vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.1120 OF 2008 WRIT PETITION NO.1120 OF 2008 WRIT PETITION NO.1120 OF 2008 Mangesh T. Sawant ... Petitioner V/s. State of Maharashtra & Ors. ... Respondents Mr.A.H.H. Ponda i/b R.N. Shetty for Petitioner Mr.D.P. Adsule, APP, for Respondent-State CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J. MHATRE, J. MHATRE, J. DATED: JUNE 9, 2008 JUNE 9, 2008 JUNE 9, 2008 P.C.: P.C.: P.C.: . The writ petition has been filed for return of the passport to the petitioner which was seized by the Economic Offences Wing during the course of investigation. The learned counsel for the petitioner has pointed out the judgment of the Supreme Court in the case of Suresh Nanda v/s. CBI in Criminal Appeal No.179 Criminal Appeal No.179 Criminal Appeal No.179 of 2008 of 2008 of 2008 wherein the Supreme Court by its decision dated 24.1.2008 has observed that seizure of the passport and impounding of the same are two different issues. The police may seize the passport at a particular moment but if the passport is retained for some period of time then the retention would amount to impounding of the property or the document. The Supreme Court has observed as under: 13. 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 : 2 : impounded for one of the reasons mentioned in 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. Binap ani Dei (Air 1967 SC 1926). 14. 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). 2. The learned APP has submitted that if the passport is returned, the petitioner would remain absent in the Court and then the police would not be able to file the chargesheet. He submits that the petitioner is wanting to go abroad on a pleasure trip and not for any specific purpose and, therefore, the prayer in the petition need not be granted. 3. The Supreme Court in Suresh Nanda (supra) has clearly held that seizure of the passport made by the police cannot lead to impounding of the same by retaining the passport with them for a long period of time. It is only the passport authority which has the power to impound the passport of a citizen. The passport in the present case was seized when the investigation commenced i.e. on 31.1.2008. The : 3 : petitioner has thereafter been released on bail. However, there is no direction passed by the trial Court restricting the travel of the petitioner anywhere in India or abroad. In these circumstances, in my opinion, the retention of the passport by the police is contrary to the judgment of the Supreme Court in Suresh Nanda’s case (supra). The petitioner is therefore right in contending that he should be returned the passport which is now retained by the police. 4. In these circumstances, in my opinion, the following order would meet the ends of justice: i) The police shall return his passport to the petitioner within 48 hours. ii) The petitioner shall furnish an undertaking before the trial Court that he will attend the concerned police station at 10 am on 7.7.2008. iii) The undertaking shall be filed before the passport is handed over the petitioner. 5. The petition is disposed of accordingly. 6. Parties to act on an authenticated copy of this order.