in roaster, which was followed by Summer Vacation.
3 The brief facts of the prosecution are as follows:
On 12th February, 2014, a report was filed by Deputy
S.P. CBI BS & FC Mumbai against officials of PEC Limited
(Project and Equipment Corporation of India Limited, New Delhi)
& others as well as M/s.NSEL (National Spot Exchange Limited)
and its officials, M/s.FTIL (Financial Technology India Limited)
and its CMD and private parties/defaulters at Delhi, namely,
M/s.Brinda Commodities Pvt. Limited, M/s. Tavishi Enterprises
Pvt. Ltd., M/s.Dullison Cereals and Dullison Foods located at

Karnal, Haryana and unknown officials of Department of
Consumer Affairs in connection with conspiracy amongst the
accused during the period 2007 to 2013 to cheat PEC Limited and
siphoning of its funds by floating accommodative and fraudulent
paired contract for trading in agro commodities on the platform
of NSEL without actually undertaking any genuine trade. The FIR
was lodged on 12th February, 2014 for the offences under Section
120-B read with 409, 420, 467, 468, 471 and 474 of the Indian
Penal Code (IPC) and under Sections 13(2) read with Section
13(1) (d) of Prevention of Corruption Act, 1988. It is further
alleged that the accused have prepared fake warehouse
receipts/allocation letters and other documents in prosecution of
conspiracy hatched, which caused wrongful loss to PEC Limited
and corresponding wrongful gain to the accused. On completing
investigation, final report was submitted to the Court against the
accused on 21st December, 2016.
4 During the course of investigation on 13th March,
2014, search was conducted by the investigating machinery at
the residential and office premises of the applicant and various
documents were seized including passport bearing No.Z2080612
and previous passports bearing nos.G4723509, F4759758,
E3617176 and M242549.

5 The applicant preferred an application for return of
passport before the Special Court which was numbered as
Miscellaneous Application No.30 of 2015. In the said application,
it was contended that the passport of the applicant was seized by
CBI on 13th March, 2014, during the search of his premises. The
investigation is over. Since the applicant is the director of the
company and in connection with the business as well as family
affairs, he intend to move abroad, he is unable to do so due to
seizure of passport. The said application was opposed by CBI.
It was stated that the offence is serious in nature. Considering
the gravity of the offence and likelihood of applicant fleeing away
from justice, the passport is required to be detained till
completion of investigation. The said application was rejected by
order dated 26th March, 2015.
6 After filing the charge-sheet, the case was numbered
as CBI Special Case No.62 of 2016. The summons were issued to
all the accused including the applicant. The applicant appeared
before the Special Judge on 22nd March, 2017. The applicant was
granted bail by the learned Special Judge on the same day. While
granting bail, the Court imposed the conditions that the applicant
shall not leave India without the permission of the Court as well

as the CBI. He was also directed to furnish his permanent
address as well as contact number to CBI and to furnish the
addresses of his two relatives along with their permanent address
and contact numbers.
7 The applicant thereafter preferred an application
before the Special Judge viz. Miscellaneous Application No.596 of
2013 for return of his passport. The said application was
preferred on 3rd May, 2017. In the application, it was contended
that the earlier application for return of passport was rejected by
the said Court on the ground that investigation is in progress.
However, thereafter there is significant change in the
circumstances, because the CBI has completed the investigation
in the matter and filed a charge-sheet in the Court. The applicant
is also granted bail by the Court on 22nd March, 2017. It was also
contended that the co-accused had preferred an application
before the said Court seeking return of passport which was
allowed by order dated 27th October, 2014. It was also submitted
that the seizure of the passport to the applicant by CBI is illegal.
8 The application was opposed by respondent – CBI by
filing reply. The CBI opposed the prayer on the ground that the

applicant has played a major role in the case. Grant of bail does
not imply that he is exonerated in the case. It was also stated that
the accused – applicant may flee or abscond from the country
hampering the case of the prosecution. The Special Judge vide
order dated 28th September, 2017, rejected the said application.
9 Mr.Desai, learned Senior Advocate appearing for the
applicant submitted that the learned Special Judge has committed
a grave error in rejecting the application for return of passport
and further issuing directions to the respondents to forward the
passport to the passport Authority, to adjudicate on impounding
of passport of the applicant. He advanced several submissions to
assail the impugned order dated 28th September, 2017, which can
be summarized as follows:-
(i) The passport was seized on 13th February, 2014. there is no
explanation as to why the same was seized;
(ii) The investigation was completed and the charge-sheet has
been filed. The charge-sheet do not deal with relevance of
the passport. There is no explanation with regards to
seizure of passport and how it is relevant for the

prosecution case.
(iii) The co-accused had preferred an application for return of
passport during the pendency of investigation which was
returned to the said person;
(iv) There is no material on record to justify the apprehension
of fleeing justice expressed by CBI. The applicant had cooperated
with the investigation. He was granted bail by the
Special Court with the condition that he shall not leave
India without the permission of the Court;
(v) Seizure of passport is illegal and untenable in law. The
Special Court has no jurisdiction to direct the CBI to
forward the passport to passport Authority;
(vi) The passport is not an incriminating document in the
prosecution case and the same is not part of list of
documents among the charge-sheet filed against the
accused. It is not an evidence against the applicant –
accused and the seizure itself was illegal;

(vii) The trial Court has misread and misunderstood the law laid
down by the Hon'ble Supreme Court in the case of Suresh
Nanda (Supra). The CBI never chose to take any steps
towards impounding of the applicant's passport under the
relevant provisions of the Passport Act by Passport
Authority. Nothing had prevented them from taking such
steps and there is omission to do so which clearly show that
they did not feel that it was a fit case for impounding the
passport of the applicant;
(viii) The application for return of passport was clearly
supported by the judgment of the Hon'ble Supreme Court
in the case of Suresh Nanda (Supra), which was ignored
by the trial Court. The Court failed to appreciate that even
in the said case, the passport was directed to be handed
over to the owner of the passport;
(ix) The seizure of passport is illegal. Under Section 102 of
Cr.P.C., the CBI ought not to have seized the passport, as
the same was not suspected to have been stolen or creating
suspicion of commission of any offence. The seizure of
passport and its retention amounts to impounding of

passport, which cannot be done by the investigating
machinery as impounding of passport is a prerogative of
the passport Authority under Section 10(3) of the Passport
Act;
10 Mr.Desai, relied upon the following decisions:
(1) Suresh Nanda Vs. Central Bureau of Investigation;
(2) M.T. Enrica Laxie Q Anr. Vs. Doramma & Ors.1
;
(3) S. Sathyanarayana Vs. State of Karnataka2
;
(4) Sir Mohammed Tasnim Vs. State of Karnataka3
;
(5) Devashish Garg Vs. Directorate of Revenue
Intelligence & Ors.4
;
(6) Veenita Gupta Vs. State5
;
(7) State of Maharashtra Vs. Tapas D. Neogy6
; and
(8) Avinash Bhosale Vs. Union of India7
.
11 Shri Venegaonkar, learned advocate appearing for
1 2012 SC 2134
2 ILR 2003 KAR 883
3 OLR 2015 KAR 5225
4 LPA628/2017 and CM Appl.34731-34733/2017, decided on 22.09.2017
5 Cri.R.C.No.1062 of 2010, decided on 02.11.2010
6 (1999) 7 SCC 685
7 WP (Cri) No.2432 of 2007, decided on 08.10.2008

respondent no.1 submitted that there is no infirmity in the order
passed by the learned Special Judge. The applicant is involved in
serious crime and is likely to abscond in case the passport is
handed over to him. He has played major role in crime. It is
submitted that the passport was seized during the course of
investigation on 13th March, 2014. First Information Report was
registered on 12th February, 2014. The search was carried out at
the instance of the investigating Authority and during the search,
the passport was seized within one month after registration of
FIR in accordance with Section 102 of the Cr.P.C. The applicant
played a major role in the crime which is subject matter of the
prosecution initiated against him. Several investors were
defrauded. The application preferred by the applicant was vague
and no specific reason was assigned for return of passport. The
prayer made in the application do no fit it in the application for
return of property i.e. passport. The police have power to seize
the passport during the course of investigation. The trial Court
has rightly rejected the application for return of passport. It is
further submitted that the learned Special Judge has directed
that the passport Authority shall decide the question of
impounding passport by following principles of natural justice
and thus no prejudice is caused to the applicant by impugned

order. There is no illegality in the orders passed by the Special
Judge directing the CBI to forward the passport to a concerned
Authority. It is submitted that the right of personal liberty
guaranteed under Article 21 of the Constitution of India is not an
absolute right but is qualified in view of pending prosecution
against the accused. In order to ensure that the applicant was not
leaving India without permission of the Court, which is one of the
conditions imposed by the Court while granting bail, the CBI had
retained the passport. He submitted that the directions issued by
trial Court were in consonance with observations of Supreme
Court in the case of Suresh Nanda (Supra). It is, thus,
submitted that the view is devoid of merits and the same be
rejected. Shri Venegaonkar relied upon the decision of this Court
in the case of Singaram Pandiyan Vs. State of Maharashtra
delivered in Criminal Revision Application No.469 of 2008.
12 On analysis of the documents on record it is
undisputed that the search was conducted by CBI on 13th March,
2014 and the passports in question were seized by them. The
search was conducted in pursuant to registration of FIR dated
12th February, 2014. Pending investigation, the applicant was not
arrested by CBI. However, on completing investigation, charge-

sheet was filed before the Special Judge for CBI. Summons was
issued by the Court to the applicant and in pursuant to that the
applicant appeared before the Court on 22nd March, 2017 and
applied for bail. The learned Special Judge allowed the said
application on the same day. While allowing the said application,
it was observed that it cannot be overlooked that on entire
investigation charge-sheet is filed and it is not the case of the
investigating agency that any further investigation required in
connection with the present applicant. It was also observed that
the applicant and others were not arrested by investigating
agency during the investigation or on filing the charge-sheet. On
summons issued by the Court, the applicant suo motu and
voluntarily appeared before the Court. This being the position, it
can be safely observed that there is no chance of fleeing away of
the applicant – accused from justice. While granting bail, the
learned Special Judge imposed certain conditions including the
directions to the applicant not to leave India without prior
permission of the Court as well as CBI. The earlier application for
return of passport was rejected on 26th March,2015 on the
ground that the investigation is still incomplete and at primary
stage and if applicant's presence is required all the while. It was
observed that the passport is required to be returned according

to precedent and law laid down by the Hon'ble Supreme Court,
however, being special case and huge public money is involved, it
is not desirable to exercise the discretion and return the
passport.
13 Prior to that, the co-accused had preferred an
application before the said Court and prayed for return of
passport. While allowing the said application by order dated 27th
October, 2014, preferred by the co-accused Joseph Massey, it was
observed that at this stage merely an offence is registered
against the said applicant and the investigation is going on. It is
not the case wherein there is likelihood of fleeing away from
justice and the applicant and his family is residing at Mumbai.
Moreover, merely allowing the applicant to renew his passport, it
cannot be observed that the Court facilitates him to move abroad.
The Court directed CBI to return the passport to the said
applicant on certain conditions which included the directions to
the said applicant not to leave India without taking prior
permission from the CBI or the Court. After grant of bail to this
applicant, he preferred an application for return of passport. The
learned Special Judge rejected the application and observed that
the decision in the case of Suresh Nanda (Supra), is binding on

the Court. The Court, however, directed CBI to send the passport
of the applicant along with a letter to passport Authority clearly
stating that the seized passport deserves to be impounding under
Section 10(3) of the Passport Act. The Court referred to the
observations of the Supreme Court in paragraph No.16 of the
aforesaid decision, wherein it was observed that the police may
have power to seize the passport under Section 102 of Cr.P.C., if it
is permissible but it does not have power to retain or impounding
the same because that can be done by the passport Authority
under Section 10(3) of the Passport Act. Hence, if the police
seized the passport which it has power to do, the same must be
sent along with letter to the passport Authority stating that the
passport deserves to be impounded being one of the reasons
mentioned in Section 10(3) of the Act. Hence, as per the
directions of the Supreme Court, the Court is duty bound to send
the passport Authority under Section 10(3) of the Passport Act.
14 The first application as aforesaid preferred by the
applicant for return of passport was rejected on the ground that
the discretion cannot be used in favour of the applicant.
However, application preferred by the co-accused for return of

passport on the ground that it was required to renew was allowed
by the trial Court during the pendency of investigation. The said
order dated 27th October, 2014 does not indicate that the passport
should be returned back by the said co-accused after its renewal,
but, as a matter of caution apparantely the condition was
imposed directing the said accused not to leave India without
taking prior permission from the CBI or Court. While deciding the
application for bail preferred by the applicant, CBI did not agitate
before the Court that the passport of the applicant is required to
be retained. Whereas, the Court was pleased to impose the
condition that the applicant shall not leave India without the prior
permission of the Court. It is pertinent to note that the conditions
imposed by the trial Court while granting bail did not prohibit
him from travelling abroad, but, a limited condition was imposed
that before doing so, he would seek permission from the Court as
well as from the CBI. The order granting bail, therefore, does not
create absolute bar on the applicant to travel abroad. Although,
the investigating agency has seized the passport and had opposed
return of the same. It is obvious that they were aware of the
directions of the Supreme Court in Suresh Nanda's case,
but, they never chose to take any step to initiate impounding of

passport of the applicant under the provisions of the Passport
Act, 1967. The passport was seized on 13th March, 2014 and since
then it continued to be in custody of CBI. The investigating
agency did not raise contention while opposing the application
preferred by the applicant for return of passport that there was
any necessity to impound the passport or that they are taking any
steps in that regard. The directions of the trial Court to the
investigating agency to send the passport to the passport
Authority stating that the same deserves to be impounded under
Section 10(3) of the Passport Act, 1967, were unwarranted. The
applicant had preferred an application for return of passport,
however, the same was not granted and the Court directed the
CBI to forward the passport to the passport Authority.
15 The passport was purportedly seized under Section
102 of Cr.P.C. There is nothing to show that the passport was
suspected to have been stolen nor the passport was found under
circumstances which creates suspicion of the commission of any
offence. In connection with Section 102 of Cr.P.C., if the property
seized is not incriminating or involved in any offence, nor any
offence is disclosed after seizure of the property, it cannot be
subject matter of seizure under Section 102 of Cr.P.C. The learned

counsel for the respondent submitted that the passport was an
incriminating documents, but, there was nothing to substantiate
the said contention. Even, before the trial Court while opposing
the application for return of passport, nothing was brought on
record to point out that the passport was an incriminating
document. The submission of learned counsel for the applicant
that passport is not part of the charge-sheet and not listed as
incriminating document in the charge-sheet was not countered.
In the reply opposing application for return of passport preferred
by applicant, it was stated that, although the passport is not an
incriminating document, by using the same the accused may flee
or abscond from country hampering the case of the proseuction.
In the case of Suresh Nanda, the Supreme Court has
categorically stated that the police has the power to seize the
passport under Section 102(1) of Cr.P.C. But, it does not have
powers to impound the same and such powers are available with
the passport Authority under Section 10(3) of the Passport Act,
1967. In the present case, the respondent CBI under the guise of
seizure of the passport has retained the same for almost three
years, which amounts to impounding and not permissible under
law.

16 Section 102 of the Code of Criminal Procedure read
as follows:
“102. Power of police officer to seize certain
property.
(1) Any police officer, may seize any property
which may be alleged or suspected to have been
stolen, or which may be found under circumstances
which create suspicion of the commission of any
offence.
(2) Such police officer, if subordinate to the officer
in charge of a police station, shall forthwith report
the seizure to that officer.
(3) Every police officer acting under sub- section
(1) shall forthwith report the seizure to the
Magistrate having jurisdiction and where the
property seized is such that it cannot be conveniently
transported to the Court, he may give custody
thereof to any person on his executing a bond
undertaking to produce the property before the
Court as and when required and to give effect to the
further orders of the Court as to the disposal of the
same.]”
17 The police officer during the course of investigation
can seize any property under Section 102 of Cr.P.C., if the said
property is alleged to be stolen or is suspected to be stolen or is
the object of the crime under investigation or has direct link with
the commission of offence for which the police officer is
investigating into. A property is not suspected of commission of

the offence which is being investigated into by the police cannot
be seized. Under Section 102 of the Code, the police officer can
seize such property which is covered by Section 102 (1) and no
other. One of the ground raised by the applicant challenging the
impugned order is that the police officer has no power under
Section 102 of Cr.P.C. to seize the property (passport), as the
same was not incriminating document within the purview of the
said provisions. The language used in Section 102 of the Code
defines the powers of the police officer to seize the property
specially where the allegations of the commission of an office is
levelled. Thus, the police officer has no Authority or power to
seize the property when it is not suspected to have been stolen,
nor it is found under circumstances which create suspicion of the
commission of any office having been committed unless discovery
of property leads to suspicion of offence having been committed.
The seizure of passport itself was illegal. In the present case, the
passport Authority has not passed any order of impounding the
passport of the applicant. The respondent has retained the
possession of the passport from the date it was seized. It is
apparent from the impugned order that the Court has applied the
rule in the case of Suresh Nanda (Supra). However, the Court
permitted to retain the passport and facilitated its onwards

transmission to the passport office.
18 In the case of Suresh Nanda (Supra), the passport
was seized pursuant to registration of FIR. Passport seized during
the search was retained by the investigating officer. An
application was moved before the Special Judge CBI for release of
the seized passport. That application was allowed and ordered to
release the passport subject to certain conditions. CBI preferred
criminal Revision Petition before the High Court which reversed
the order of the Special Judge and refused to release the
passport. The order of the High Court was challenged before the
Supreme Court. By contending that the power to impound the
passport has tobe exercised under Sub-section (3)(e) of Section
10 of the Act. The aforesaid provisions provides for impounding of
passport, if the proceedings in respect of an offence alleged to
have been committed by the holder of the passport or travel
documents is pending before a criminal court in India. The
passport Authority has power to impound the passport under
Section 10 of the said Act. Section 10(3)(e) of Passport Act reads
as under:
“10(3) The passport authority may impound or cause

to be impounded or revoke a passport or travel
document,—
(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;”
19 In the light of statutory provisions of the Passport Act
and the Code of Criminal Procedure, the Hon'ble Supreme Court
in the case of Suresh Nanda (Supra) has dealt with the issue
relating to impounding of passport and it would be appropriate to
quote relevant paragraphs of the said decision which are
necessary to deal with the impugned order passed by the trial
Court:
“10 Thus, the Act is a special Act relating to a
matter of passport, whereas Section 104 of the
Cr.P.C. authorizes the Court to impound document or
thing produced before it. Where there is a special
Act dealing with specific subject, resort should be
had to that Act instead of general Act providing for
the matter connected with the specific Act. As the
Passport Act is a special act, the rule that general
provision should yield to the specific provision is to
be applied. See : Damji Valaji Shah & another Vs.
L.I.C. of India & others [AIR 1966 SC 135]; Gobind
Sugar Mills Ltd. Vs. State of Bihar & others [1999(7)

SCC 76]; and Belsund Sugar Co. Ltd. Vs. State of
Bihar and others [AIR 1999 SC 3125].
11 The Act being a specific Act whereas Section
104 of Cr.P.C. is a general provision for impounding
any document or thing, it shall prevail over that
Section in the Cr.P.C. as regards the passport. Thus,
by necessary implication, the power of Court to
impound any document or thing produced before it
would exclude passport.
12 In the present case, no steps have been taken
under Section 10 of the Act which provides for
variation, impounding and revocation of the
passports and travel documents. Section 10A of the
Act which provides for an order to suspend with
immediate effect any passport or travel document;
such other appropriate order which may have the
effect of rendering any passport or travel document
invalid, for a period not exceeding four weeks, if the
Central Government or any designated officer on its
satisfaction holds that it is necessary in public
interest to do without prejudice to the generality of
the provisions contained in Section 10 by
approaching the Central Government or any
designated officer. Therefore, it appears that the
passport of the appellant cannot be impounded
except by the Passport Authority in accordance with
law. The retention of the passport by the respondent

(CBI) has not been done in conformity with the
provisions of law as there is no order of the passport
authorities under Section 10(3)(e) or by the Central
Government or any designated officer under Section
10A of the Act to impound the passport by the
respondent exercising the powers vested under the
Act.
13 Learned Additional Solicitor General has
submitted that the police has power to seize a
passport in view of Section 102(1) of the Cr.P.C.
which states:
“102. Power of police officer to seize
certain property: – (1) Any police officer
may seize any property which may be
alleged or suspected to have been stolen,
or which may be found under
circumstances which create suspicion of
the commission of any offence.”
14 In our opinion, while the police may have the
power to seize a passport under Section 102(1)
Cr.P.C, it does not have the power to impound the
same. Impounding of a passport can only be done by
the passport Authority under Section 10(3) of the
Passports Act, 1967.
15 It may be mentioned that there is a difference
between seizing of a document and impounding a

document. A seizure is made at a particular moment
when a person or Authority takes into his possession
some property which was earlier not in his
possession. Thus, seizure is done at a particular
moment of time. However, if after seizing of a
property or document the said property or document
is retained for some period of time, then such
retention amounts to impounding of the property/or
document. In the Law Lexicon by P. Ramanatha
Aiyar (2nd Edition), the word “impound”ยต has been
defined to mean,
“to take possession of a document or thing for
being held in custody in accordance with law.”
Thus, the word ”impounding” really means retention
of possession of a good or a document which has
been seized.
16 Hence, while the police may have power to
seize a passport under Section 102 Cr.P.C. if it is
permissible within the Authority given under Section
102 of Cr.P.C., it does not have power to retain or
impound the same, because that can only be done by
the passport Authority under Section 10(3) of the
Passports Act. Hence, if the police seizes a passport
(which it has power to do under Section 102 Cr.P.C.),
thereafter the police must send it along with a letter
to the passport Authority clearly stating that the
seized passport deserves to be impounded for one of
the reasons mentioned in Section 10(3) of the Act. It

is thereafter the passport Authority to decide
whether to impound the passport or not. Since
impounding of a passport has civil consequences,
the passport Authority must give an opportunity of
hearing to the person concerned before impounding
his passport. It is well settled that any order which
has civil consequences must be passed after giving
opportunity of hearing to a party vide State of
Orissa Vs. Binapani Dei [Air 1967 SC 1269].
17 In the present case, neither the passport
Authority passed any order of impounding nor was
any opportunity of hearing given to the appellant by
the passport Authority for impounding the
document. It was only the CBI Authority which has
retained possession of the passport (which in
substance amounts to impounding it) from October,
2006. In our opinion, this was clearly illegal. Under
Section 10A of the Act retention by the Central
Government can only be for four weeks. Thereafter
it can only be retained by an order of the Passport
Authority under Section 10(3).
18 In our opinion, even the Court cannot impound
a passport. Though, no doubt, Section 104 Cr.P.C.
states that the Court may, if it thinks fit, impound
any document or thing produced before it, in our
opinion, this provision will only enable the Court to
impound any document or thing other than a

passport. This is because impounding a passport is
provided for in Section 10(3) of the Passports Act.
The Passport Act is a special law while the Cr.P.C. is
a general law. It is well settled that the special law
prevails over the general law vide G.P. Singh's
Principles of Statutory Interpretation (9th Edition
pg. 133). This principle is expressed in the maxim
Generalia specialibus non derogant. Hence,
impounding of a passport cannot be done by the
Court under Section 104 Cr.P.C. though it can
impound any other document or thing.”
On reading the aforesaid observations, it is clear that
the Passport Act is a special act relating to matter of passport
whereas Section 104 of Cr.P.C. is a general provisions for
impounding any document or thing and the provisions of Passport
Act shall prevail upon the section in Cr.P.C. as regards the
passport. Thus, by necessary implication, the power of Court to
impound any document or thing produced before it would exclude
passport. The police may have power to seize the passport under
Section 102 of Cr.P.C. But, it does not have power to impound
which can be done only under Section 10(3) of the Passport Act.
Mr.Venegaonkar, however, stressed upon the observations of the
Supreme Court in paragraph 16 of the said decision wherein it
was observed that if the police seizes a passport (which it has

power under Section 102 of Cr.P.C), thereafter, the police must
send it along with a letter to the Passport Authority clearly
stating that the seized passport deserves tobe impounded for one
of the reasons mentioned in Section 10(3) of the Passport Act. It
is, thereafter, for the Passport Authority to decide whether to
impound the passport or not. Mr.Venegaonkar submitted that the
CBI had seized the passport in accordance with Section 102 of
Cr.P.C. and retained the same. He further submitted that in the
light of the aforesaid observations, the order passed by the trial
Court cannot be called into question as the trial Court has
observed that the CBI has to forward passport to the Passport
Authority with requisite letter. He further submitted that in
accordance with the said observations the Passport Authority is
directed to dealt with the issue of impounding after hearing the
applicant. Mr.Desai, per contra submitted that for more than
three years the passport was lying with the respondents and they
never chose to forward the same to the Passport Authority for
initiating action in accordance with Section 10(3) of the Passport
Act. He further submitted that the seizure of passport itself was
illegal and retention of passport for such a long time amounts to
impounding which was contrary to law and the illegality cannot
continue perpetually. There is much substance in the submission

advanced by Mr.Desai. In the present case, the Passport Authority
had not yet passed the order of impounding the passport. It is
only the CBI which had retained possession of the passport which
in substance amounts to impounding. The Supreme Court in the
above decision has observed that such retention is clearly illegal.
It is also observed that under Section 10-A of the Act, retention
by Central Government can only for four weeks and thereafter it
can only be retained by an order of the Passport Authority under
Section 10(3) of the Passport Act. It was also observed that even
Court cannot impound the passport. The contention of
respondents that the passport was seized and impounded by
exercising powers under Section 102 and other provisions of the
Code is devoid of merits. It is also relevant to note that although
in paragraph 16, the Supreme Court has stated that the police
must send the passport to the Passport Authority stating that the
seized passport deserves to be impounded under Section 10(3) of
the Act, the order of the High Court was set aside and the
respondents were directed to hand over the passport to the
appellant. The Supreme Court had also made it clear that it shall
be open to the respondents to approach the Passport Authority
under Section 10A of the Passport Act, for impounding the
passport of the appellant therein in accordance with law. The

said directions were issued in the light of the fact that the
passport was retained by the respondents after the same was
being seized under Section 102 of Cr.P.C. for a long period of
time. The Supreme Court has also made it clear that even seizure
under Section 102 of Cr.P.C. can be done if it is permissible in law
which should mean that the same should be done in consonance
with the requirement of Section 102 of Cr.P.C. In the present
case, there is nothing to show that possession of passport is
incriminating circumstance. The retention of passport by CBI has
not been done in conformity with law as there is no order of
Passport Authority under Section 10(3)(e) or by Central
Government or designated officer under Section 10-A of the
Passport Act. The observation in paragraph no.16 of Suresh
Nanda's (Supra) case that the police seized passport (which it
has power to do under Section 102 of Cr.P.C.), and, thereafter, the
police must send it to Passport Authority with letter has to be
understood and read in conjunction with the observation made in
the beginning of the same paragraph which starts with sentence
that, while the police may have power to seize a passport under
Section 102 of Cr.P.C., if it is permissible within the Authority
given under Section 102 of Cr.P.C. The question of forwarding
passport immediately after seizure may arise if the seizure is

within parameters of Section 102 of Cr.P.C. The observations of
Supreme Court that seizure of passport under Section 102 of
Cr.P.C. if permissible, would mean it qualifies all requirement of
said provisions. In present case, the seizure does not fit within
the purview of Section 102 of Cr.P.C. For the reasons stated in the
said decision, the Supreme Court did not direct that the passport
be sent to Authority and directed that it shall be returned to
appellant. In the circumstances, the directions of the trial Court
were uncalled for. It is pertinent to note that even while opposing
the said application, the CBI did not contend that they intend to
move an application before the Passport Authority in accordance
with Section 10 of the Passport Act.
20 Mr.Venegaonkar, however, strongly relied upon the
decision of this Court in the case of Singaram Pandian Vs.
State of Maharashtra (Supra). On reading the said decision, it
is clear that the Court had no occasion to deal with the
requirement of Section 102 of Cr.P.C. and the issues raised in the
present application. In another decision of the Division Bench of
this Court in the case of Avinash Bhosle (Supra), it was
observed by this Court that in accordance with the decision of the
Supreme Court in the case of Suresh Nanda (Supra), the act of

respondents in that petition, impounding passport is without
authority of law. The Court directed return of passport and did
not direct the respondents to forward it to Passport Authority and
reserved liberty to initiate action under the Passport Act. In the
factual aspects involved in the present matter, the directions
issued by the trial Court after a period of about more than three
years were not warranted. The seizure was contrary to Section
102 of Cr.P.C. Retention of passport was illegal and allowing
continuation of retention is improper. In the case of M.T. Enrica
Lexie & Anr. (Supra), the Supreme Court has considered the
requirement of exercising powers under Section 102 of Cr.P.C.
and it was observed that the police can seize any property during
the course of investigation, if it is alleged to be stolen or is
suspected tobe stolen or is the object of the crime under the
investigation or has direct link with the commission of offence for
which the police officer is investigating. The Karnataka High
Court in the case of S. Sathyanarayana (Supra) considered the
action of impounding the passport in purported exercise of
powers under Section 102 of Cr.P.Cc. The action was challenged
on the ground that the police officer has no power under Section
102 of Cr.P.C. To seize any property which may be alleged to be
stolen or have been suspected to have been stolen. In that case,

the police who conducted and seized certain properties including
the passport of the parties therein, which was not the subject
matter of theft, nor seizure of passport has created any suspicion
of commission of offence. The offences alleged against the
petitioner therein are forgery and misappropriation of funds.
Possessing a passport is not an incriminating circumstances. The
application for return of passports were made before the trial
Court which was rejected. On analyzing language of Section 102
of the Code, it was observed that there is no occasion to the
police to seize the property, if there is no allegation or where
there is no suspicion of commission of the offence or where the
circumstances do not create any suspicion for commission of
offence, in relation to the said property. The order of the trial
Court was set aside and the prayer to retain the passport was
allowed. In another decision relied upon by Mr.Desai delivered by
Karnataka High Court in the case of Sir Mohammed Tasnim
(Supra). The Court relied upon the decision in the case of
Suresh Nanda (Supra) while dealing with similar issue. It was
observed that the Passport Authority had not passed any order of
impounding the passport and the same was retained from the
date of seizure, which was illegal in terms of the said decision of
the Apex Court. In another decision of Delhi High Court in the

case of Devashish Garg (Supra), the question which arose
before the Court was whether in the light of the decision in case
of Suresh Nanda (Supra) where it was appropriate to the Court
to hold that impounding of passport without initiation of
proceedings under the Passport Act is unauthorized and then to
direct the respondents therein to forward the passport to the
concerned Regional Passport Officer for initiating the
proceedings for impounding / suspension of the passport in
accordance with the provisions of the Passport Act, 1967. The
trial Court in the said case had also directed that in the event
proceedings are not commenced within a period of two weeks
from the date of the order by the Passport Authority, the passport
be returned to the petitioner therein. While setting aside the said
order, the Delhi High Court in the case of Devashish Garg
(Supra) took into consideration the observations in the case of
Suresh Nanda (Supra) and in paragraph 6 observed as follows:
“6 It is evident from the impugned order that the
learned Single Judge was alive to and in fact applied
the rule in Suresh Nanda (supra). However, it is at
the same time facially apparent that instead LPA
628/2017 Page 6 of 7 of quashing the impounding

order, the Court permitted retention of the passport
and facilitated its onward transmission to the
Regional Passport Officer which in effect itself
amounts to impounding. This kind of impounding was
frowned upon and held to be unauthorized in Suresh
Nanda (supra) when it was declared that "even the
Court cannot impound a passport. Though, no doubt,
Section 104 Cr.P.C. states that the Court may, if it
thinks fit, impound any document or thing produced
before it, in our opinion, this provision will only
enable the Court to impound any document or thing
other than a passport." Thus, the facilities or
otherwise impounding, in our opinion, was not in
order. Therefore, the directions in paragraph 6
requiring the forwarding of the passport to the
Regional Passport Officer is hereby set aside. The
passport shall be released forthwith to the appellant.
This will, however, not preclude the Regional
Passport Officer from initiating proceedings under
Section 10 (1) of the Passport Act, 1967 in line with
the Single Judge's observations and declarations.”
21 In the case of Avinash Bhosle (Supra) the Court
considered in detailed observations in the case of Suresh Nanda
(Supra) and observed that in view of the clear pronouncement by
the Supreme Court, holding that the Passport Act to be a

complete Code in dealing with the impounding of passport, there
is no iota of doubt that the respondent's act of impounding the
petitioner's passport is without Authority of law. The submission
made on behalf of the respondents that the impounding of
passport could be made having regard to general provisions of
the Income Tax Act, regulating the seizure of documents cannot
be accepted. It can be relevant to note that one of the
submissions advanced by the learned Solicitor General that right
to hold a passport and travel abroad is not an unqualified and
absolute right and the same cannot be subject to regulations. The
Passport Act, though enacted to regulate issuance and
rectification of passport, thereby no amounts if the only statute
which empowers the executive Authority to retain or impound a
passport. The Passport Authority to impound the passport under
Section 10(3) is not exhaustive and there are other statutes
enabling exercise of similar or analogous powers in relation to
retention of passport, then, those powers would also be available
to the Authority for impounding the passport.
22 In the decision of the Madras High Court in the case of
Veenita Gupta (Supra), which was also placed into service by
Mr.Desai, the prayer of the petitioner was for return of the

passport. It was contended that though the police have power to
seize any document including passport, the Passport Act being an
special enactment, its provisions relating to impounding of
passport will prevail over the provisions found in the general law,
namely, the Criminal Procedure Code. The respondents had
contended that the passports were necessary for the proof of the
prosecution case as the entries were found therein regarding the
visits of the petitioners to foreign country during a particular
period and the same are relied upon by the prosecution to prove
the charges against the accused. The Court relied on the
aforesaid decision in the case of Suresh Nanda (Supra) and
took a view that for the purposes stated by the respondents, the
passport need not be impounded much against the provisions of
Passport Act, dealing with the impounding of passport. It was also
observed that the order passed by the trial Court would amount
to an order impounding the passport of the petitioner and others
which could not have been done by the Court below. In the
circumstances, the order of the trial Court was set aside and the
passports were directed to be returned to the petitioner.
Considering the observations of the Courts in the aforesaid
decision, it is clear that the power of impounding are vested with
the Passport Authority. In the circumstances, the passport was

seized by the respondents on 13th March, 2014. Retention of
passport for such a long period amounting to impounding, which
is not permissible in law. The illegality cannot continue in
perpetuity. It is within the domain of the Passport Authority to
initiate action under Section 10(3)(e) of the Passport Act. In the
light of the observations of the Supreme Court in the case of
Suresh Nanda (Supra), the decision can be taken by such
Authority after hearing the passport holder. The illegal
impounding therefore cannot be continued by handing over the
passport by the respondents to the Passport Authority after a
lapse of more than three years. However, it would be open to the
Passport Authority to initiate any action under Section 10(3)(e) of
the Passport Act. The passport, however, is required to be
returned to the applicant. This order is without prejudice to the
rights and contentions of the respondents any other Competent
Authority, Passport Authority to initiate action and of impounding
under the provisions of the Passport Act. It may not be
understood that this Court has made any observations on the
merits of the action to be initiated under the Passport Act. It may
not be also understood that this Court has made any observations
on the right of the petitioner to travel abroad, which has to be in
consonance with the conditions imposed by the trial Court while

granting bail. The applicant shall strictly adhere to the conditions
of bail imposed by the trial Court.
23 In view of the above, I pass the following order:
:: O R D E R ::
(i) Criminal Revision Application No.59 of 2018, is
allowed;
(ii) The impugned order dated 28th September,
2017, is set aside and the respondent is
directed to return the passport of the applicant
within a period of three weeks from today;
(iii) The respondents / Passport Authority will be at
liberty to initiate the proceedings for
impounding the passport in accordance with
Section 10(3)(e) of the Passport Act, 1967, and,
in the event, such proceedings are initiated, the
Passport Authority shall deal with the same in
accordance with law, without being influenced
by the observations made in this order;

(iv) Criminal Revision Application No.59 of 2018
stands disposed of.
 (PRAKASH D. NAIK, J.)

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