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Assistant Collector of Customs, Madras Vs. Abdul Samathu - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtChennai High Court
Decided On
Case NumberCr. M.P. 9025 of 1984
Judge
Reported in1985(22)ELT761(Mad)
ActsCustoms Act; Foreign Exchange Regulating Act; Indian Passports Act, 1967 - Sections 10(3); Constitution of India - Articles 14, 19(1) and 21
AppellantAssistant Collector of Customs, Madras
RespondentAbdul Samathu
Appellant AdvocateB. Rajamanickam, Adv.
Respondent AdvocateM.R.M. Abdul Karim, Adv.
Cases ReferredManeka Gandhi v. Union of India
Excerpt:
customs - passport - section 10 (3) of indian passports act, 1967, foreign exchange regulating act and customs act - petition to set aside order directing return to respondent of his passport - respondent foreign citizen involved in offence of smuggling of goods - in case respondent convicted he would have to face sentence of imprisonment - under such circumstances if respondent allowed to leave country then he would not return to face trial and thereby defeat ends of justice - apprehension of department cannot be said to be farce or fanciful after taking into account magnitude of offence alleged to have been committed by respondent - paramount consideration is that of securing presence of accuse to face trial - when there is reasonable apprehension, only course available to court is to..........and ought to be returned forthwith. the learned counsel referred to the various provisions of the indian passports act of 1967 and pointed out that under section 10(3) of the act, the passport authority, which includes the government of the union of india, is entitled to impound or revoke the passport or a travel document for the reasons mentioned therein and no court has any such power. it is true that section 10(3) of the passports act, 1967 enumerates the grounds on which and the circumstances under which the passport authority can impound the passport issued under the act, that is, an indian passport. the act does not deal with the passport issued by a foreign government. there is, however, no provision in the passport act of 1967 or in any other law for the time being in force,.....
Judgment:
ORDER

1. This is a petition to set aside the order of the Additional Chief Metropolitan Magistrate (E.O.II), Egmore, Madras in M.P. 636 of 1984, directing the return to the respondents of his passport. The respondent therein the Assistant Collector of Customs House, Madras, is the petitioner herein.

2. The respondent accused is a citizen of Singapore and holds a passport issued by the Government of the Republic of Singapore. On 21-3-1984, at about 9-30 p.m. the respondent accused arrived at the Madras Airport from Singapore by Air India flight. His baggage consisted of one suit case, one hand bag, two polythene hand bags and one carton containing Sony Television and made a declaration in respect thereof. His oral declaration was accepted by the Customs Officer with regard to the contents and the value and a sum of Rs. 14,680, was levied as customs duty. The respondent immediately paid the amount under the receipt No. 16266, dated 21-3-1984. While he was about to leave the Airport, he was intercepted by an intelligence Office of Customs and his baggage was opened and examined in the persence of witnesses. The Sony colour television in the carton weighted heavily and hence the Customs Officer unscrewed the back cover and found three packets pasted with black adhesive tapes inside the right and left side walls of the television. One packet contained gold jewellery viz., 10 bangles, one pair of ear rings studded with red and white stones, one gold pendent, two gold necklaces, two small necklaces and one bracelet. Each of the other two packets contained 2 one kilo gold bars. All the 4 gold bars bore foreign marks 'Johnson Mathey - 9999 - London - 1 kilo'. The jewellery was worth of Rs. 51638, and the gold bars Rs. 8,18,000 in all Rs. 8,69,638. The accuse was not in possession of a valid permit for the importation of gold and gold jewellery in India and has imported them in violation of the provisions of the Foreign Exchange Regulating Act and the Customs Act. He also failed to declare his goods and had kept concealed then inside the colour television. All the goods were, therefore, seized and the accused was arrested. His passport was also seized and it has since been produced into the court below. He was sent for remand the next day.

3. The accused moved for bail before the Additional Chief Metropolitan Magistrate (E.O.II), Egmore, Madras. But the learned Judge by his order, dated 24-3-1984, rejected his bail.

4. The matter came up before the Court of Session, Madras, and the department strongly objected to his release on bail on the ground that the accused had smuggled gold worth about Rs. 9 lakhs, that he was a foreigner and he might leave the country for good. The learned Additional Sessions Judge took into consideration the fact that the passport of the accused had been seized by the Customs Officials and hence released the respondent on bail on condition that he should report before the Assistant Collector, Madras, daily. Subsequently, the condition has been relaxed. Thereafter, are the accused was detained under COFEPOSA on 14-9-1984, but was released by this court on 1-12-1984 according to the learned Public Prosecutor appearing for the department on technical grounds. On 11-12-1984, the respondent-accused filed an application before the Additional Chief Metropolitan Magistrate (E.O.II), Egmore Madras, in Cr.M.P. 636 of 1984, for the return of his passport to enable him to go to Singapore. He urged that during his detention under COFEPOSA, his father died in Singapore, on 6-10-1984, and he wanted to go to Singapore to see his mother and look after the business interests of his father. He further contended that his passport expired in January 1985, and he had to be present in Singapore for the renewal of the passport, as otherwise, he would forfeit his citizenship and suffer irreparable loss and injury. The application was opposed by the department. But the learned Additional Chief Metropolitan Magistrate directed the return of the passport. It is against this order that the department has preferred this petition.

5. It is contended by the learned Public Prosecutor appearing on behalf of the Assistant Collector of Customs, that the respondent is a citizen of Singapore, that he is involved in an offence of smuggling of goods worth about Rs. 9 lakhs, that if he is convicted, he will have to face a sentence of a minimum imprisonment for a period of six months and if the respondents is allowed to leave the shores of this country, he would not return to face the trial and thereby defeat the ends of justice. The apprehension of the department cannot be said to be farce or fanciful taking into account the magnitude of the offence alleged to have been committed by the respondent-accused. In fact, the learned Magistrate has himself found considerable force in the above contention of the department and has felt that if the petitioner did not return, the court would be helpless to secure him, but has ordered the release of the respondent on sympathetic grounds, in that he has lost his father and wanted to console his mother, who is undergoing iddat. Such sympathetic considerations cannot outweigh the interests of administration of justice. The paramount consideration is the securing of the presence of the accuse to face the trial and when there is reasonable apprehension thereabout, the only course available to the Court is to deny him the facility to leave the country by withholding or impounding his passport.

6. The main thrust of the arguments of Thiru M. R. M. Abdul Karim, the learned counsel for the respondent accused, however, is that the court has no jurisdiction to seize, withhold or impound the passport of a person he be an Indian or a foreigner. The seizure of the respondent's passport is, therefore, illegal and ought to be returned forthwith. The learned counsel referred to the various provisions of the Indian Passports Act of 1967 and pointed out that under Section 10(3) of the Act, the passport authority, which includes the Government of the Union of India, is entitled to impound or revoke the passport or a travel document for the reasons mentioned therein and no court has any such power. It is true that Section 10(3) of the Passports Act, 1967 enumerates the grounds on which and the circumstances under which the passport authority can impound the passport issued under the Act, that is, an Indian Passport. The Act does not deal with the passport issued by a Foreign Government. There is, however, no provision in the Passport Act of 1967 or in any other law for the time being in force, which prohibits a Court for withholding or impounding a passport of a person accused of a grave offence, when there is reasonable apprehension that the accused may flee from the country and make the prosecution against him an exercise in futility. Such a power is part of the inherent powers of the Court. It is an age-old and well-established principle that Court must process inherent powers, apart from the express provisions of the law, which are necessary to their existence and the proper discharge of duties imposed upon them by law. Every Court in the absence of express provision must be deemed to possess, as inherent in its very constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice. This is based on the principle embodied in the maxim : Quando lex aliquid alicui concedit concedere videtur id quo res ipsa esse non potest (when the law gives anything to anyone, it gives also all those things without which the thing itself would be unavailable). The Criminal Court has undoubtedly, the power to withhold or impound the passport of any person, more so of a foreigner, accused of a grave offence when there is every likelihood of his leaving the country and making a mockery of the judicial against him.

7. I shall now refer to two decisions relied on by the learned counsel for the respondent. The decision in Satwant Singh Sawhney v. D. Ramaratnam Assistant Passport Officer, Government of India, New Delhi and others - : [1967]3SCR525 was rendered by the Supreme Court prior to the passing of the Indian Passports Act, 1967. The majority of the Judges held that a person living in India has a fundamental right to travel abroad under Art. 21 of the Constitution and cannot be denied a passport, because, factually, a passport a necessary condition for travel abroad and the Government, by withholding the passport, can effectively deprive him of his right. It was pointed out that under Art. 21 of the Constitution no person can be deprived of his right to travel a except according to the procedure established by law, and no law had been made by the State regulating or depriving a person of such a right. The majority of the Judges of the Supreme Court also held that the Government's claim for absolute discretion in the matter of issuing passports would be violative of Art. 14 of the Constitution. Hence, the order of the Passports Authority withdrawing the passport facility extended to the petitioner was struck down. It is this decision which has led to the passing of the Indian Passports Act, of 1967, providing for the issue of passports and travel documents to regulate the departure from India of citizens of India and other persons for matters incidental or ancillary thereto.

8. In Maneka Gandhi v. Union of India - : [1978]2SCR621 , the validity of the order of the Government of India to impugned her passport under Section 10(3)(c) of the passports Act in public interest came up for consideration before a Bench of seven judges of the Supreme Court. It was contended on behalf of the petitioner that Section 10(3)(c) of the Passports Act was violative of the fundamental rights guaranteed under Articles 14, 19(1)(a) and (g) and 21 of the Constitution. This contention was negatived by the majority of the learned Judges, But so far as the order impounding the passports of Mrs. Maneka Gandhi was concerned, it was found that the principle of audi alteram partem was not complied with, in that the Central Government not only did not give an opportunity of hearing to the petitioner after making the impugned order impounding her passport, even declined to furnish to the petitioner the reasons for impounding her passport despite request made by her. The Central Government was, therefore, wholly unjustified in withholding the reasons for impounding the passport from the petitioner and this was not only in breach of the statutory provisions, but it also amounted to denial of opportunity of hearing and was not in conformity with the procedure prescribed by the Passports Act, 1967. Realising this fatal defect, the learned Attorney General made a statement at the Bar that the Government was agreeable to consider any representation that may be made by the petitioner in respect of the impounding of her passport and giving her an opportunity in the matter and the representation of the petitioner would be dealt with expeditiously in accordance with law. In view of the aforesaid statement made by the learned Attorney General and in view of the majority view of the learned Judges of the Supreme Court, the Supreme Court did not think it necessary to formally interfere with the impugned order. The writ petition was disposed of without passing any formal order and the passport was ordered to be kept in the custody of the Registrar of the Supreme Court until further orders. Neither of the decision in Satwant Singh Sawhney v. Passport Officer, : [1967]3SCR525 nor the decision in Maneka Gandhi v. Union of India touched or affected the powers of a Criminal Court to withhold or impound the passport of a person accused of an offence, is likely to leave the shores of the country and make good his escape from the clutches of law.

9. It is urged by the learned counsel for the respondent that the respondent's passport expires in January 1985, that the respondent has to return to Singapore before the expiry of his passport, so that he could have it renewed, and in default he will lose his citizenship in Singapore and can never again land in that country, that he cannot continue to live in India as well and he will thus become a stateless person. The argument has the merit of attractive plausibility, but a close scrutiny will expose its allowance. The laws of Singapore are not so stringent and the difficulties echoed by the respondent are not so insurmountable as portrayed by his learned counsel. When a person is standard in a foreign country and could not return to his native land before the expiry of his passport, the usual practice is to apply to his country's Diplomatic Mission in the foreign country in which he is standard to renew his passport or to extend the period of expiry or for the issue of a travel document to go back to his country. So also it is the Diplomatic Mission which has to be approached when the passport is lost or destroyed while abroad. That this is the law of Singapore is amply demonstrated by the following note in the respondents passport :

Passports are issued and renewed by the competent authorities in Singapore and by authorised representatives of Singapore abroad to whom applications should be made.'

It is, therefore, open to the respondent to move the High Commission for Singapore in New Delhi to renew the passport and if necessary he can get the necessary directions from the court below. The contention, therefore, that unless the respondent is allowed to go back to Singapore before the expiry of his passport, he will lose his citizenship is unsound and untenable. Be that as it may, it is not open to the respondent to plead these difficulties, which are of his own making to entitle him to flee from this country and from the consequences of his criminal acts.

10. The last contention advanced by the learned counsel for the respondent-accused is that he has already deposited a cash of Rs. 33,500 as security, that Thiru M. Rajaraman, Director of Staneware Pipes (Madras) Ltd., Trivelore, Chengalpattu, District, has appeared before the court below and stood guarantee for the return of the respondent and that the respondent is willing to be subject to further conditions with heavy bonds and sureties. It is futile to rely upon the sureties in the case of a foreigner like the respondent to come back, for they will be as helpless as the Court in securing the return of the person. Money has never been an inhibition for smugglers and the forfeiture of the amount to the Government is no substitute for the enforcement of the penal law of the land. The offer of the respondent to execute any bond and to furnish security cannot, therefore, be accepted.

11. It is represented by the learned Public Poosecutor for the petitioner - the Assistant Collector of Customs, that the complaint in this case is being filed in a day or two and he undertakes to compete the trial within two weeks. With a little amount of cooperation on the part of the defence, it may not be difficult to dispose of the case within four weeks, from now. The learned Additional Chief Metropolitan Magistrate, Egmore, Madras is, therefore, directed to give priority to this case and dispose of it expeditiously.

12. In the result, the petition is allowed. The order of the Additional Chief Metropolitan Magistrate (E.O.II) Egmore, Madras, directing the return of the passport to the respondents is set aside.

13. Learned counsel for the respondent makes an oral application for leave to file an appeal before the Supreme Court. As substantial question of law is involved in the matter regarding the jurisdiction of the Criminal Court to withhold or impound the passport of a foreigner who is accused of a grave offence, leave is granted.


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