Friday, 26 June 2020

Kerala HC: Passport Authorities have no power to impose penalties or fine for violation of passport Act

1) The poignant question raised is whether an authority under the Passports Act, 1967, has any power to impose penalty/fine invoking the powers under Section 12 of the Act 1967. It is submitted by the petitioners that as per relevant provisions of the Passports Act, 1967, a passport authority
defined under Section 2(c) of the Act has only delegated powers to issue
passport under Section 5(2)(a) or reject an incomplete passport
application under Section 5(2)(c) or refuse a passport under Section 6(2)
or restrict the validity under Section 7(b) or impound/revoke a passport
under Section 10(3) of the said Act, and not to impose any penalty.

2) Taking into account the rival submissions made across the Bar,
our endeavour is to find out the legal purport of Section 12 of the Act
1967 extracted above. On a reading of Section 12(1), it is clear that
offences and penalties are prescribed for contravention of the provisions of Section 3 or for the reasons enumerated thereunder, which shall be punishable with imprisonment for a term prescribed thereunder or with fine prescribed thereunder or with both. Therefore, it is evident from the
provisions that in the event of any person found guilty, he is liable to be
punished with an imprisonment for a term prescribed thereunder or in
the alternative to impose fine prescribed thereunder or with both.
Therefore, on a deeper analysis of the provision, it is amply clear that the
passport issuing authority or any of the authorities under the Act, 1967
are given powers under the Passports Act, 1967 or Rules framed
thereunder, to initiate prosecution for the contravention of the provisions
of the Passports Act, 1967. A reading of the provision further shows
that, the power to punish with imprisonment is conferred only to the
Magistrates as provided under the Code of Criminal Procedure. Fine as
an alternative to imprisonment on finding guilty, can only be imposed by
the competent Magistrate who adjudicates the issue on the basis of any
complaint filed by the passport authority. Therefore, it is unequivocal that the passport authority is not vested with
any powers under Section 12 to impose any fine on any person who
commits any offence in contemplation of Section 12 of the Act 1967.

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
 THE CHIEF JUSTICE MR.S.MANIKUMAR
&
 MR. JUSTICE SHAJI P.CHALY

WP(C).No.7945 OF 2018(S)

 CITIZENS LEGAL RIGHT ASSOCIATION Vs  UNION OF INDIA

Dated this the 2nd day of June, 2020
S.Manikumar, CJ.

This is a public interest litigation filed by an organisation registered
apparently under the provisions of the Travancore - Cochin Literary,
Scientific and Charitable Societies Registration Act, 1955, and one of its
members. The issues raised arise under the Passports Act, 1967. The
poignant question raised is whether an authority under the Passports Act,
1967, has any power to impose penalty/fine invoking the powers under
Section 12 of the Act 1967. It is submitted by the petitioners that as per
relevant provisions of the Passports Act, 1967, a passport authority
defined under Section 2(c) of the Act has only delegated powers to issue
passport under Section 5(2)(a) or reject an incomplete passport
application under Section 5(2)(c) or refuse a passport under Section 6(2)
or restrict the validity under Section 7(b) or impound/revoke a passport
under Section 10(3) of the said Act, and not to impose any penalty.
2. The case projected by the petitioners is that there is no
provision empowering any officer to impose pecuniary penalty under the
Act 1967, even though Section 12 of the Act prescribes offences and
penalties, and the manner in which the power to be discharged, in

accordance with the adjudicatory mechanism prescribed thereunder.
According to the petitioners, even without the power for imposing any
fine in violation of the provisions of Sections 5, 6, 7 and 10, the fine is
being imposed by the authorities which is arbitrary and illegal. It is also
pointed out that the offences and penalties under Section 12 of the Act
1967 are criminal in nature and a passport authority is not empowered to
launch a criminal investigation against the passport applicants/holders
who allegedly commit/committed offences under Section 12 of the Act.
That apart, as per Section 15 of the Act 1967, the sanction for
prosecution for any offence under the Act 1967 can only be given by the
Government of India or any authority authorised by the Government of
India. It is pointed out that the said power has been delegated to the
State Governments as per GSR 662(E) dated 1.12.1979.
3. Therefore, the sum and substance of the contention put forth
by the petitioners is that the legal requirement under Section 15 makes it
vivid and explicit that the passport authority is not empowered to initiate
any prosecution under Section 12(1)(b). So also, it is submitted that the
High Court of Gujarat as well as the High Court of Delhi had occasion to
consider the issue and held that the authority under the Passports Act
invoking Section 12 of the Act 1967 has no power to impose penalty.
Petitioners have also produced various documents to establish that the Government of India has understood the issue in its proper perspective and it is accordingly that Ext.P11 Memorandum dated 16.12.2015 is issued, wherein it is stated that the Ministry intends to review and to
amend the Passports Act, 1967 and Rules made thereunder, in the wake
of the judgment of the High Court of Delhi dated 12.4.2013 in W.P.
(C)No.5818 of 2011. Therefore, it is ordered that “It is of the considered
view of the Department of Legal Affairs not to file an appeal against the
impugned order dated 12/04/2013 but to amend the Passports Act, 1967
to the extent to incorporate the provision as regards institution of
adjudicating authority in the Act to exercise the power of imposing the
pecuniary penalty on the violators of the Passports Act, 1967 so that the
power to levy as well as collect the pecuniary penalty in terms of Section
12 of the Act could be exercised by the passport authority itself”. So
much so, as per the Office Memorandum, suggestions were sought from
the passport issuing authorities with regard to the amendment of the
Passports Act, 1967. A time limit is also prescribed thereunder for the
suggestions/comments as required under the memorandum.
4. A detailed counter affidavit is filed by the Union of India and its
officials refuting the averments, claims and demands raised by the
petitioners. Among other contentions it is submitted that Section 12 of
the Passports Act speaks about offences and penalties but does not
specify the adjudicating authorities. However, it does not exclude the
Government/passport authority from taking decisions regarding levying
penalties. That apart, it is submitted that levying penalty is just one
among the many steps involved in processing applications as per Section
5 or 7 or 10 of the Passports Act, 1967 and it cannot be viewed as a
stand-alone procedure. Accordingly, the case put forth by the
respondents is that a penalty needs to be imposed on such applicants for
suppressing such material facts from the purview of the passport
authority, while submitting the application for issuance of passport.
Therefore, the penalty is used as a deterrent against such deliberate
suppression of information and if the applicant is not satisfied with the
penalty imposed, the applicant is at liberty to prefer an appeal to the
Government of India as prescribed under the statute. It is also pointed
out that Section 12 of the Passports Act, 1967 deals with offences of
varying degrees from suppression of personal information such as spouse
name, marital status, date of birth, address details, etc. for the purpose
of impersonation and forgery, and therefore, initiation of prosecution in
all such cases is not feasible due to the large number of applications
received at the Passport offices. It is also submitted that most of the
cases registered are compoundable in nature by levying penalty and if
the issue is left unchecked, such suppression would affect the quality of services and denigrate the passport issuance system and therefore seeks dismissal of the writ petition.
5. A reply affidavit is filed by the petitioners reiterating the stand
adopted and also producing an order issued by the Ministry of External
Affairs, Government of India dated 31.10.2016, addressed to the
Passport Officer, Passport Office, Surat, whereby the Regional Passport
Officer, Surat was requested/advised to stop the practice of levying
penalty of Rs.5,000/- for incomplete applications treating it as a case of
suppression of material information immediately and the application fee
was directed to be refunded to the applicants in terms of the statutory
provisions of Rule 10(1) of the Passports Rules, 1980. It is also stated
thereunder that the Passport Officer, Surat has adopted a wrong practice
by imposing a pecuniary penalty on incomplete applications as there is
no such provision existing in the Passports Act, 1967.
6. We have heard learned counsel for the petitioners and the
learned Central Government Counsel and perused the pleadings and the
documents on record.
7. The subject issue revolves around Sections 3, 5, 6 and 10 read
with Section 12 of the Passports Act, 1967. They read thus:
“3. Passport or travel document for departure from
India.- No person shall depart from, or attempt to depart from

India, unless he holds in this behalf a valid passport or travel
document.
Explanation.- For the purposes of this section,-
(a) "passport" includes a passport which having been
issued by or under the authority of the Government of a foreign
country satisfies the conditions prescribed under the Passport
(Entry into India) Act, 1920 (34 of 1920) in respect of the class
of passports to which it belongs;
(b) "travel document" includes a travel document which
having been issued by or under the authority of the
Government of a foreign country satisfies the conditions
prescribed.
5. Applications for passports, travel documents, etc.,
and orders thereon.- (1) An application for the issue of a
passport under this Act for visiting such foreign country or
countries (not being a named foreign country) as may be
specified in the application may be made to the passport
authority and shall be accompanied by Such fee as may be
prescribed to meet the expenses incurred on special security
paper, printing, lamination and other connected miscellaneous
services in issuing passports and other travel documents.
Explanation.- In this section, "named foreign country" means
such foreign country as the Central Government may, by rules
made under this Act, specify in this behalf.
(1-A) An application for the issue of-
(i) a passport under this Act for visiting a named foreign
country; or
(ii) a travel document under this Act, for visiting such
foreign country or countries (including a named foreign country)

as may be specified in the application or for an endorsement on
the passport or travel document referred to in this section, may
be made to the passport authority and shall be accompanied by
such fee (if any) not exceeding rupees fifty, as may be
prescribed.
(1-B) Every application under this section shall be in such
form and contain such particulars as may be prescribed.
(2) On receipt of an application under this section, the
passport authority, after making such inquiry, if any, as it may
consider necessary, shall, subject to the other provisions of this
Act, by order in writing,-
(a) issue the passport or travel documents with
endorsement, or, as the case may be, make on the passport or
travel document the endorsement, in respect of the foreign
country or countries specified in the application; or
(b) issue the passport or travel document with endorsement,
or, as the case may be, make on the passport or travel
document the endorsement, in respect of one or more of the
foreign countries specified in the application and refuse to make
an endorsement in respect of the other country or countries; or
(c) refuse to issue the passport or travel document or, as the
case may be, refuse to make on the passport or travel document
any endorsement.
(3) Where the passport authority makes an order under
clause (b) or clause (c) of sub-section (2) on the application of
any person, it shall record in writing a brief statement of its
reasons for making such order and furnish to that person 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 copy.
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 foreign
country under clause (b) or clause (c) of sub-section (2) of
section 5 on any one or more of the following grounds, and 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.
10. Variation, impounding and revocation of passports
and travel documents.-
(1) The passport authority may, having regard to the
provisions of sub-section (1) of section 6 or any notification
under section 19, vary or cancel the endorsements on a
passport or travel document or may, with the previous approval
of the Central Government, vary or cancel the conditions (other

than the prescribed conditions) subject to which a passport or
travel document has been issued and may, for that purpose,
require the holder of a passport or 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 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.
(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 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.
12. Offences and penalties.- (1) Whoever-
(a) contravenes the provisions of section 3; or
(b) knowingly furnishes any false information or suppresses
any material information with a view to obtaining a passport or
travel document under this Act or without lawful authority alters

or attempts to alter or causes to alter the entries made in a
passport or travel document; or
(c) fails to produce for inspection his passport or travel
document (whether issued under this Act or not) when called
upon to do so by the prescribed authority; or
(d) knowingly uses a passport or travel document issued to
another person; or
(e) knowingly allows another person to use a passport or
travel document issued to him,
shall be punishable with imprisonment for a term which may
extend to two years or with fine which may extend to five
thousand rupees or with both.
(1-A) Whoever, not being a citizen of India,-
(a) makes an application for a passport or obtains a
passport by suppressing information about in nationality, or
(b) holds a forged passport or any travel document,
shall be punishable with imprisonment for a term which shall
not be less than one year but may extend to five years and with
fine which shall not be less than ten thousand rupees but which
may extend to fifty thousand rupees or with both.
(2) Whoever abets any offence punishable under subsection
(1) or sub-section (1A) shall, if the act abetted is
committed in consequence of the abetment, be punishable with
the punishment provided in that sub-section for that offence.
(3) Whoever contravenes any condition of a passport or
travel document or any provision of this Act or any rule made
thereunder for which no punishment is provided elsewhere in
this Act shall be punishable with imprisonment for a term which
may extend to three months or with fine which may extend to
five hundred rupees or with both.

(4) Whoever, having been convicted of an offence under
this Act, is again convicted of an offence under this Act shall be
punishable with double the penalty provided for the latter
offence.”
8. The contention put forth by the learned counsel for the
petitioners is that even if there is any violation of the provisions of the
Act 1967 and Rules thereto, there is no power vested with any of the
passport authorities under the Act 1967, to impose penalty. On the other
hand, learned Central Government Counsel submitted that it is not
possible to launch prosecution in each and every case, since the Regional
Passport Authorities would have to handle thousands and thousands of
passport applications and launching prosecution is a time consuming
process and therefore, if the officers are not permitted to impose penalty
in contemplation of Section 12 of the Act 1967, the passport authority
would find it difficult to maintain the object and intend of the parliament
to regulate the issuance of passport and travel documents.
9. Taking into account the rival submissions made across the Bar,
our endeavour is to find out the legal purport of Section 12 of the Act
1967 extracted above. On a reading of Section 12(1), it is clear that
offences and penalties are prescribed for contravention of the provisions of Section 3 or for the reasons enumerated thereunder, which shall be punishable with imprisonment for a term prescribed thereunder or with fine prescribed thereunder or with both. Therefore, it is evident from the
provisions that in the event of any person found guilty, he is liable to be
punished with an imprisonment for a term prescribed thereunder or in
the alternative to impose fine prescribed thereunder or with both.
Therefore, on a deeper analysis of the provision, it is amply clear that the
passport issuing authority or any of the authorities under the Act, 1967
are given powers under the Passports Act, 1967 or Rules framed
thereunder, to initiate prosecution for the contravention of the provisions
of the Passports Act, 1967. A reading of the provision further shows
that, the power to punish with imprisonment is conferred only to the
Magistrates as provided under the Code of Criminal Procedure. Fine as
an alternative to imprisonment on finding guilty, can only be imposed by
the competent Magistrate who adjudicates the issue on the basis of any
complaint filed by the passport authority.
10. Section 13(1) of the Act 1967 deals with power to arrest,
which stipulates that any officer of customs empowered by a general or
special order of the Central Government in this behalf and any officer of
police or emigration officer not below the rank of a Sub-Inspector may
arrest, without warrant, any person against whom a reasonable suspicion
exists that he has committed any offence punishable under Section 12 and shall, as soon as may be, inform him of the grounds of such arrest.
Sub-section (2) makes it imperative that every officer making an arrest
under this Section shall, without unnecessary delay, take or send the
person arrested before a Magistrate having jurisdiction in the case or to
the officer in charge of the nearest police station and thereupon the
provisions of Section 57 of the Code of Criminal Procedure, 1973 shall so
far as may apply in the case of any such arrest. Therefore, it is so
apparent that the power conferred on the passport authority is limited to
the extent as specified above. In this regard, Section 26 of the Code of
Criminal Procedure dealing with power of courts, and courts by which
offences are triable is relevant, which reads thus:
“26. Courts by which offences are triable
Subject to the other provisions of this Code,-
(a) any offence under the Indian Penal Code (45 of 1860),
may be tried by-
(i) the High Court, or
(ii) the Court of Session, or
(iii) any other Court by which such offence is shown in the First
Schedule to be triable;
PROVIDED that any offence under section 376, section 376A, section
376AB, section 376B, section 376C, section 376D, section 376DA,
section 376DB or section 376E of the Indian Penal Code (45 of 1860),
shall be tried as far as practicable by a Court presided over by a
woman;

(b) any offence under any other law shall, when any Court is mentioned
in this behalf in such law, be tried by such Court and when no court
is so mentioned, may be tried by-
(i) the High Court, or
(ii) any other Court by which such offence is shown in the First
Schedule to be triable.”
According to us, nothing more is required to arrive at the conclusion that
the passport authority is not vested with any powers to impose
punishment under Section 12 of the Act 1967. In fact, the Government
of India has understood the legal position and accordingly Ext.P11
memorandum dated 16.12.2015 has been issued to all the passport
issuing authorities in India informing that the Government of India
intends to amend the Act, 1967, in the wake of the judgment of the Delhi
High Court in W.P.(C) No.5818 of 2011 dated 12.4.2013. The Ministry of
External Affairs has, therefore, incorporated the following in the said
communication:
“2. The Order of the Hon'ble High Court has been
examined in the Ministry in consultation with the Ministry of Law
& Justice. It is of the considered view of the Department of
Legal Affairs not to file an appeal against the impugned order
dated 12/04/2013 but to amend the Passports Act, 1967 to the
extent to incorporate the provision as regards institution of
adjudicating authority in the Act to exercise the power of
imposing the pecuniary penalty on the violators of the Passports

Act, 1967 so that the power to levy as well as collect the
pecuniary penalty in terms of Section 12 of the Act could be
exercised by the passport authority itself.”
Therefore, it is unequivocal that the passport authority is not vested with
any powers under Section 12 to impose any fine on any person who
commits any offence in contemplation of Section 12 of the Act 1967.
11. Yet another argument advanced by the learned Central
Government Counsel is that, a public interest litigation is not
maintainable under law. However, on consideration of the facts and law,
we are convinced that the authorities under the Act, 1967 are not vested
with any power under Section 12 of the Act 1967, to impose any fine and
it is a matter affecting the public. That apart, imposition of fine so made,
which is an undisputed fact, without authority of law is a clear
interference with the protection of life and personal liberty guaranteed
under Article 21 of the Constitution of India, since it prohibits deprivation
of life and personal liberty, except in accordance with the procedure
established by law. Thinking, and assimilating the situation so, exercise
of power is nothing short of transgression of the fundamental right
guaranteed under Article 21 of the Constitution of India. There is a
substantial element of public interest involved in the matter and
therefore, instant public interest litigation is maintainable.

12. Therefore, we have no doubt that the petitioners are entitled
to get relief Nos.1 and 2 sought for in the writ petition, which are as
follows:
“i. To issue any appropriate writ, order to revoke the penalty list
framed u/s 12(1)(b) prescribed in schedule III of Passport Rules,
1980 as well as Office Memorandums regarding table of penalties
framed u/s 12(1A) vide No.VI/401/1/4/2009 dated 24/03/2009,
VI/401/1/4/2009 dated 3/5/2010 and VI/401/1/4/2009 dated
19/08/2010, so that the power of a Passport Authority will be
limited only to issue passport or refuse/reject or impound/revoke
or restrict the validity of passport as stipulated in the Passports
Act, 1967.
ii. To issue any appropriate writ, or Order or a direction to
respondents to inform all Passport Authorities to stop the practice
of imposing pecuniary penalty on applicants.”
Accordingly, we order them.
13. However, relief Nos. 3 and 4 sought for by the petitioners are
in respect to the refund of pecuniary penalty unlawfully imposed under
Section 12(1)(b) of the Act 1967 and collected from the passport
applicants, and therefore, we are of the view that the petitioners are not
entitled to get any such relief. If at all, there is any grievance on the
basis of fine imposed, it could only be a personal grievance of the
persons who are imposed with fine by the authority. Therefore, the writ

petition is allowed in part.
Pending interlocutory applications, if any, shall stand closed.



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