Facts of the case:
The Court was considering the appeal filed by the Enforcement Directorate against the Bombay High Court order upholdingthe order of Special Judge who directed it to return of Passport, Resident permit, PAN Card of Ashok RamchanderChugani.
Mr. Chugani, who is a Dutch National has two cases of serious kind of offences pending before the court.
What does the order say?
- Enforcement Directorate has no right to impound the passport, it can only be impounded by the concerned Passport Authorities
- Conditions may be imposed upon him that he may not leave the country till the conclusion of the cases.
SETTLED LAW ON IMPOUNDING PASSPORT:
102. Power of police officer to seize certain property.
- Any police officer, may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.
- Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.
- Every police officer acting under sub- section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.
While the police may have power to seize a passport, if it is permissible within the authority given under Section 102 of Cr.P.C.
However, it does not have power to retain or impound the same, because that can only be done by the passport authority under Section 10(3) of the Passports Act.
Section 10(3) of the Passports Act states that:
The passport authority may impound or cause to be impounded or revoke a passport or travel document,—
- if the passport authority is satisfied that the holder of the passport or travel document is in wrongful possession thereof;
- If the passport or travel document was obtained by the 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:
[Provided that if the holder of such passport obtains another passport, the passport authority shall also impound or cause to be impounded or revoke such other passport.]
[Provided that if the holder of such passport obtains another passport, the passport authority shall also impound or cause to be impounded or revoke such other passport.]"
- if the passport authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public;
- if the holder of the passport or travel document has, at any time after the issue of the passport or travel document, 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;
- if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India;
Hence, if the police seizes a passport (which it has power to do under Section 102 Cr.P.C.), thereafter the police must send it along with a letter to the passport authority clearly stating that the seized passport deserves to be impounded for one of the reasons mentioned in Section 10(3) of the Act. It is thereafter the passport authority to decide whether to impound the passport or not.
Since impounding of a passport has civil consequences, the passport authority must give an opportunity of hearing to the person concerned before impounding his passport.
Difference between seizure and impounding:
- A seizure is made at a particular moment when a person or authority takes into his possession some property which was earlier not in his possession. Thus, seizure is done at a particular moment of time.
- However, if after seizing of a property or document the said property or document is retained for some period of time, then such retention amounts to impounding of the property/ or document.
Thus, the word 'impounding" really means retention of possession of a good or a document which has been seized.
Leading authority in the issue:
In Suresh Nanda v. Central Bureau of Investigation, (2008) 3 SCC 674, it was laid down that Enforcement Directorate has no right to impound the passport, it can only be impounded by the concerned Passport Authorities.