High Court of Punjab and HaryanaCWP/27167/2018disposed of

Mohan Lal @ Mohna v. Union Of India And ORS

2023-07-14Mr. Justice Jagmohan Bansal36 pages

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. .. . : - 2 /CWP No. 27167 of 2018.

The petitioner through the instant petition under Articles 226/227 of the Constitution of India is seeking direction to respondents No. 1 to 3 to renew passport of the petitioner.

Brief Facts:

Brief facts of the case which are necessary for the adjudication of present case are that the petitioner was issued passport on 22.08.2005

which expired on 21.08.2015. An FIR dated 13.03.2008 under NDPS Act came to be registered against him. The trial court vide judgment dated 09.10.2013 convicted the petitioner under Section 15 of NDPS Act and sentenced to imprisonment of 10 years. The petitioner assailing judgment of conviction and order of sentence preferred an appeal CRA-S-3725-SB of 2013 before this Court which came to be admitted vide order dated 25.11.2013. The sentence of the petitioner came to be suspended vide order dated 14.02.2017 passed by this Court. The petitioner on 07.07.2017 moved an application seeking renewal of his passport. The petitioner was informed vide communication dated 17.07.2017 that there is an adverse police report. The application of the petitioner came to be closed.

The petitioner, in the pending appeal, preferred an application before this Court, seeking direction to respondents to renew his passport which came to be dismissed vide order dated 25.09.2018. The application was dismissed observing that relief sought for by petitioner is civil in nature and in case of denial of his application, he has remedy to file civil writ petition.

Contention of the Petitioner:

Ld. Counsel for the petitioner inter alia contends that his case is covered by clause (e) of Section 6(2) of the Passport Act, 1967 (in short "1967 Act"). As per Clause (e) of Section 6(2) of the 1967 Act, passport authority may issue passport if an applicant is convicted five years prior to the date of application or sentence is less than two years. In case an applicant is convicted for sentence of less than two years or a period of five years from the date of conviction has passed away, rigour of clause (e) of Section 6(2) of the 1967 Act is not applicable. In the case

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of petitioner, five years period from the date of conviction expired on 8.10.2018, thus, petitioner is entitled to passport and respondents have wrongly rejected application of the petitioner. Contention of the Respondents:

Mr. 17 submits that petitioner was convicted vide judgment dated 09.10.2013 passed by Special Court, Kapurthala. He was awarded sentence of 10 years, thus, adverse report was forwarded to passport authorities.

Ld. Counsels for the respondents No. 1 to 3 i.e. Union of India and passport authorities inter alia would submit that petitioner has been convicted and awarded sentence of 10 years, thus, he cannot be issued passport. An appeal is continuation of original proceedings either civil or criminal. Admittedly, appeal of the petitioner is pending before this Court, thus, case of the petitioner though is not covered by Clause (e), yet, is squarely covered by (f) of Section 6(2) of the 1967 Act. The Government in exercise of power conferred by Section 22 of the Act has issued notification No. 570(E) dated 25.08.1993 wherein it has been clarified that passport to an applicant against whom criminal proceedings are pending, can be issued only on the direction of Court. The said notification is applicable to pending appeals, thus, passport without consent of the Court cannot be issued.

In support of his contention, Learned State counsel placed reliance upon judgments of Hon'ble Supreme Court in Kalawati Vs. State of Himachal Pradesh (1953) 1 SCC 86 and Ramnath Exports Pvt. Ltd. Vs. Vinita Mehta and another (2022) 7 SCC 678 wherein it has been held that appeal is continuation of original proceeding.

I have heard arguments of both sides and scrutinized record with their able assistance.

From the pleadings and arguments of both sides following question arise for the consideration of this court: "Whether clause (f) of Section 6(2) of Passport Act, 1967 is applicable to an applicant whose criminal trial has already concluded and appeal is pending before Appellate court?"

Passport & Fundamental Rights:

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/ 13.

The controversy in the present case relates to interpretation of the provisions of Clauses (e) and (f) of Section 6(2) of the Passports Act and the notification dated 25.08.1993 issued by the Central Government. Respondent no. 1 and respondent no. 3 have taken somewhat divergent stands. According to respondent no. 1, the petitioner would not be entitled to a passport by virtue of Clauses (e) and (f) of Section 6(2) of the Passports Act. However, the Central Government has, in exercise of powers under Section 22 of the Passports Act, issued the notification granting certain exemptions from the operations of Section 6(2)(f) of the Passports Act by issuing a notification dated 25.08.1993. According to respondent no.

1, in terms of the said notification, a passport can be issued to the petitioner provided the petitioner secures a no objection from the concerned court where criminal proceedings against him are pending. It is contended that the petitioner's appeal before this Court (Crl. Appeal No. 1464 of 2014) is a continuation of criminal proceedings and a no objection from this Court would entitle the petitioner for reissuance of a passport. Respondent no. 3 has countered the aforesaid submission. According to respondent no. 3, the aforesaid notification is not relevant as it does not relax the application of Clause (e) of Section 6(2) of the Passports Act. Respondent no.

3 contends that a passport can be issued on the basis of an NOC by a concerned Court only where criminal proceeding for an alleged offence are pending and the said notification would have no application where an accused has been convicted of an offence.

14.

xxxx

15. A plain reading of the aforesaid provision indicates that Clauses (e) and (f) refer to different situations. Clause (f) is

applicable only in cases where criminal proceedings are pending in respect of an allegation of an offence. Clearly, the said clause is inapplicable where the criminal proceedings have culminated in a conviction and the offence alleged to have been committed has been established. Plainly, in such circumstances, the offence cannot be described as "alleged to have been committed". Clause (e) of Section 6(2) of the Act relates to a case where an applicant has been convicted of an offence involving moral turpitude and has been sentenced in respect thereof to an imprisonment for not less than two years. It is also relevant to note that the rigor of Clause (e) is applicable only for a period of five years after such conviction.

16 to 18.

xxxxxx

19. A plain reading of the said notification indicates that its scope is limited to exempt persons from the operation of Clause (f) of subsection (2) of Section 6 of the Passports Act. The opening paragraph of the said notification makes it amply clear that it only exempts citizens against whom proceedings, in respect of an offence alleged to have been committed by them, are pending before a Criminal Court in India.

20. There is merit in respondent no. 3's contention that in case of the petitioner the matter has travelled beyond the stage of a mere allegation. Although the petitioner has preferred an appeal against his conviction, this Court has not passed any order staying the same. Thus, as it stands today, the petitioner stands convicted of an offence involving moral turpitude and has been sentenced to undergo imprisonment for a period of three years. In the aforesaid view, the notification dated 25.08.1993 has no application.

21. It is also relevant to note that respondent no. 1 has not denied the petitioner's request for issuance of a passport

under Section 6(2)(f) of the said Act. In view of the above, this Court finds no infirmity with the decision of respondent no. 1 to deny the petitioner the facility of passport. However, the reference to the notification dated 25.08.1993 in the impugned order is misplaced.

22. The petitioner had relied on the decisions in the case of Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, New Delhi : AIR 1967 SC 1836 and Maneka Gandhi v. Union of India, (1978) 1 SCC 248 in support of his contention that the petitioner has a fundamental right to a passport and the same cannot be denied. This is without merit. Although, the petitioner has a right to a passport, the same is circumscribed by the provisions of the Passport Act. And, the validity of the said provisions have not been challenged.

23. Mr. Prakash, learned counsel appearing for the respondents had placed reliance on the decision of the High Court of the State of Telangana and Andhra Pradesh in Subhas Chandra Bose Mandava v. Union of India, Ministry of External Affairs : Writ Appeal No. 1026 of 2018, decided on 01.08.2018 in support of his contention that appellate proceedings would also fall within the scope of criminal proceedings as referred to in the notification dated 25.08.1993. The reliance on the said decision is misplaced, as in that case, an appeal against an order of acquittal (not conviction) was pending. Thus, clause (e) of Section 6(2) of the Passport Act was not applicable and the case of the applicant therein could be processed in terms of the notification dated 25.08.1993.

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13. Ordinarily, the tests that can be applied for judging an offence involving moral turpitude are:

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14. The other important factors that are to be kept in mind to conclude that an offence involves moral turpitude are : the person who commits the offence; the person against whom it is committed; the manner and circumstances in which it is alleged to have been committed; and the values of the society. [Jorabhai Hirabhai Rabari v. Distt. Development Officer, 1995 SCC OnLine Guj 117: AIR 1996 Guj 3] % 3 ?

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