W.P.(C) No. 14058 of 2009 Page 1 of 6 * IN THE HIGH COURT OF DELHI AT NEW DELHI 34. + W.P.(C) No. 14058 of 2009 NISIMAN (MINOR) THROUGH: RAJEEV BHARDWAJ ..... Petitioner Through: Mr. Vijay K. Singh, Advocate. versus UNION OF INDIA & ORS. ..... Respondents Through: Ms. Sapna Chauhan, Advocate. CORAM: JUSTICE S. MURALIDHAR 1. Whether reporters of local paper may be allowed to see the order? Yes 2. To be referred to the reporter or not? Yes 3. Whether the order should be referred in the digest? Yes O R D E R % 15.04.2010 1. The Petitioner is a minor aged about 7 years born on 29th July 2002 at the All India Institute of Medical Sciences („AIIMS‟), New Delhi. He applied for issuance of a passport at the Regional Passport Office („RPO‟), Ghaziabad. This was issued to him on 16th February 2002 for five years. The said passport expired on 15th February 2009. In the meanwhile, the Petitioner shifted to Delhi in 2004 and thereafter applied for renewal of the passport to the RPO at New Delhi. The application filled up by his father was accompanied by a birth certificate in which the place of birth was indicated as „AIIMS‟. In the enclosed „personal particulars‟ form the place of birth was indicated as „New Delhi‟. In the enclosed declaration it was stated that the place of birth is „Delhi NCR (Ghaziabad)‟. 2. On 31st March 2009, a letter was written to the Petitioner through his father stating that “your place of birth is not clear, please clarify by providing details such as Village/Town, District, State and Country.” In response thereto, on 3rd April 2009, the father of the Petitioner replied W.P.(C) No. 14058 of 2009 Page 2 of 6 stating that the place of birth of the Petitioner was „Ghaziabad‟. On 15th April 2009, a letter was again written by the RPO to the Petitioner through his father stating that his place of birth was not clear. 3. According to the Petitioner when his father visited the office of the RPO on 30th April 2009 he was asked to deposit a „balance fee‟ of Rs.1,000. A cash receipt for the said „balance fee‟ for the said amount was issued to him. A copy of the receipt has been enclosed with the petition. 4. On 25th May 2009, the Petitioner‟s father wrote to the RPO stating that while the renewed passport was received by him, the reasons for charging the balance fee of Rs.1,000/- were not indicated. In response to the said application, the Petitioner was informed by a letter dated 23rd September 2009 that the said amount had been recovered as penalty for furnishing false information. 5. The main contention of the Petitioner, which has been reiterated by his counsel at the time of arguments, is that no such penalty could have been imposed under Section 12 of the Passports Act, 1967 („Act‟) suo moto and that too without any show cause notice. Further, under Section 15 a prosecution in respect of any offence under Section 12 cannot be instituted without the previous sanction of the Central Government. 6. In response to the notice it is submitted by the RPO that in the letter dated 3rd April 2009 the Petitioner‟s father maintained that the Petitioner‟s place of birth was Ghaziabad which was contrary to the place of birth W.P.(C) No. 14058 of 2009 Page 3 of 6 indicated in the birth certificate. Since the information provided was admittedly false, the imposition of the penalty was justified. According to learned counsel for the Respondents when the Petitioner‟s father visited the RPO on 30th April 2009, he was shown the “Passport Information Booklet” attached to the Passport Application Form 1 containing the details of the penalty imposed. It is further maintained in para 7 of the reply that “since the Petitioner was told in clear and unambiguous terms that he was being charged Rs.1,000/- as penalty, for suppression of facts and on 30th April 2009 itself and the penalty clause was also shown, in the Information Booklet,” the action of the Respondents was justified. As regards the powers of the RPO to impose penalty, reliance is placed on a Gazette Notification dated 23rd December 2006 empowering the Passport Issuing Authority (Superintendent and above) to impose the penalty. 7. This Court has considered the above submissions. Section 12(1)(b) of the Passports Act which is relevant for the present case reads as under: “12. Offences and penalties.-(1) Whoever- ….. (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 …. 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.” W.P.(C) No. 14058 of 2009 Page 4 of 6 8. The facts reveal that there was no deliberate attempt by the Petitioner‟s father to mislead the passport authorities. What seems to have been missed completely is that under Section 12(1)(b) the imposition of penalty which may extend to Rs.5,000, is consequent upon a person knowingly furnishing false information. There is an element of mens rea that is a pre-requisite for even prima facie attracting the offence under Section 12(1)(b). It does not appear to this Court that the Petitioner‟s father knowingly furnished any false information. In several of the documents attached to the application form for renewal of the passport, including the birth certificate, it is clearly mentioned that the place of birth was „AIIMS‟ and in some other places „New Delhi‟. The confusion appears to have been created by the Respondents themselves by writing a further letter dated 31st March 2009 to which, in the reply dated 3rd April 2009, the Petitioner‟s father indicated „Ghaziabad‟ as the place of birth. It is not in dispute that the Petitioner‟s family at the time of his birth and till 2004 was residing at Ghaziabad. There could have been some genuine confusion in the mind of the Petitioner‟s father when despite furnishing the birth certificate which showed that the Petitioner was born at AIIMS, New Delhi, a further clarification was sought by the RPO as to the Petitioner‟s place of birth. 9. In any event, ultimately the lapse, if any, on the part of the Petitioner‟s father was in fact not attributable to the Petitioner who is a 7 year old child. It is too much to expect that a 7 year old child will knowingly furnish false information which is not going to help him in any way. The birth certificate is a clear indicator of where he was born. Viewed from any W.P.(C) No. 14058 of 2009 Page 5 of 6 angle, this Court is satisfied that the essential ingredients of the offence under Section 12 (1) (b) of the Act are absent and therefore no penalty could be imposed in the instant case. 10. While learned counsel for the Petitioner has an arguable point that for an offence under Section 12(1)(b) prosecution would have to be initiated in a court after seeking sanction under Section 15, the fact remains that no order was passed by the RPO informing the Petitioner‟s father that a penalty of Rs.1,000/- was being imposed for furnishing false information. 11. Absent such an order, it is inconceivable how, under the pretext of collecting the “balance fee,” a sum of Rs.1,000/- could have been collected and later on appropriated by the RPO towards “penalty”. A written order imposing a penalty under Section 12 of the Act is an imperative. Further, before passing such order which obviously has adverse civil consequences for the person on whom such penalty is imposed, a show cause notice and an opportunity of explaining must be granted. Admittedly, in the present case no such show cause notice was issued, no opportunity given and worse still no order passed formally imposing any penalty. The procedure adopted by the RPO is wholly unknown to law. 12. This Court has, therefore, no hesitation in quashing the decision of the Respondents imposing a penalty of Rs.1,000/- on the Petitioner in the instant case. The petition is accordingly allowed. The Respondent No.2 RPO will refund to the Petitioner the sum of Rs. 1,000/- within a period of 10 days from today together with costs of Rs. 3,000/-. The proof of W.P.(C) No. 14058 of 2009 Page 6 of 6 payment of refund of the penalty and costs be placed on the file of this Court within a week thereafter. 13. The writ petition is accordingly allowed in the above terms. 14. The Passport Office is directed to devise a proper procedure so that no penalty is levied and collected without following a procedure that is consistent with the requirements of natural justice. A certified copy of this order be sent to the Regional Passport Officer, New Delhi forthwith. S. MURALIDHAR, J. APRIL 15, 2010 dn