IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 02.11.2010 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.No.1062 of 2010 Veenita Gupta .. Petitioner/Petitioner/A2 Vs State Rep By Deputy Superintendent of Police Central Bureau of Investigation Anti Corruption Branch Haddows Road Chennai – 600 006 .. Respondent/Respondent/ Complainant PRAYER: Criminal Revision Case filed under section 397&401 of Criminal Procedure Code praying to call for the records and set aside the order dated 30.09.2010 passed against the petitioner/accused 2 in Crl.M.P.No.2881 of 2010 in C.C.No.34 of 2008 on the file of the Learned Principal Special Judge for CBI Cases, Chennai and allow the Criminal Revision Case and thereby direct the respondent to return the passport of the petitioner and passports of her minor children in C.C.No.34 of 2008. For Petitioner : Mr.V.S.Venkatesh For Respondent : Mr.N.Chandrasekaran Spl.Public Prosecutor for CBI Cases ORDER The present revision case is directed against the order of the learned Principal Special Judge for CBI Cases, Chennai dated 30.09.2010 made in Crl.M.P.No.2881 of 2010 in C.C.No.34 of 2008. 2. The said petition had been filed before the Court below seeking return of the passport of the petitioner, who figures as A2 in the above said Calendar case and that of her minor children by name Miss Gupta Ajaykumar Vishakha and Miss. Gupta Ajaykumar Saloni bearing passport Nos. F0539156, F0539205 and F0539035. The learned trial Judge dismissed the said petition by the impugned order dated 30.09.2010. The same is now challenged by way of the present criminal revision case. https://hcservices.ecourts.gov.in/hcservices/ 3. The submissions made by Mr.V.S.Venkatesh, learned counsel for the petitioner and Mr.N.Chandrasekaran, learned Special Public Prosecutor for CBI Cases representing the respondent were heard. The documents were also perused. 4.It is the contention of the learned counsel for the petitioner that though the police have the power to seize any document including passport, the Passports Act being a special enactment, its provisions relating to impounding of passport will prevail over the provisions found in the general law, namely criminal procedure code dealing with seizure and impounding of documents; that the police after seizing the passports of the petitioner and her daughters were not empowered to impound them either under Section 102(1) Cr.P.C or under Section 104 Cr.P.C; that if at all the police thought it fit to have the documents impounded, the same ought to have been referred to the authorities under the Passports Act ,who shall decide the question regarding impounding of the passport, after giving an opportunity of being heard and that since no such procedure had been adopted in this case, the respondent (CBI) cannot oppose the prayer of the petitioner for the return of the passports of the petitioner and her minor daughters. It is the further contention of the learned counsel for the petitioner that even the Court does not have the power to impound a passport and the power of the Court under Section 104 Cr.P.C is confined to any document other than passport, impounding of which is dealt with by the special enactment. 5. The learned Special Public Prosecutor would contend that the passports of the petitioner and her minor daughters are essential for the proof of the prosecution case, since the entries found therein regarding their visit to foreign countries during a particular period are relied on by the prosecution to prove the charges against the accused in the above said calendar case and that therefore, there is nothing wrong in the order of the trial Court dismissing the petition filed by the petitioner, seeking the return of the passports of the petitioner and her minor daughters. 6. As an answer to the above said contention of the learned Special Public Prosecutor, the learned counsel for the petitioner would submit that whatever be the reason, the police or the Court cannot retain the passport, which act would amount to impounding the passport and that the passport authorities ought to have been approached for an order impounding the passports, if at all impounding of the passports was felt necessary by the C.B.I or the trial Court. It is the further contention of the learned counsel for the petitioner that the passports of the petitioner and her minor daughters are needed for seeking admissions in the overseas institutions for her minor daughters. https://hcservices.ecourts.gov.in/hcservices/ 7. In support of the contention of the petitioner that neither the C.B.I nor the trial Court does have the power to retain the passport, which will amount to impounding the passport, the learned counsel for the petitioner relied on the judgment of the Hon'ble Supreme Court in Suresh Nanda V. Central Bureau of Investigation reported in (2008) 3 Supreme Court Cases 674. In the said judgment, the Hon'ble Supreme Court considered the scope of the power of the police who seize any property, document or a thing under Section 102 Cr.P.C and the power of the Court under Section 104 Cr.P.C to impound a document or a thing, produced before it. While dealing with the scope of those provisions, the Hon'ble Supreme Court has held that the power of the police under Section 102 Cr.P.C to seize any property or document shall include the power to seize even a passport. But the power to impound a document or thing found in Section 104 Cr.P.C should give way to the corresponding provision found in the Special enactment, namely the Passports Act regarding impounding of passport. The Hon'ble Supreme Court has also brought a difference between seizure and impounding. 8. In paragraph 15 of the judgment, the Hon'ble Supreme Court has observed that a seizure of a document is made at a particular moment when a person or authority takes into his possession some property, which was earlier not in his possession and if the seized property or document is retained for some period of time, then such retention would amount to impounding of the property or document. 9. If the facts of the case are considered in the light of the above said observations of the Hon'ble Supreme Court, the impugned order passed by the trial Court, will no doubt, amount to an order impounding the passports of the petitioner and minor daughters of the petitioner, which could not have been done by the Court below. The relevant observation is found in Paragraph 18 of the said judgment of the Supreme Court and the same is extracted as under:- "18. 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 of a "passport" is provided for in Section 10(3) of the Passports Act. The Passports Act is a special law while 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 Edn. p.133). This principle is expressed in the maxim generalia specialibus non derogant. Hence, impounding of a passport cannot be done by the court https://hcservices.ecourts.gov.in/hcservices/ under Section 104 Cr.P.C though it can impound any other document or thing. " 10. While arriving at the conclusion that the order passed by the learned trial Judge, which is impugned in this criminal revision case amounts to impounding of the passports and the same would not have been legally done, this Court should also take into account, the contention of the learned Special Public Prosecutor that the passports of the petitioner and her two minor daughters are vital documents to be exhibited in the trial in proving the charges against the accused. Whether the retention of the original document for the above said purpose is absolutely necessary is the pertinent questioned to be answered. 11. In this case, some of the entries found in the passports are sought to be used as evidence for the prosecution in proof of the charges levelled against the accused persons. For that purpose, the passports need not be impounded, much against the provisions of the Passports Act dealing with the impounding of passports. Xerox copies or typed copies of the passports can be prepared and the same can be certified by the Court and retained in the case bundle to be used as evidence in the trial. In such an event, the petitioner, who is also figuring as an accused, cannot contend that the copies were not true copies of the passports, that too, without producing the passports to show the dissimilarity of the original and the copy. Therefore, there won't be any impediment for the Court below to return the passports of the petitioner and her two minor daughters after getting the copies of the passports prepared and certified, which could be marked as evidence in the trial. The other course available to the prosecution is to refer the passports to the passport authorities with a request to impound them. For making such a request, it is not necessary to send the passport along with such a requisition. Keeping the passport with the Court below any more will amount to continuous impounding of the passport, which is not permissible. 12. For all the reasons stated above, this Court comes to the conclusion that the order passed by the trial Court is defective and is not in accordance with law and that the same deserves to be set aside. 13. In the result, this criminal revision case is allowed. The order dated 30.09.2010 passed by the learned Principal Special Judge for CBI Cases, Chennai in Crl.M.P.No.2881 of 2010 in C.C.No.34 of 2008 is set aside. It is further directed that the passports of the petitioner and her minor daughters shall be returned to the petitioner on her undertaking to produce the same whenever required https://hcservices.ecourts.gov.in/hcservices/ by the trial Court. Before returning the passports in compliance with the order, the trial Court shall take clean xerox copies or typed copies of the passports, certify them to be true copies and place it along with the records to be used in trial". Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar gpa To 1. The Deputy Superintendent of Police Central Bureau of Investigation Anti Corruption Branch Haddows Road Chennai – 600 006 2.The Principal Special Judge for CBI Cases Chennai 3.The Public Prosecutor Madras High Court + 1 cc to M/s. V.S. Venkatesh, Advocate SR.No.79523 Crl.R.C.No.1062 of 2010 MP(CO) EU 22.10.10 https://hcservices.ecourts.gov.in/hcservices/