1 wp.1829-2011 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1829 OF 2011 Amirali Hasanali Gilani ...Petitioner. Vs. Union of India & Ors. ...Respondents. ----- Mr. Sujay Kantawala i/b Mr. Yogesh M. Rohira, for the Petitioner. Mr. Kiran J. Kanpile, for respondent nos.1 and 2. Mrs. P.P. Shinde, APP for the State. ---- CORAM: B. H. MARLAPALLE & U.D. SALVI, JJ. JULY 22, 2011. P.C.: 1. Heard Mr. Kantawala, the learned counsel for the petitioner and Mr. Kanpile, the learned counsel for respondent nos.1 and 2. Mrs. Shinde, the learned APP appears for the State of Maharashtra. 2. Limited grievance raised in this Petition filed under Article 226 of the Constitution of India, the petitioner prays for directions to respondent no.2 to issue to the petitioner a passport, even for a temporary period, in response to his 2 wp.1829-2011 application dated 3.12.2008. 3. The petitioner is a citizen of India. He studied up to IXth standard at Mumbai. He is engaged in import export business and he states that he has to visit U.A.E. And Africa, for business very soon. He has relied upon the directions given by the High Court of Delhi in the case of Moiz Ahmad Khan (WP (Cri) no. 1913/2006) and order passed by this court on 15.7.2008 in the case of Firoz Gulam Hussain Merchant Vs. Union of India & Ors. (Writ Petition no.7677 of 2006). 4. There is no dispute that on 12.6.1987, the petitioner was issued a passport bearing no. C493274 and it was valid up to 11.6.1992. In the said passport issued by respondent no.2 his date of birth was shown as 30.5.1967. In lieu of this passport, he came to be issued a fresh passport on 28.4.1999 bearing no. A7819141 and it was valid for a period of ten years. In this passport also his date of birth was shown as 30.5.1967. The petitioner claims that the passport no. A-7819141 was misplaced in sometimes in the year 2000, and therefore, his agent submitted an application for fresh passport and in that application his date of birth was shown as 30.3.1969. On 6.11.2000, his application was allowed and he was issued a new passport bearing no. B2916712, by respondent no.2. In the meanwhile, the petitioner claims that his passport bearing no.A7819141 was traced. However, he lost the passport bearing no.B2916712 and a police complaint was lodged to that 3 wp.1829-2011 effect on 19.2.2002. He submitted an application for a passport in lieu of the passport bearing no. B2916712 and the same was allowed on 10.6.2004 by issuance of a passport bearing no. E9451993, by respondent no.2. As shown in passport no.B2916712, in the new passport bearing no.E9451993 also the same date of the petitioner was mentioned as 30.3.1969 5. The petitioner submitted an application on 8.12.2008 for a passport in lieu of passport bearing no. A7819141 issued to him on 28.4.1999. He also claims that he visited the passport office and informed about having two passports. He surrendered both the passports i.e. passport nos.A7819141 and E9451993. However, passport no.7819141 was returned after cancellation sometimes in December 2008. While this application for new passport was pending, he was issued a revocation notice on 12.1.2009 regarding both the the passports. This notice was issued under Section 10(3)(b) of the Passport Act, 1967 so as to take an action for penalisation under Section 12(1)(b) of the said Act. This notice has not progressed further, in as much as no order of penalty has been passed under Section 12(1)(b) of the Passport Act, and if such an order is passed, admittedly, the petitioner has a remedy of an appeal under the said Act. 6. On 20.4.2009, he was informed that the certificate showing his date 4 wp.1829-2011 of birth as 30.3.1969 was fake, and therefore, an action under Section 12(1)(b) of the Passport Act was proposed against him. He was given personal hearing on 18.6.2009, and he filed a reply on 1.7.2009. He pointed out that the passport bearing no.E9451993 was already surrendered by him and had also shown his willingness to pay the penalty or deposit the security amount and requested to clear his fresh application for issuance of new passport. 7. On 4.7.2009, he had obtained a birth certificate from the Municipal Corporation of Gr. Mumbai, and submitted it to respondent no.2 on 8.7.2009. This certificate shows the petitioner’s birth date as 30.5.1967 which was the date of birth shown in two earlier passports issued on 12.6.1987 and 28.4.1999. 8. It appears that FIR no.357 of 2010 has already been registered against the petitioner on or about 31.12.2010 with the Worli Police Station under Section 465, 467, 468, 471 and 420 of IPC. The investigation is in progress. Mrs. Shinde, the learned APP has placed before us a copy of the letter dated 11.7.2011 which she has received from the Senior Inspector of Police at Worli Police station. It is also admitted that after registration of FIR no.357 of 2010 against the petitioner, the petitioner had applied for anticipatory bail before the Sessions Court in anticipatory bail application no.167 of 2011, and it was rejected on 6.6.2011. 5 wp.1829-2011 9. In these circumstances, the short question is whether the petitioner’s pending application is required to be decided by respondent no.2 and issue a passport to the petitioner by accepting a reasonable security amount in case the petitioner is finally convicted or he is held to be guilty of an offence punishable under Section 12(1)(b) of the Passport Act. Section 10(3)(b) of the Passport Act, 1967 states that- if the passport or travel document was obtained by 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, the passport authority may impound or revoke a passport or travel document. 10. As per this provision, the passport bearing no.B2916712 or the subsequent passport issued in its place i.e. passport bearing no.E9451993 could be impounded or revoked. The petitioner has already surrendered both the passports, and thus, as of now, he has no valid passport issued by respondent no.2 or any other passport office in India. It is also clear from the record that at no point of time there was any allegation of wrong identity against the petitioner and the only allegation was that he furnished his date of birth as 30.5.1967 at the time of issuance of first and second passport and when he obtained a third passport he declared his birth date as 30.3.1969, and the said birth date was shown at the time of issuance of the fourth passport issued on 10.6.2004. In the meanwhile, he has already obtained a birth certificate from the Municipal Corporation of Gr. Mumbai and as per the said certificate his birth date is 30.5.1967. 6 wp.1829-2011 11. In the case of Firoz Gulam Hussain Merchant (Supra), a Division Bench of this court also dealt with the case of similar nature wherein the petitioner claimed he had one passport issued from Hyderabad office on 21.11.1988 and it was renewed on 15.4.1998 with additional booklet issued on 28.2.2005. He obtained another passport on 28.2.2005 which was replaced on 13.7.1998. He had obtained the third passport on 16.2.1999 for going to the Arab countries. He claimed that it was a bonafide mistake on his part and he could not have obtained the third passport. The passport authority had issued an order under Section 10(3) (b) of the Passport Act and the subsequent two passports were revoked but the first passport was allowed to be retained. This court by way of interim order dated 11.1.2007 directed the petitioner to deposit an amount of Rs.10 lacs with the registry of this court and another sum of Rs.10 lacs to be deposited with respondent no.2, while allowing him to travel on the basis of the first passport. The said Petition was disposed off on 15.7.2008 directing to transfer the amount of Rs. 10 lacs deposited with the registry of this court to respondent no.2 and respondent no.2 thus would continue to hold an amount of Rs.20 lacs for a period of one year, and if no incidence of violation of any law in regard to the passport was reported, the authorities shall refund the amount after deducting Rs.10,000/- by way of penalty. It was further cleared that in case of any violation of law in relation to the passport be reported, the authorities shall be entitled to take action in accordance 7 wp.1829-2011 with law and also make orders in relation to the amount deposited. 12. Mr. Kantawala, the learned counsel for the petitioner referred to the scheme of the Passport Act, and submitted that there is no provision under the said Act empowering the passport authority to dismiss the petitioner’s application upon either holding that an investigation for an offence punishable under the IPC is pending or a trial is pending before the competent court for such offence. He also submitted event if the petitioner is finally convicted in the case arising from FIR no.357 of 2010, there is no provision which will empower respondent no.2 to reject the pending application for the passport. He, therefore, urged that the petitioner may be put on appropriate terms including deposit of certain amount so as to ensure that he would not disappear and the penalty amount, if convicted, be secured. He also prays that the passport could be issued for a temporary period of one year and depending on the progress in the case initiated against the petitioner pr his antecedents, the passport could be further renewed. 13. The learned counsel for respondent nos.1 and 2 could not show us any provision of the Passport Act, 1967 or any Rules framed under the said Act by the government of India. Section 6 of the Passport Act sets out the grounds on which the passport could be refused, and the petitioner’s case does not fall in any of these grounds. If there is a criminal trial pending against the petitioner before 8 wp.1829-2011 the competent court, he would be required to take prior permission from the said court and as of now FIR no.357 of 2010 is under investigation. 14. Hence, we allow this Petition, and direct respondent no.2 to issue a fresh passport to the petitioner in response to his application dated 3.12.2008, and (on the basis that his birth date is 30.5.1967) for a period of one year, subject to the following conditions: (a) Petitioner shall deposit an amount of Rs.10 lacs with the office of respondent no.2 within a period of two weeks by way of security for a period of one year. (b) If no incidence of breach of any provision of the Passport Act, 1967 or any other law is reported against the petitioner during this period of one year, the said amount of Rs.10 lacs will be refunded after deducting amount of penalty, if any, imposed against him as a result of the present proceedings pending. (c) If any breach of the Passport Act, 1967 or any other law is reported against the petitioner, the authorities concerned will be entitled to take appropriate action against the petitioner including forfeiture of the deposited amount. 9 wp.1829-2011 (d) The petitioner will also present himself before the Investigating Officer as and when called. 15. The authorities concerned to issue the passport to the petitioner within three weeks. 16. The Petition is disposed in terms of the above directions. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)