WP(C) 6663/2003 BEFORE HON’BLE MR. JUSTICE H.N. SARMA The subject matter of challenge in this writ petition is an orde r dated 26/4/02 passed by the Regional Passport Officer, Guwahati thereby impoun ding the passport of the petitioner under the provisions of Section 10(3)(c) of the Passport Act, 1967. 2) I have heard Mr. AK Bhuyan, learned counsel for the petitioner a nd Ms. R. Bora, learned Central Govt. Counsel appearing for respondent Nos. 1 to 4. Also heard Mr. M.Sharma, learned Govt. Advocate on behalf of respondent No. 5. 3) The petitioner has come up with this writ petition pleading inte ralia that he is the holder of a valid passport being No. S-307273 and on number of occasions he used to travel out of India/abroad on account of business and f amily purposes. The petitioner having married on 1/12/02 decided to go abroad f or honeymoon and for such purpose he approached respondent No.4 by complying wit h necessary formalities of such foreign trip. But on such approach, he was surpr ised to know that his passport was impounded by an order dated 26/4/02 and on be ing requested, a copy of the impugned order was furnished to him which disclose that the authority has decided to impound/revoke the passport u/s 10(3)(c) of th e Passport Act, 1967 and necessary intimation to that effect were issued to diff erent authorities. 4) The petitioner by filing an application dated 12/2/03 requested the authority to furnish an official copy of the impugned order along with the r easons for passing the said order. But no action whatsoever was taken by the au thority. It is further alleged that before impounding the passport of the petit ioner no opportunity to show cause or otherwise was provided to the petitioner a nd nothing has been done for effective disposal of his representation. According ly, the petitioner for such violation of his fundamental and other legal rights, has approached this Court by filing this writ petition. 5) A counter has been filed on behalf of respondent No.4. The stan d of the respondent in support of the impugned action is that two criminal cases being Jalukbari PS Case No. 155/01 registered u/s 379/427 IPC and Jalukbari PS Case No. 62/02 registered u/s 7 of the Essential Commodities Act were registered against the petitioner. The allegation in Jalukbari PS Case No.155/01 is that some miscreants had made preparation for committing theft and pilferage of crude oil from the main carrying pipleline of DDL at Tetelia under Jalukbari Police S tation. The allegation levelled in Jalukbari PS Case No.62/02 is that the inform ant/police officer received a secret information that two oil tankers loaded wit h some stolen petroleum commodity would proceed towards north bank of Brahmaputr a from Gorchuk side for delivery at some petrol pumps in unauthorised manner ind ulging in illegal business. It is further stated that during investigation of t he cases, a prima facie case being well established u/s 120(B)/379/427 IPC read with Section 3(2)(B) of the Prevention of Damage of Public Property Act of 1984 was found against the petitioner and others. On completion of the investigation necessary chargesheet has been filed vide Chargesheet No. 48/02 and Chargesheet No.52/02 by the Jalukbari Police against the petitioner. In view of the aforesa id information received from the Superintendent of Police (City), Guwahati, the passport of the petitioner was impounded. The further contention of respondent No.4/Passport Officer is th at the impugned order has been passed in the interest of general public and also in the interest of sovereignty and integrity of India together with the securit y of India. In view of the report of the Superintendent of Police(City), Guwahat i, the impugned order cannot be revoked. 6) The stand of respondent No.5 as reflected in its affidavit is th at the petitioner is an accused in connection with the aforesaid two criminal ca ses and accordingly intimation was given to the passport officer for impounding the passport in question. 7) A reply affidavit has also been field by the petitioner against the aforesaid stand of the respondents. The basic grievance of the petitioner i n the instant case as highlighted in the pleadings and during the course of argu ment is that the respondent authorities passed the impugned order without compli ance of the provisions of Section 10(3) and 10(5) of the Passport Act, 1967. 8) Section 10 of the Passport Act lays down the provision regarding variation, impounding and revocation of passports and travel documents which is authorized to do so by the concerned authority on fulfillment of certain condit ions, as reflected therein. Sub- Section 3 of Section 10 provides that the passport authorit y may impound or cause to be impounded or revoke a passport or travel document i n the event of fulfillment of certain conditions as contained in Clause- (a) to (h) of Sub-Section 3 of Section 10 of the Act. As per Section 10(3)(c) of the Act, if the passport authority de ems it necessary so to do in the interests of the sovereignty and integrity of I ndia, the security of India, friendly relations of India with any foreign countr y, or in the interests of the general public, a passport issued to a person may be impounded. Section 10(3)(e) provides that if proceedings in respect of an o ffence alleged to have been committed by the holder of the passport or travel do cument are pending before a criminal court of India. Sub-Section 10(5) provides that where the passport authority mak es an order varying or cancelling the endorsements on, or varying the conditions of, a passport or travel documents under sub-section(1) or an order impounding or revoking a passport or travel document under sub-section (3), it shall record in writing a brief statement of the reasons for making such order and furnish t o the holder of the passport or travel documents and on demand a copy of the sam e to the holder of the passport unless in any case the passport officer is of th e opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign co untry or in the interests of the general public to furnish such a copy. 9) In the case in hand, the stand of the respondent authority is th at in view of the pendency of the aforesaid two criminal cases and the letter wr itten by the Superintendent of Police (City), Guwahati, the impugned order has b een passed impounding the passport of the petitioner. 10) It is submitted by Mr. Bhuyan that out of the aforesaid two crim inal cases, in Jalukbari PS Case No.62/07 the petitioner has been charged u/s 3 79/427 IPC read with Section 3(2)(B) of Prevention of Damage of Public Property Act whereas in the other case the petitioner has been charged u/s 7 of the Essen tial Commodities Act. It is contended that the former case is fixed for argumen t on 6/4/2010 and the other case, though was fixed today, prosecution could not casue to appear any witness. Both the two criminal cases are pending since 2002 in the criminal court at Guwahati. It is contended that no charge u/s 120(B) IP C as claimed by the respondents has been framed against the petitioner. Consequ ently, the ground of threat to sovereignty and integrity of India together with the security of India as projected by the respondents is not tanable in the abse nce of any charge to that effect. 11) One of the important features of the case as has been unearthed from the pleadings and arguments made by the learned counsel for the parties is that although it is statutorily incumbent upon the respondent authorities to rec ord in writing a brief statement of the reasons for making the order impounding the passport of the petitioner u/s 10(3)(c) of the Act and to furnish such groun d and statement to the petitioner, that was not followed. No ground with brief statement of the reasons has been produced before me by the learned counsel for the respondents. On specific query, Ms. Bora, the learned CGC submits that what ever ground is there it is reflected in the impugned order itself and no separat e ground or reasons recorded. On the other hand the impugned order disclose that the authority decided to impound or revoke the passport of the petitioner u/s 10(3) of the Pa ssport Act. On scrutiny of the order, it is clear that as per the impugned orde r it was decided to impugn the passport of the petitioner and to complete the pr ocess at later point of time. But nothing has been produced before the Court in this regard as to what action even at later point of time has been taken by the authority. 12) In the case of Smt. Menaka Gandhi -vs- Union of India and anoth er reported in AIR 1978 SC 597, a constitutional Bench of seven Judges of the A pex Court interpreting Section 10(3)(c) relating to the procedure for impounding the passport have held that exercise of power u/s 10(3)(c) is not dependent on the subjective opinion of the passport authority as regards the necessity of ex ercising it on one or more of the grounds stated in the section, but the passpor t authority is required to record in writing a brief statement of reasons for im pounding the passport and, save in certain exceptional circumstances, to supply a copy of such statement to the person affected, so that the persons concerned c an challenge the decisions of the passport authority before the higher authority who can examine whether the reasons recorded by the passport authority are corr ect, and if so, whether they justify the making of the order impounding the pass port. In the above cited case, the Supreme Court further held even tho ugh Section 10(3)(c) is valid, the question would always remain whether an order made under it is invalid as contravening a fundamental right. The direct and i nevitable effect of an order impounding a passport may, in a given case, be to a bridge or take away freedom of speech and expression and where such is the case, the order would be invalid, unless saved by Article 19(2) or Article19(6) of t he Constitution. 13) As discussed above, in the case in hand, the impugned action has been taken in gross violation of the provisions of Section 10(5) of the Passpor t Act by not recording the brief statement of the reasons in support of making t he order and furnishing the same to the petitioner which is mandatory requiremen t of law under the Act. The impugned order having been passed not following the mandatory provisions, in my considered opinion, the same has no legs to stand a nd liable to be set aside and quashed. The provision relating to record in writ ing a brief statement of reasons for impounding a passport is incorporated by th e legislature in its wisdom for observance of the basic principle of Natural Jus tice. It is statutory provision incorporated in the statute having mandatory im pact. Non-compliance of the order would certainly vitiate the action. 14) In view of what has been discussed, the impugned order dated 26/ 4/02 is stand set aside and quashed. 15) Mr. Bhuyan has undertaken that the petitioner shall not evade th e process of the court and duly make himself available in the pending cases befo re the criminal courts referred to above and would face any consequence. The ca ses are, in fact, in its fag end as stated at the Bar and both the cases are exp ected to be completed within a short period of time. The aforesaid submissions/undertaken of the learned counsel for the petitioner is recorded herein. 16) The writ petition stands allowed as indicated above. 17) No costs.