CIVIL WRIT PETITION NO. 14384 OF 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: July 07, 2009. Parties Name Narinder Kaur ...PETITIONER VERSUS The Union of India and others ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE JASBIR SINGH PRESENT: Mr. H.S. Bhullar, Advocate, for the petitioner. Mr. S.K.Sharma, Standing Counsel, Union of India. Mr. Anil Sharma, Addl. A.G., Punjab, JASBIR SINGH, J. (oral) ORDER: Petitioner, by filing this writ petition under Articles 226/227 of the Constitution of India, has prayed that a writ of mandamus be issued directing the respondents No. 1 and 2 to issue her a passport (travel document). As per facts, the petitioner moved an application to respondent No. 2 for issuance of a passport on April 26, 2007. When she failed to get any response, she issued a letter through his counsel to respondent No. 2 and Senior Superintendent of Police with a request that travel documents be issued in her favour. In response to her letter, she received a communication dated January 29, 2008, from respondent No. 2 stating that CIVIL WRIT PETITION NO. 14384 OF 2008 -2- passport could not be issued to her in view of adverse police verification report and her case has been referred to the Ministry and decision shall be conveyed on receipt of reply. She again sent letters for supply of a passport on April 16, 2008 (Annexure P-3) and May 1, 2008 (Annexure P-4). In response to her letters, she received a communication dated May 21, 2008 (Annexure P-5) from respondent No. 2, stating that her case has been referred to Senior Superintendent of Police, Fatehgarh Sahib, for police verification. After waiting for some time, she filed this writ petition. Petitioner has stated that she is 65 years of age and is a permanent resident of village Hawara Kalan. Her husband died in 1991. She owns land and a residential house in that village. She also remained Sarpanch of the village Gram Panchayat. Her son, namely, Avtar Singh is residing in America. In order to meet her son and other family members, petitioner needs a passport to travel to that country. After notice, reply has been filed on behalf of respondents No. 3 and 4 by way of an affidavit of Kaustubh Sharma, IPS, Senior Superintendent of Police, Fatehgarh Sahib. To deny passport to her, following reasons were given in the reply: “That the contents of Para No. 4 of the petition need no reply, as the same do not pertain to the answering respondents. It is further clarified here that the petitioner is the mother of hard- core extremist Jagtar Singh Hawara , who has since been awarded capital punishment on 31-07-2007 by the court of Sh. R.K.Sondhi, Additional Sessions Judge, Chandigarh, in case/ FIR No. 96 of the year 1995, registered at Police Station North UT Chandigarh, under Sections 302/307/120-B of IPC, read CIVIL WRIT PETITION NO. 14384 OF 2008 -3- with Sections 3 / 4 of the Explosive Act, i.e., Sh. Beant Singh Chief Minister Murder Case. Alleged Jagtar Singh Hawara is also involved in a number of other criminal cases, related to extremist and subversive activities, such as bomb blasts in various States of India and cases have been registered against him. He roped in 96 people in Anti-India Activities. He also managed to escape from Burail Jail by breaking it. In case the petitioner is issued passport for going abroad, she will definitely attract sympathy from the people abroad for her convicted son Jagtar Singh Hawara. Since she belongs to Radical Extremist Group, Babbar Khalsa International, there is strong apprehension that she would indulge in anti-National propaganda and pro-separatist activities, instigate insurgency, sabotage and other criminal activities against security, sovereignty and integrity of the country and on the basis of these facts and circumstance, grant of passport facility to the petitioner was not recommended by the respondent No. 4, in his letter addressed to respondent No. 2” In written-statement filed on behalf of respondents No. 1 and 2, it was stated that, taking note of police verification report, issuance of passport was declined to the petitioner and she was intimated vide letter dated November 10, 2008(Annexure R2/2). On April 15, 2009, this Court observed as under: “Adjourned to 27.05.2009. Meanwhile, Punjab Police is directed to verify the CIVIL WRIT PETITION NO. 14384 OF 2008 -4- objectionable activities, if any, of the petitioner's son (Avtar Singh ) who is reportedly settled in America, as well as the activities, in particular, of the petitioner while staying in India and submit a report to this effect on the adjourned date.” Thereafter on May 27, 2009, following order was passed by this Court: “Affidavit of S.S. Boparai, PPS, Superintendent of Police (Detective), Fatehgarh Sahib on behalf of respondents No. 3 and 4 is taken on record. To come up on 07.07.2009 for arguments. Meanwhile the petitioner, if so advised, may file an affidavit in response to the apprehension expressed by the authorities in para 1 of the aforesaid affidavit.” In response to the order, mentioned above, petitioner has put on record her affidavit today in Court. Counsel for the petitioner Shri H.S. Bhullar has vehemently contended that passport cannot be denied to her on the ground that she is mother of a convict, namely, Jagtar Singh Hawara, who was convicted and sentenced on July 31, 2007, for commission of offences under Sections 302, 307 and 120-B IPC read with Section 3/ 4 of the Explosive Act. The petitioner is a respectable lady. She remained Sarpanch of the village. Her age is more than 65 years and she has no criminal past. In view of this, order declining passport to the petitioner is not justified. He prays that the impugned order be set aside and directions be issued to the respondents to issue passport to the petitioner. Prayer of counsel for the petitioner has vehemently been CIVIL WRIT PETITION NO. 14384 OF 2008 -5- opposed by counsel for the respondents. Both have stated that issuance of passport to the petitioner will be prejudicial to the interest and safety of the country. She is likely to engage, outside India, in activities prejudicial to the security and integrity of the country. Her presence outside India may prejudice friendly relations of the country with any foreign country. They prayed that in view of adverse police verification report, this writ petition be dismissed. Before proceeding further it is necessary to note that nobody can leave the country without getting passport/ travel documents issued under the Passport Act, 1967. Section 5 of the Act lays down the procedure and the conditions in which one can get passport/ travel documents. Section 6 (2) of the Act enumerates the conditions in which passport / travel documents can be refused to an applicant. Relevant provision reads thus: “6. Refusal of passports, travel documents, etc.- (1) xxx xxx (2)Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause © of sub- section (2) of Section 5 on any one or more of the following grounds, and on no other ground, namely:- (a) that the applicant is not a citizen of India; (b)that the applicant may, or is likely to, engage outside India in activities prejudicial to the sovereignty and integrity of India; © that the departure of the applicant from India may, or is likely to be detrimental to the security of India; CIVIL WRIT PETITION NO. 14384 OF 2008 -6- (d)that the presence of the applicant outside India may, or is likely to, prejudice the friendly relations of India with any foreign country; (e)that the applicant has, at any time during the period of five years immediately preceding the date of his application, been convicted by a Court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years; (f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a Criminal Court in India; (g)that a warrant or summons for the appearance, or a warrant for the arrest, of the applicant has been issued by a Court under any law for the time being in force or that an order prohibiting the departure from India of the applicant has been made by any such Court; (h) that the applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such repatriation; (i)that in the opinion of the Central Government the issue of a passport or travel document to the applicant will not be in the public interest.” Now it is to be seen, as to whether in view of facts of this case, passport can be denied to the petitioner under any of the circumstances, as mentioned above. Admittedly, petitioner is mother of Jagtar Singh Hawara, CIVIL WRIT PETITION NO. 14384 OF 2008 -7- a convict. That may be a relevant circumstance, but on the basis of this fact alone, passport cannot be denied to the petitioner, unless, it is proved on record that she has some criminal past and was indulging in activities prejudicial to the interest of the State. Petitioner is more than 65 years of age. She owns immovable property in village Hawara Kalan, district Fatehgarh Sahib in Punjab. She remained Sarpanch of the village Gram Panchayat. It is nobody's case that her son Avtar Singh, who is settled in USA, has any criminal past or was indulging in anti-national activities. Vide order dated April 15, 2009, this Court directed the respondents to verify objectionable activities, if any, of petitioner and her son, who is residing in USA. In response thereto, affidavit of Shri Shamsher Singh Boparai, PPS, Superintendent of Police (Detective), Fatehgarh Sahib, was put on record wherein it has been stated as under: “That the verification of the objectionable activities of Avtar Singh son of the petitioner, reportedly settled abroad, as well as activities of the petitioner, while staying in India, have been got verified through Sh. Karam Singh, SHO/ Station House Officer, Police Station Khamanon, who vide his report dated 20-05- 2009, has reported that no objectionable activity of Avtar Singh son of the petitioner as well as that of petitioner has come to light during the said verification. However, it is submitted here that the petitioner, being mother of the hardcore extremist Jagtar Singh Hawara, who has since been awarded capital punishment on 31-07-2007 by the court of Sh. R.K. Sondhi, the then Additional Sessions Judge, Chandigarh in case FIR No. 96 of the year 1995, registered at Police Station North UT CIVIL WRIT PETITION NO. 14384 OF 2008 -8- Chandigarh under Sections 302/307/120-B of IPC read with Sections 3 and 4 of the Explosive Act i.e. Murder case, pertaining to the murder of Sh. Beant Singh, former Chief Minister, Punjab and since she belongs to Babbar Khalsa International Radical Extremist Group, and as such, there is strong apprehension that she may indulge in antinational propaganda and pro-separatist activities by instigating insurgency, sabotage and other criminal activities against the security, sovereignty and integrity of India.” A reading of extract of the affidavit, reproduced above, indicates that no objectionable activity of the petitioner and her son, who is settled in USA, was noticed by the police authorities. However, recommendation has been made, not to issue passport to her, on the ground that she is mother of a convict in a murder case. Without any reasons, it has been stated that she belongs to an extremist group. To prove that, nothing was brought on record. Vide order dated May 27, 2009, petitioner was also asked to file an affidavit to remove apprehension expressed by Shri S.S. Boparai in his affidavit( part of which has been extracted above). In response thereto, petitioner has filed an affidavit dated June 22, 2009, wherein she has stated as under: “2. That the deponent was never a member of Babbar Khalsa International or any other social, political or religious group or organisation having anti national objects or pursued any activity prejudicial to the interest or security and sovereignty of India nor the respondents have pointed out any. CIVIL WRIT PETITION NO. 14384 OF 2008 -9- 3. That the deponent/ petitioner further undertakes that in the event of her proposed visit abroad, she shall not indulge in any activity so as to create hatred towards India or do anything prejudicial to the security, sovereignty and integrity of India or embarrass the country of her visit so as to spoil its relations with India nor will indulge in anti national propaganda or separatist activity to instigate insurgency of any kind.” In view of facts, mentioned above, this Court is of the view that denial of passport to the petitioner was not justified. She is an old lady who does not have any criminal past. No objectionable activity was found against her by the police during verification. There is nothing on record to show that her son, who is settled in USA, was involved, at any time, in any objectionable activity. Under these circumstances, this Court feels that to deny passport to the petitioner, provisions of Sections 5(ii)(b)(c) & (d) were wrongly applied. Merely because she is a mother of convict, passport cannot be denied to her unless otherwise something is brought on record to prove her association with any terrorist outfit or that she had any criminal past. Similar matter came up before Bombay High Court in Deepak Sadashiv Nikalje v. Union of India and others, 2003(2) Mh. L.J. 44. Petitioner in that case was brother of an international known gangster, namely, Chhota Rajan, due to which his application to renew passport was rejected by invoking the provisions of Section 6(2)(d) read with Section 5 (2)(c) of the Act. Following reasons were given to deny him the passport: “(a) The petitioner is the real brother of Chhota Rajan; CIVIL WRIT PETITION NO. 14384 OF 2008 -10- (b) It is not unlikely that the petitioner's intention in going abroad would be to indulge in the criminal activities like his brother who is already abroad; and © The petitioner's going abroad ostensibly to be with his brother who is a notorious gangster is likely to affect the reputation and may also result affecting the friendly relations of our country with that country where our nationals are engaged in such activities.” A Division Bench of Bombay High Court, after taking note of all facts and circumstances, ordered that denial of passport was not sustainable in law because there was no material against the petitioner, which may justify action of the authorities. Admittedly, in this case also, the petitioner, who is an old lady and do not have any criminal past. The authorities have failed to prove that she ever assisted any criminal outfit. Merely because she is mother of a convict in a sensational murder case, passport facility cannot be denied to her. It is made clear that in case she violates undertaking given by her in affidavit, brought on record today, then authorities will be at liberty to cancel her passport. In view of above, action of the authorities declining passport to the petitioner vide letter dated November 10, 2008 (Annexure R2/2) is set aside. Regional Passport Officer at Chandigarh, respondent No.2, is directed to issue her passport within sixty days from the date of receipt of copy of this order, if there exists no other legal infirmity against her. July 07, 2009. ( Jasbir Singh ) DKC Judge