Judgment:
C.M. Nayar, J.
(1) The facts as stated in the petition are that the petitioner is a Non Resident Indian residing at Dubai and is a law abiding Indian Citizen. There is no criminal case which is pending against her in this country. The petitioner deposited her Passport bearing No. A-992578 for renewal to respondent No. 3 and she was assured that she would get the passport on June 10, 1996 after renewal. However, the passport was never returned to the petitioner nor any reason for non-renewal was stated.
(2) It is further alleged that the petitioner intended to visit India in summer vacation from Dubai along with her children and she could not undertake the journey as her passport was not renewed and returned to her for no reasons nor any reply had been communicated to her by the Authorities. Similar incident had taken place in the year 1994 when passport of the petitioner was illegally retained by the Consulate General of India at Dubai for about a year and subsequently was released. The petitioner made representations to the Minister of External Affairs requesting for early return of her passport but there had been no response. Since there was no response from the concerned Authorities to the representations of the petitioner she was left with no choice but to file the present petition in this Court. The writ of mandamus is prayed for direction to the respondents to forthwith renew the passport of the petitioner and return the same to her.
(3) Subsequently, this writ petition was amended as in the meanwhile the petitioner had received an Order dated September 25, 1996 passed under Section 10(3)(c) of the Passports Act, 1967 (hereinafter referred to as 'the Act') impounding the passport of the petitioner. This order reads as follows:
'CONSULATEGENERAL Of India Dubai (U.A.E.) No. ....DUBAI.... Dated 25.9.1996 Smt. Hajra lqbal Memon, Post Box No. 52444, Dubai U.A.E. Madam I am directed to inform you that your passport No. A-992578 dated 8.7.96 issued at Bombay has been impounded under Section 10(3)(c) of the Passports Act, 1967. However, you are informed that you have a right to appeal under Section 11 of the Passports Act within 30 days of this Order to the Chief Passport Officer. Ministry of External Affairs, Tilak Marg, Patiala House, New Delhi upon payment of Dh3 as appeal fee. If your appeal does not reach us within the stipulated period, it be finalised as per Passport Act. Yours faithfully, sd/- R.B. Lal Counsel (Passport)'
(4) The petition was amended again as in the meanwhile the order in appeal was also passed by the Appellate Authority on January 1, 1997 arid the same has also been impugned in this petition. The order dated January 1, 1997 reads as follows:
'GOVERNMENT of India Ministry of External Affairs (CPV Division) No. VI/405/1/68/93 Pt.V January 1, 1997 Order Mrs. Hazra Iqbal Memon wife of Iqbal Memon @ Iqbal Mirchi, the prime suspect in the Bombay Blast Cage, and holder of passport No. A-992578 dated 9.7.1986 had on 10.6.1996 applied to Consulate General of India, Dubai for its renewal/addition of visa sheets. In terms of Section 5(2) of the Indian passports Act, 1967 Cgi Dubai caused an enquiry on her application through Government channel. In the course of this enquiry, it was found by the Central Agencies that the properties belonging to her as well as her husband (as separate from hers) had been frozen by the Narcotics Cell, Mumbai and that the process of forfeiture of their separate and independent properties to the Government was in progress. As such it was reasonably apprehended and felt by the Central Agencies that if Mrs. Hazra Iqbal Memon was allowed to come to India/Mumbai, it was lively that she may secretly dispose off the properties in her name as also the properties in the name of her husband lqbal Memon, the prime suspect in the Bombay Blast case. In view of this, the Ministry of External Affairs was advised that the passport granted to Mrs. Hazra lqbal Memon may be impounded/revoked in the interest of the general public so that she is unable to visit India and hamper the forfeiture proceedings of her properties which stand in her name separately and independently from those of her husband Iqbal Memon. It was in pursuance to this advise that her passport was impounded under Section 10(3)(c) of the Indian Passports Act, 1967 in the interest of the general public vide impounding Order No. VI/405/1/68/93 Pt.V dated 18.9.96. the decision to impound her passport under the above mentioned provision of Law was duly communicated to her on 25th September, 1996 by Cgi, Dubai vide their letter No. DUBA/815/2/93 (Pt.II) dated 25.9.96 in which she was informed that she had a right to appeal to the Chief Passport Officer, New Delhi against this Order within 30 days of its receipt by her. Mrs. Hazra Iqbal Memon has chosen to exercise this right resulting in the present appeal.'
(5) The appellant being away in Dubai has filed a written appeal and has also been afforded an opportunity of a personal hearing which she has availed through her legal counsel on 4.12.96. I have carefully gone through her written appeal as well as heard the arguments of her counsel. The main contentions put forth are: a) denial of natural justice and fair play for not giving an opportunity of hearing before or immediately after impounding of passport: B) non communication of reasons for impounding of passport. The counsel while arguing her case relied and quoted copiously, relevant excerpts from the Supreme Court judgments in the Menaka Gandhi case and the Satwant Singh Sahni case to buttress his arguments. These have also been carefully considered by me. The contentions of the appellant are unacceptable and are refuted inasmuch as a fair opportunity of hearing following the issue of the Order impounding her passport was given to her in the form of this appeal thus satisfying the mandate of natural justice and fair play. As regards the other contention of non communication of reasons for impounding the passport, it is stated that under Section 10(5) of the Indian Passports Act, 1967, the Passport Authority may withhold the reason in case it is of the opinion that it will not be in the interest of the general public to do so. It was under the provision of this Section that the reasons for impounding her passport were not communicated to her in the interest of the general public. The further contention of the appellant advanced during oral arguments that the case against her husband Iqbal Memon @ Iqbal Mirchi, the prime suspect in the Bombay Blast case should not be a ground against his wife is also not tenable since according to the reports of the Central Agencies) properties belonging to the appellant which arc in her own name and are separate and independent from those of her husband have also been frozen by the Narcotics Cell, Mumbai and confirmed by the competent authority SAFEMA/NDPS Mumbai and that separate forfeiture proceedings are also in progress in respect of her own properties as distinct from those of her husband's.
(6) I have carefully considered all aspects of the written appeal of Mrs. Hazra lqbal Memon as well as the oral arguments of her counsel. In view of the facts of the case stated above as also in view of the fact that the Cause of action (i.e. pendency of forfeiture proceedings of her properties in her own name) for impounding her passport is still not over, I, K.C.Singh, Joint Secretary to the Government of India and Chief Passport Officer in the exercise of powers conferred upon me under Section 10(3)(c) of the Passports Act, 1967 uphold the impounding Order No. VI/405/68/93 Pt. V dated 18.9.1996.
SD/-(S.C.Singh) Joint Secretary (CPV) and Chief Passport Officer.
(7) The respondents have filed their counter affidavit to the writ petition wherein the following picas are taken that will formulate the grounds of impugned action:
(A)The petitioner is a 'non-resident Indian' and is wife of lqbal Memon @ lqbal Mirchi, the prime suspect in the Bombay Blast case. The petitioner had applied for additional visa sheets/renewal of her passport to the Consulate General of India, Dubai-Respondent No. 3 on 10.6.1996. The Consulate General of India, Dubai-Respondent No. 3 thought it fit to refer her case to the Officer of Chief Passport Visa Division of Ministry of External Affairs and the same was referred to the officer of Chief Passport Visa Division of Ministry of External Affairs on 23rd June, 1996. The Chief Passport Visa Division in turn sought clearance from Central Bureau of Investigation, who are handling the Bombay Blast case. On 31st July, 1996 it was informed that Narcotics Cell, Mumbai has frozen the properties of Iqbal Memon and his wife Smt. Hajra/Hazra Iqbal Memon and the process of the forfeiture of their properties to the Government of India is in progress. There is apprehension that if the Petitioner comes to India/Mumbai, it is likely that she may secretly dispose off the properties in her name and also the properties in the name of lqbal Memon and the Narcotics Cell, Mumbai have requested not to grant additional visa sheet on her passport till. the finalisation of the forfeiture proceed ;ings of the property. The Superintendent of Police, CBI:STF: new Delhi informed that the Narcotics Cell, Mumbai has made a request that passport granted to the petitioner may be impounded/revoked under Section 10(3)(c) of the Act by Uo dated 16th August, 1996. Shri V.P.Bhatia, Under Secretary to the Government of India, Ministry of Home Affairs has confirmed the position to impound/revoke the passport of the petitioner under Section 10(3)(c) of the Act in the interest of the general public by O.M. dated 12th September, 1996. Based on the aforesaid communication Chief Past Visa Division in the Ministry of External Affairs issued Circular No. VI/405/1/68/93 Pt. V dated 18th September, 1996 impounding her passport. On 25th September, 1996 it was informed that her passport has been impounded under Section 10(3)(c) of the Act and she has aright to appeal under Section 11 of the Passports Act within 30 days of the order.
(B)The respondents were not guided by any extraneous consideration in the matter and were within their right to impound the passport of the petitioner under Section 10(3)(c) of the Act in the interest of General Public as otherwise the responsibility for not taking any action on the advise of Central Bureau of Investigation and Ministry of Home Affairs would have vested squarely with the Ministry of Foreign Affairs. thereforee, it is denied that the action on the part of the respondents in impounding the passport is illegal, arbary, mala fide, vexatious, unjustifiable and ultravires Articles 14 and 21 of the Constitution of India.
(8) At this stage, reference may be made to the relevant provisions of the Act which may be reproduced as follows: Sections 5 and 10
'5.Applications for passports, travel documents, etc. and order thereon- (1) An application for the issue of a passport under this Act for visiting such foreign country or countries (not being a named foreign country) as may be specified in the application may be made to the passport authority and shall be accompanied by such fee as may be prescribed to meet the expenses incurred on special security paper, printing, lamination and other connected miscellaneous services in issuing passports and other travel documents. Explanationn- In this section, 'named foreign country' means such foreign country as the Central Government may, by rules made under this Act, specify in this behalf.
(1A)An application for the issue of-
(I)a passport under this Act for visiting a named foreign country; or
(II)a travel document under this Act, for visiting such foreign country or countries (including a named foreign country) as may be specified in the application or for an endorsement on the passport or travel document referred to in this section may be made to the passport authority and shall be accompanied by such fee (if any) not exceeding rupees fifty, as may be prescribed.
(1B)Every application under this section shall be in such form and contain such particulars as may be prescribed.
(2)On receipt of an application under this section, the passport authority, after making such inquiry, if any, as it may consider necessary, shall, subject to the other provisions of this Act, by order in writing-
(A)issue the passport or travel document with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of the foreign country or countries specified in the application; or
(B)issue the passport or travel document with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of one or more of the foreign countries specified in the application and refuse to make an endorsement in respect of the other country or countries; or
(C)refuse to issue the passport or travel document or, as the case may be, refuse to make on the passport or travel document any endorsement.
(3)Where the passport authority makes an order under clause (b) or clause (c) of sub-section (2) on the application of any person, it shall record in writing a brief statement of its reasons for making such order and furnish to that person on demand a copy of the same unless in any case the passport authority is of the 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 country or in the interests of the general public to furnish such copy.
10.Variation, impounding and revocation of passports and travel documents- (1) The passport authority may, having regard 10 the provisions of sub-section (1) of section 6 or any notification under section 19, vary or cancel the endorsements on a passport or travel document or may, with the previous approval of the Central Government, vary or cancel the conditions (other than the prescribed conditions) subject to which a passport or travel document has been issued and may, for that purpose, require the holder of a passport or a travel document, by notice in writing, to deliver up the passport or travel document to it within such time as may be specified in the notice and the holder shall comply with such notice.
(2)The passport authority may, on the application of the holder of a passport or a travel document, and with the previous approval of the Central Government also vary or cancel the conditions (other than the prescribed conditions) of the passport or travel document.
(3)The passport authority may impound or cause to be impounded or revoke a passport or travel document-
(A)If the passport authority is satisfied that the holder of the passport or travel document is in wrongful possession thereof;
(B)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.
(C)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;
(D)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;
(E)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;
(F)if any of the conditions of the passport or travel document has been contravened;
(G)if the holder of the passport or travel document has failed to comply with a notice under sub-section (1) requiring him to deliver up the same;
(H)if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made.
(4)The passport authority may also revoke a passport or travel document on the application of the holder thereof.
(5)Where the passport authority makes an order varying or cancelling the endorsements on, or varying the conditions of, a passport or travel document 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 to the holder of the passport or travel document on demand a copy of the same unless in any case the passport authority is of the opinion that it will not he 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 to furnish such a copy.
(6)The authority to whom the passport authority is subordinate may, by order in writing, impound or cause to be impounded or revoke a passport or travel document on any ground on which it may be impounded or revoked by the passport authority and the foregoing provisions of this section shall, as far as may be, apply in relation to the impounding or revocation of a passport or travel document by such authority.
(7)A court convicting the holder of a passport or travel document of any offence under this Act or the rules made there under may also revoke the passport or travel document: Provided that if the conviction is set aside on appeal or otherwise the revocation shall become void.
(8)An order of revocation under sub-section (7) may also be made by an appellate court or by the High Court when exercising its powers of revision.
(9)On the revocation of a passport or travel document under this section the holder thereof shall, without delay, surrender the passport or travel document, if the same has not already been impounded, to the authority by whom it has been revoked or to such other authority as may be specified in this behalf in the order or revocation.'
(9) The learned counsel for the petitioner has contended that the respondents have no legal authority to impound the passport of the petitioner except by due process of law. Article 19(l)(c) of the Constitution of India clearly grants right to the petitioner to reside and settle in any part of the territory of India as she is a citizen of this country and the impugned order, thereforee, is invalid. The Government is only permitted to act in terms of provisions of Article 19(5) to impose reasonable restrictions in the interests of general public. There cannot be any restriction with the right to enter India. Reference is made to the Communication which is filed as Annexure R.1 to the counter affidavit of the respondents to reiterate that there is total nonapplication of mind and the order impounding the passport of the petitioner cannot be sustained in law. The only ground which is sought to be relied upon by the respondents in taking the impugned action will be indicated from the reasons as slated in the above said Communication dated 31st July, 1996 which reads as follows:
'MHA may please refer to their Id Note No. 11/20034/85/94-IS (US D-IV) dt. 17.7.96 regarding grant of passport services to Hazra Iqbal Memon and her three children.
2.Views of Dcp Narcotics Cell, Mumbai, who is dealing with the cases of Iqbal Memon were called for. It has been intimated that Narcotics Cell, Mumbai has fro/en the properties of Iqbal Memon and his wife Smt. Hazra Iqbal Mamon. The process of the forfeiture of these properties to the Government is in progress. The Narcotics Cell, Mumhai, feels that if Smt. Hazra Iqbal Memon comes to India/Mumbai, it is likely that she may secretly dispose off the properties in her name and also the properties in the name of Iqbal Memon.
3.In view of the above, Narcotics Cell, Mumbai, have requested not to grant additional visa sheet on her passport till the finalisation of the forfeiture proceedings of the property. This issues with the approval of DIG/STF. 31.7.96 sd/- (O.P.Chhatwal) Sp CBI/STF New Delhi'
(10) The office Note would further show that the matter was discussed and the grounds mentioned by C.B.I, were considered not sufficient to refuse/deny passport to her and might not stand scrutiny in Court of law. thereforee, C.B.I, was asked to furnish specific charges against the petitioner. The same were repeated in the Communication of 16th August, 1996 and will read as follows:
'It has been intimated by the Narcotics Cell, Mumbai that they have frozen the properties of Iqbal Memon and his wife Smt. Hazara Iqbal Memon. The process of the forfeiture of these properties to the Government is in progress, it is felt by the narcotics Cell, Mumbai that if Smt. Hazra lqbal Memon comes to India/Mumbai, it is likely that she may secretly dispose of , properties in her name and also the properties in the name of lqbal Memon. In view of the above, the Narcotics Cell, Mumbai has made a request that Passport granted to Smt. Hazra lqbal Memon may please be revoked so that she is unable to visit India and hamper the forfeiture proceedings of her properties in India. The copy of message received from Narcotics Cell, Mumbai is enclosed for ready reference. May kindly take necessary steps to impound/revoke the Passport granted to Smt. Hazra Iqbal Memon u/s 10(3)(c) of the Passports Act, 1967.'
(11) Reliance is placed on the judgments of the Supreme Court as reported in Satwant Singh Sawhney v. D.Ramarathnam, Assistant Passport Officer, New Delhi and others : [1967]3SCR525 and Mrs. Maneka Gandhi v. Union of India and another : [1978]2SCR621 .
(12) In Satwant Singh Sawhney (supra) the majority judgment highlighted the importance of passport as it is never possible for a person residing in India to visit foreign countries or to return without the possession of a valid passport. Paragraph 7 reads as follows:
'7.As a result of international convention and usage among nations it is not possible for a person residing in India to visit foreign countries, with a few exceptions, without the possession of a passport. The Govt, of India has issued instructions to shipping and airline companies not to take on board passengers leaving India unless they possess valid passport. Under Section 8 of the Indian Passport Act, 1920, the Central Government may make rules requiring that persons enter into India shall be in possession of passport. In exercise of the powers conferred under Section 8 of the said Act rules were made by the Central Government. Under Rule 3 thereof, no person proceeding from any place outside India shall enter or attempt to enter India by water, land or air unless he is in possession of a valid passport conforming to the conditions prescribed in Rule 4, thereof. Under Section 4 of the said Act any such person may be arrested by an officer of police not below the prescribed rank; and under Rule 6 of the Rules any person who contravenes the said rules shall be punishable with imprisonment for a term which may extend to 3 months or with a fine or with both. Under Section 5 of the Act the Central Government is authorised by general or special order to direct the removal of any such person from India. The combined effect of the provisions of the Act and the rules made there under is that the executive instructions given by the Central Government to shipping and airlines companies and the insistence of foreign countries on the possession of a passport before an Indian is permitted to enter those countries make it abundantly clear that possession of passport, whatever may be its meaning or legal effect, is a necessary requisite for leaving India for traveling abroad. The argument that the Act docs not impose the taking of a passport as a condition of exit from India, thereforee, it does not interfere with the right of a person to leave India, if we may say so, is rather hypertechnical and ignores the realities of the situation. Apart from the fact that possession of passport is a necessary condition of travel in the international community, the prohibition against entry impliedly indirectly prevents the person from leaving India. The State in fact tells a person living in India 'you can leave India at your pleasure without a passport, but you would not be allowed by foreign countries to enter them without it and you cannot also come back to Indra with- out it.' No person in India can possibly travel on those conditions. Indeed it is impossible for him to do so. that t apart, even that theoretical possibility of exit is expressly restricted by executive instructions and by refusal of foreign exchange. We have, thereforee, no hesitation to hold that an Indian passport is factually a necessary condition for travel abroad and without it no person residing in India can travel outside India.'
(13) Similarly the rights of citizens arc highlighted in paragraphs 12 and 13 of the judgment which may also be reproduced as under:
'12.The want of a passport in effect prevents a person leaving India.Whether we look at it as a facility given to a person to travel abroad or as a request to a foreign country to give the holder diplomatic protection, it can- not be denied that the Indian Government, by refusing a permit to a person residing in India, completely prevents him from traveling abroad. If a person living in India, whether he is a citizen or not, has a right to travel abroad, the Government by withholding the passport can deprive him of his right. thereforee, the real question in these writ petitions is: whether a person living in India has a fundamental right to travel abroad?
13.The relevant Article of the Constitution is Article 21. It reads: 'Article 21. No person shall be deprived of his life or personal liberty except according to procedure established by law'. If the right to travel is a part of the personal liberty of a person he cannot be deprived of his right except according to the procedure established by law. This court in Gopalan's case, : 1950CriLJ1383 has held that 'law' in that article means enacted law and it is conceded that the State has not made any law depriving or regulating the right of a person to travel abroad.'
(14) The law is next elucidated in the case of Mrs. Maneka Gandhi (supra). Paragraph 3 reads as follows:
'3.Before we examine the rival arguments urged on behalf of the parties in regard to the various questions arising in this petition, it would be convenient to set out the relevant provisions of the Passports Act, 1967. This Act was enacted on June 24, 1967 in view of the decision of this Court in Satwant Singh Sawhney v. D.Ramarathnam, Assistant Passport Officer, Government of India, New Delhi. The position which obtained prior to the coming into force of this Act was that there was no law regulating the issue of passports for leaving the shores of India and going abroad. The issue of passports was entirely within the discretion of the executive and this discretion was unguided and unchannelled. This Court, by a majority, held that the expression 'personal liberty' in Article 21 lakes in the right of locomotion and travel abroad and under Article 21 no person can be deprived of his right to go abroad except according to the procedure established by law and since no law had been made by the State regulating or prohibiting the exercise of such right, the refusal of passport was in violation of Article 21 and moreover the discretion with the executive in the matter of issuing or refusing passport being unchannelled and arbitrary, it was plainly vocative of Article 14 and hence the order refusing passport to the petitioner was also invalid under that article. This decision was accepted by Parliament and the infirmity pointed out by it was set right by the enactment of the Passports Act 1967. This Act, as its Preamble shows, was enacted to provide for the issue of passports and travel documents to regulate the departure from India of citizens of India and other persons and for incidental and ancillary matters, Section 3 provides that no person shall depart from or attempt to depart from India unless he holds in this behalf a valid passport or travel document. What are the different classes of passports and travel documents which can be issued under the Act is laid down in Section 4. Section 5, sub-section (1) provides for making of an application for issue of a passport or travel document or for endorsement on such passport or travel document for visiting foreign country or countries and sub-section (2) says that on receipt of such application, the passport authority, after making such inquiry, if any, as it may consider necessary, shall, by order in writing, issue or refuse to issue the passport or travel document or make or refuse to make on the passport or travel document endorsement in respect of one or more of the foreign countries specified in the application. Sub-section (3) requires the passport authority, where it refuses to issue the passport or travel document or to make any endorsement on the passport or travel document, to record in writing a brief statement of its reasons for making such order. Section 6, sub-section (1) lays down the grounds on which the passport authority shall refuse to make an endorsement for visiting any foreign country and provides that on no other ground the endorsement shall be refused. There are four grounds set out in this sub-section and of them, the last is that, in the opinion of the Central Government, the presence of the applicant in such foreign country is not in the public interest. Similarly sub-section (2) of Section 6 specifies the grounds on which alone-and on no other grounds-the passport authority shall refuse to issue passport or travel document for visiting any foreign country and amongst various grounds set out there, the last is that, in the opinion of the Central Government the issue of passport or travel document to the applicant will not be in the public interest. Then we come to Section 10 which is the material section which falls for consideration. Sub-section (1) of that section empowers the passport authority to vary or cancel the endorsement of a passport or travel document or to vary or cancel the conditions subject to which a passport or travel document has been issued, having regard inter alia, to the provisions of sub-section (1) of section 6 or any notification under Section 19. Sub-section (2) confers powers on the passport authority to vary or cancel the conditions of the passport or travel document on the application of the holder of the passport or travel document and with the previous approval of the Central Government. Sub-section (3) provides that the passport authority may impound or cause to be impounded or revoke a passport or travel document on the grounds set out in clauses (a) to (h). The order impounding the passport in the present case was made by the Central Government under clause (c) which reads as follows: (c) If the passport authority deems it necessary so to do in the interest 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; The particular ground relied upon for making the order was that set out in the last part of clause (c), namely, that the Central Government deems it necessary to impound the passport 'in the interests of the general public'. Then follows sub-section (5) which requires the passport authority impounding or revoking a passport or travel document or varying or cancelling an endorsement made upon it to 'record in writing a brief statement of the reasons for making such order and furnish to the holder of the passport or travel document on demand a copy of the same unless, in any case, the passport authority is of the opinion that it will non be 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 to furnish such a copy'. It was in virtue of the provision contained in the latter part of this sub-section that the Central Government declined to furnish a copy of the statement of reasons for impounding the passport of the petitioner on the ground that it was not in the interests of the general public to furnish such copy to the petitioner. It is indeed a matter of regret that the Central Government should have taken up this attitude in reply to the request of the petitioner to be supplied a copy of the statement of reasons, because ultimately, when the petition came to be filed, the Central Government did disclose the reasons in the affidavit in reply to the petition which shows that it was not really contrary to public interest and if we look at the reasons given in the affidavit in reply, it will be clear that no reasonable person could possibly have taken the view that the interests of the general public would be prejudiced by the disclosure of the reasons. This is an instance showing how power conferred on a statutory authority to act in the interests of the general public can sometimes be improperly exercised. If the petitioner had not filed the petition, she would perhaps never have been able to find out what were the reasons for which her passport was impounded and she was deprived of her right to go abroad. The necessity of giving reasons has obviously been introduced in sub-section (5) so that it may act as a healthy check against abuse or misuse of power. If the reasons given are not relevant and there is no nexus between the reasons and the ground on which the passport has been impounded, it would be open to the holder of the passport to challenge the order impounding it in a Court of law and if the court is satisfied that the reasons are extraneous or irrelevant, the Court would strike down the order. This liability to be exposed to judicial scrutiny would by itself act as a safeguard against improper or mala fide exercise of power. The Court would, thereforee, be very slow to accept, without close scrutiny, the claim of the passport authority that it would not be in the interests of the general public to disclose the reasons. The passport authority would have to satisfy the Court by placing proper material that the giving of reasons would be clearly and indubitably against the interests of the general public and if the Court is not so satisfied, the Court may require the passport authority to disclose the reasons, subject to any valid and lawful claim for privilege which may be set up on behalf of the Government. Here in the present case, as we have already pointed out, the Central Government did initially claim that it would be against the interests of the general public to disclose the reasons for impounding the passport, but when it came to filing the affidavit in reply, the Central Government very properly abandoned this unsustainable claim and disclosed the reasons. The question whether these reasons have any nexus with the interests of the general public or they are extraneous and irrelevant is a matter which we shall examine when we deal with the arguments of the parties. Meanwhile, proceeding further with the resume of the relevant provisions, reference may be made to Section 11 which provides for an appeal inter alias against the order impounding or revoking a passport or travel document under subsection (3) of Section 10. But there is a proviso to this section which says that if the order impounding or revoking a passport or travel document is passed by the Central Government, there shall he no right of appeal. These are the relevant provisions of the Act in the light of which we have to consider the constitutionality of sub-section (3)(c) of Section 10 and the validity of the order impounding the passport of the petitioner.'
(15) The constitutional requirement of an order passed under Section 10(3)(c) of the Act is further dealt with in paragraph 35 which may be referred to as below:
'35.But that docs not mean that an order made under Section 10(3)(c) may not violate Article 19(l)(a) or (g). While discussing the constitutional validity of the impugned order impounding the passport of the petitioner, we shall have occasion to point out that even where a statutory provision empowering an authority to lake action is constitutionally valid, action taken under it may offend a fundamental right and in that event, though the statutory provision is valid, the action may be void. thereforee, even though 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 inevitable effect of an order impounding a passport may, in a given case, be to abridge or take away freedom of speech and expression or the right to carry on a profession and where such is the case, the order would be invalid, unless saved by Article 19(2) or Article 19(6). Take for example, a pilot with international flying licence. International flying is his profession and if his passport is impounded, it would directly interfere with his right to carry on his profession and unless the order can be justified on the ground of public interest under Article 19(6), it would be void as offending Article 19(1)(g). Another example may be taken of an evangelist who has made it a mission of his life to preach his faith to people all over the world and for that purpose, sets up institutions in different countries. If an order is made impounding his passport, it would directly affect his freedom of speech and expression and the challenge to the validity of the order under Article 19(l)(a) would be unanswerable unless it is saved by Article 19(2). We have taken these two examples only by way of illustration. There may be many such cases where the restriction imposed is apparently only on the right to go abroad but the direct and inevitable consequence is to interfere with the freedom of speech and expression or the right to carry on a profession. A musician may want to go abroad to sing, a dancer to dance, a visiting professor to teach and a scholar to participate in a conference or seminar. If in such, a case his passport is denied or impounded, it would directly interfere with his freedom of speech and expression. If a correspondent of a newspaper is given a foreign assignment and he is refused passport or his passport is impounded, it would be direct interference with his freedom to carry on his profession. Examples can be multiplied, but the point of the matter is that though the right to go abroad is not a fundamental right, the denial of the right to go abroad may, in truth and in effect, restrict freedom of speech and expression or freedom to carry on a profession so as to contravene Article 19(1)(a) or 19(1)(g). In such a case, refusal or impounding of passport would be invalid unless it is justified under Article 19(2) or Article 19(6), as the case may be. Now, passport can be impounded under Section 10(3)(e) 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. The first three categories are the same as those in Article 19(2) and each of them, though separately mentioned, is a species within the broad genus of 'interests of the general public'. The expression 'interests of the general public' is a wide expression which covers within its broad sweep all kinds of interests of the general public including interests of The sovereignty and integrity of India, security of India and friendly relations of India with foreign States. thereforee, when an order is made under Section 10(3)(c), which is in conformity with the terms of that provision, it would be in the interests of the general public and even if it restricts freedom to carry on a profession, it would be protected by Article 19(6). But if an order made under Section 10(3)(c) restricts freedom of speech and expression, it would not be enough that it is made in the interests of the general public. It must fall within the terms of Article 19(2) in order to earn the protection of that article. If it is made in the interests of the sovereignty and integrity of India or in the interests of the security of India or in the interests of friendly relations of India with any foreign country, it would satisfy the requirement of Article 19(2). But if it is made for any other interests of the general public save the interests of 'public order, decency or morality', it would not enjoy the protection of Article 19(2). There can be no doubt that the interests of public order, decency or morality arc 'interests of the general public' and they would be covered by Section 10(3)(c), but the expression 'interests of the general public', is, as already pointed out, a much wider expression and, thereforee, in order that an order made under section 10(3)(c) restricting freedom of speech and expression, may not fall foul of Article 19(1)(a), it is necessary that in relation to such order, the expression 'interests of the general public' in Section 10(3)(c) must be read down so as to be limited to interests of public order, decency or morality. If an order made under Section 10(3)(c) restricts freedom of speech and expression, it must be made not in the interests of the general public in a wider sense, but in the interests of public order, decency or morality, apart from the other three categories, namely, interests of the sovereignty and integrity of India, the security of India and friendly relations of India with any foreign country. If the order cannot be shown to have been made in the interests of public order, decency or morality, it would not only contravene Article 19(l)(a), but would also be outside the authority conferred by Section 10(3)(c).'
(16) The facts of the present case now be examined. The petitioner is, admittedly, the wife of one Iqbal Memon whose properties have been frozen by The Narcotics Cell, Mumbai and the necessary proceedings are alleged to be in progress. The only ground which is slated in the order impounding the passport is that if the petitioner comes to Mumbai/India which is likely, she may secretly dispose of the properties in her name and also the properties in the name of lqbal Memon. Similarly, the Appellate Authority has confirmed the Order of impounding the passport by rejecting the plea of the petitioner that the case against her husband lqbal Memon @ Iqbal Mirchi should not be a ground against his wife as according to the reports of the Central Agencies the properties belonging to the petitioner which are in her own name and are separate and independent from those of her husband have also been frozen by the Narcotics Cell Mumbai. The Appellate Authority has merely affirmed the noting of the respondents and has not applied its mind to the mailer in issue. The record, however, indicates that the only ground on which the passport of the petitioner has been impounded is the one which has already been referred to above that the petitioner may secretly dispose of the properties in her name and also the properties in the name of her husband. The question now arises as to whether the order impounding the passport is mala fide or that the reasons for making the order are extraneous or they have no relevance or they cannot possibly support the making of the order in the interests of the general public. The order dated September 25, 1996 impounding the passport does not give any reason's for making such an order now the Appellate Authority has applied its mind relevant to the issues. There is, thereforee, total non-application of mind. The usual position is that in case a person travels to India and his or her passport is impounded this will obviously deny him or her right to leave this country so that in case some actions arc contemplated he or she may be available. The admitted facts in this case are that there is no case which is pending against the petitioner. The plea that her husband is holed up in London from where he has not been extradited for the alleged crime he has committed in India cannot also form the ground on which the order of impounding the passport of the petitioner can be justified.
(17) The provisions of Section 10(3) of the Act which makes it mandatory for reasons to be recorded in writing, have not been complied with and the impugned action cannot be sustained on this basis as well. The Order of the Appellate Authority specifics no better reasons to support the Order. The law is well settled by the judgments as cited above that the reasons have to be communicated to the petitioner for impounding and refusal of issuance of the passport. This has not been done in the present case. The writ petition was filed in this Court and respondents have hurriedly issued the impugned Order which will indicate that the reasons now staled arc extraneous and irrelevant. thereforee, the Court in this situation has no choice but to strike down the impugned orders as the plea of the Passport Authority that it would not be in the interest of the general public to disclose the reasons, has nol been substantiated by any cogent grounds. The learned counsel for the respondents has also nol been able to support the order on the basis of law as referred to in the judgments cited above. The reliance on the judgment as reported in Union of India & others v. Smt. Charanjit Kaur : [1987]1SCR1080 to reiterate that the respondents are at liberty to impound the passport of the wife of an alleged extremist leader stationed abroad is misplaced. That case was rendered on its own facts and relevant material was placed on record for taking action under Section 10(3) (c) of the Act. The impounding Order was issued while the wife was in this country for her alleged links which were held against the interests of general public.
(18) The impugned Orders in view of the above reasons cannot, thereforee, be sustained and have to be set aside. It is always, however, open for the respondents to exercise powers under Section 10 of the Act to vary or cancel the endorsements on the passport or travel documents and may vary or cancel the conditions subject to which passport or travel documents have been issued by following the procedure as permissible in law.
(19) The writ petition is allowed in the above terms and the Orders dated September 25, 1996 and January 1, 1977 are, accordingly, 'set aside. There will be no order as to costs.