IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 498 OF 2008 Sandeep Shah...... ...... ......Petitioner V/s State of Maharashtra .... ...... .....Respondent. Mr.Girish Kulkarni i/by Mr.Vinit Jain, Adv. For the petitioner. Mr.Mandar Goswami, Adv. For CBI-respondent No.1. Mr.J.P.Yagnik, APP For the State. CORAM: A.P.DESHPANDE, J. 14/3/08 PC: Leave to amend. Amendment to be carried out forthwith. By consent of the parties application is taken up for final hearing. Heard learned counsel for the applicant and the Special Counsel appearing for respondent No.1-Union of India. 2. The applicant is non-resident Indian settled in United Kingdom. Being a citizen of United Kingdom the applicant is possessed of passport issued by the United Kingdom of Great Britain and Northern Island. The passport was issued on 17.10.03 and would expire on 17.10.2013. According to the applicant he is carrying on business and is chairman and managing director of the company by name Elbee Services, a courier company. According to the applicant his family consisting of his wife and children are 1 residents of Mumbai. Though the applicant is British national, record reveals that he owns property in Mumbai. 3. CBI registered case against the applicant for the commission of offence punishable under section 406, 420 read with section 34 of IPC and section 13(2) and 13(1)(c) and (d) of the Prevention of Corruption Act. The case has been registered on 21.6.05. The premises of the applicant was searched by respondent on 22.7.05 and applicant' s passport came to be seized under seizure memo in exercise of powers under section 102 of Criminal Procedure Code. Since the date of seizure of passport the passport is in possession of CBI. It is relevant to note that the passport was released to the applicant on three occasions subject to certain conditions as the applicant had to travel abroad. The applicant had in compliance of the conditions imposed availed of the passport and has returned the same as per the conditions imposed to the CBI on his return to India. By the present application the applicant is contending that every time when he has to travel he has to make application before the Court and subject to certain conditions the passport is released. Two fold contentions are made by the learned counsel for the applicant viz. (1) that the respondent-CBI has no authority, power or jurisdiction to impound the passport in exercise of powers under Criminal Procedure Code and thus the seizure of the passport itself is illegal being without jurisdiction and (2) The passport Act of 1997 is complete code in itself regulating the issuance, impound and cancellation of passport. The passport act being special statute would prevail over the provisions of Criminal Procedure Code. The 2 submission is that it is only passport authority acting under section 10 of the act, which can impound or cause to be impounded or revoke the passport or travel document and thus the retention of passport by CBI which in fact impounds the passport is without any authority in law. Both the issues raised in the present application are no longer res integra and are answered by by Apex Court in the case of Suresh Nanda v/s CBI (Criminal Appeal No.179/08 arising out of Special Leave Petition (Criminal) No.3408/07). The Supreme Court has categorically held that neither the investigating officer nor the Court by exercising power under section 104 of Criminal Procedure Code impound the passport. The issue stands concluded in paras 15 and 16 of the said judgment which read as under : “15. 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 Passports 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 3 under Section 104 Cr.P.C. though it can impound any other document or thing. 16. For the aforesaid reasons, we set aside the impugned order of the High Court and direct the respondent to hand over the passport to the appellant within a week from today. However, it shall be open to the respondent to approach the Passport Authorities under Section 10 or the authorities under section 10A of the Act for impounding the passport of the appellant in accordance with law.” 5. In the present case I am informed that as yet the applicant is not even arrested. Learned counsel appearing for respondent No.1 submits that investigation is still going on. In the result the impugned seizure of passport vide seizure memo dated 22.7.05 is quashed and set aside and respondent No.1 is directed to return the passport to the applicant forthwith. 6. the applicant shall intimate to respondent No.1 his itinerary as and when he leaves India for abroad and shall also intimate his schedule as and when he returns back to India. Application stands disposed of. 14.3.08 4