S.K. Gupta, J.
1. The petitioner has approached the Court seeking the quashment of reference No. 402/1907/2000 dated 26/04/2002 whereby the passport facility has been declined to the petitioner by the Passport Officer, Jammu, respondent No. 3 and also quashment of order No. VIII/402/App-109/02 dated 15/07/2002 in rejecting the appeal of the petitioner for restoration of passport facility by respondent No. 2, by issuance of a writ in the nature of certiorari; with a further direction to respondents 1 to 3 to issue passport in favour of the petitioner by a writ in the nature of mandamus, in invoking the writ jurisdiction under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir.
2. The case of the petitioner, as projected in the writ petition, is that he is an Advocate practising at District Courts, Doda, for the last 30 years. The petitioner further stated to have been issued Indian Passport bearing No. 464744 dated 30/01/1982. On the expiry of the aforesaid passport, the petitioner applied for fresh passport, which facility was provided to him that remained valid upto 09/02/1993. According to the petitioner, he applied for the grant of passport facility by making an application on 29/03/2000 after completing all the requisite formalities. The application is also stated to have been accompanied by the previous passport, the validity of which was upto 09/02/1993. The delay in issuance of passport prompted the petitioner to issue notice to respondent No. 3 on 19/03/2001 requesting the restoration of the passport facility. The petitioner was informed by respondent No. 3 vide communication No. 402/1907/2000 dated 23/03/2001 that the police verification was awaited. When the passport was not issued to the petitioner despite repeated requests, writ petition (OWP NO:-48/2002) came to be filed seeking a direction for issuance of passport to the petitioner by the respondents. The writ petition was, however, disposed of by the Court vide its judgment and order date 14/03/2002 with the observation that the prayer of the petitioner be considered in the light of the judgment of Apex Court in case of Smt. Maneka Gandhi v. Union of India and Anr. reported as AIR 1978 SC 597 and in case the prayer of the petitioner is to be rejected then a speaking order would be passed. It was further observed that this exercise would be done by the respondents within a period of six weeks from the date copy of the order is made available by the petitioner to the respondents.
3. The Passport Officer, respondent No. 3, vide its order dated 26/04/2002, however, declined to grant the passport facility to the petitioner on the basis of adverse report received from the Police Authority depicting that the petitioner has been pursuing activities which are prejudicial to the integrity of the country and all along been indulging in negative activities, in exercise of powers under Section 5(2)(c) of the Passport Act, 1967. This order was appealed against by the petitioner before the Appellate Authority, respondent No. 2, for restoration of passport facility under Section 11 of the Passport, Act, 1967. The appeal, however, stood dismissed by the Appellate Authority vide order dated 15/07/2002 and upheld the decision of the Passport Officer, Jammu, denying the passport facility to the petitioner.
4. Aggrieved by the aforesaid impugned orders passed by the Passport Officer and also the Appellate Authority under the Passport Act, 1967, the petitioner has challenged its correctness in the writ petition on the ground that the basis of refusal to issue the passport to the petitioner is contrary to the record, illegal and mala fide. It is further stated that adverse reports allegedly issued by the police authorities have never been provided to the petitioner nor any opportunity of being heard was afforded to him and, thus, exercise of powers in denying issuance of passport to the petitioner was in violation of principle of 'audi-alteram-partem'. The petitioner further stated that neither any F.I.R. stands registered nor any case is pending against the petitioner in any Court. That right to go abroad has been recognized as a fundamental right and one cannot enjoy this fundamental right without obtaining a valid passport under the Passport Act, 1967, and further stated that the impugned orders being violative of Article 226 of the Constitution of India, arbitrary and smack of principle of reasonableness.
5. In repelling the contention of the petitioner, the stand of the respondents in their demurrer is that the passport facility has been declined to the petitioner on the basis of report of the police authorities That the report of the police depicted that the petitioner having been indulged in negative activities and pursuing activities which are prejudicial to the integrity of the country. Even the appeal of the petitioner did not merit acceptance with the competent authority who, after examining the record, upheld the order of the Passport Officer, Jammu, respondent No. 3, in declining to grant the passport to the petitioner. It is further stated that the verification report provided by the police authorities is based on information and the report provided by their field staff and relied upon annexure-1 to the reply filed by the respondents. It was also asserted by the respondents that the order refusing to grant passport facility to the petitioner is well reasoned speaking order and does not suffer from any infirmity.
6. After hearing learned counsel for the parties, the petition is admitted to be heard and taken up for final disposal on the consensus of learned counsel appearing for the respective parties. Mr. S. S. Nanda, learned Sr. CGSC appearing for the respondents, submitted that reply already filed be treated as counter. Prayer is allowed.
7. It is not in dispute that the petitioner is a practising lawyer in the District Courts, Doda, for the last 30 years. He was a passport holder in the year 1982 which expired on 30/01/1987. Fresh passport was issued after the expiry of the aforesaid passport and its validity was upto 09/02/1993. These averments of the petitioner in the writ petition have also not been specifically denied by the respondents in their reply. The passport facility has been denied to the petitioner on the ground of his antecedents that the petitioner has been pursuing the activities which are prejudicial to the integrity of the country and also indulging in negative activities. It is not the case of the respondents that any F.I.R. stands registered against him or any case is pending against the petitioner in any Court. Annexure relied upon by the respondents appended with the reply pertains to the antecedents reported to the police agencies by their field staff. The report further reveals that the petitioner was an active member of outlawed Plebiscite Front which earned him detention in the year 1969. It is further stated that he is a person of strong communal feelings and has been covertly pursuing activities prejudicial to the integrity of the country. During May, 1992, he aligned himself with a militant outfit (Al-Jihad) and arranged finances for the militants and also became its advisor. The petitioner is stated to have gone underground to evade his arrest. The report further reveals that in consideration of the fragile security scenario, it is not advisable to issue passport facility to the said individual, as it is apprehended that he may misuse this facility to subvert the law and rules.
8. It is pertinent to point out that annexure-1 to the reply pertains to the activities of the petitioner prior to the issuance of passport in the year 1982 which expired on 30/01/1987 and then fresh passport issued which remained valid upto 09/02/1993. It is not understandable if all these grounds existed at the relevant point of time in the police verification report which form the basis of denial of passport facility to the petitioner by the impugned orders, what made the competent authorities to issue the passports earlier initially in the year 1982 and then a fresh passport after its expiry which remained valid upto 09/02/1993. No material has been placed before the Court nor annexed with the reply to show the basis for such opinion by the police authorities.
9. It is settled proposition laid down by the Apex Court in 'Smt. Maneka Gandhi v. Union of India and Anr.' (Supra) that Article 21 of the Constitution safeguards the right to go abroad against executive interference which is not supported by law; and law here means 'enacted law' or 'State law'. That no person can be deprived of a right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the is effected strictly in accordance with such procedure. The power conferred on the Passport Authority to refuse a passport cannot be said to be unguided or unfettered. The exercise of this power is not made dependent on the subjective opinion of the Passport Authority as regards the necessity of exercising it on one or more of the grounds stated in Section 5(2)(c). It is mandatorily required under Section 5(3) that where the Passport Authority makes an order under Clause (b) or (c) of Sub-section (2) viz. refusing to avail the passport facility 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. The refusal can be made on the passport or travel document by an endorsement by the Passport Officer only on the grounds expressly specified under Section 6 of the Passport Act, 1967.
10. Mr. S. S. Nanda, learned Sr. CGSC appearing for the respondents, however, could not justify that the antecedents, which exit prior to the issuance of passport initially in the year 1982 which remained valid upto 30/01/1997 and subsequently a fresh passport was also issued with its validity upto 09/02/1993, could be taken as ground on the basis of which the restoration of passport facility could be refused to the petitioner. Mr. Nanda, Sr. CGSC, also candidly conceded that against the detention order No. 1/PDA/69 dated 18/07/1969, the petitioner had filed Writ Petition No. 52/1969 in the High Court and the said petition was allowed on 21/10/1969 and the petitioner was directed to be released forthwith.
11. It is not a vailed argument put across by Mr. S. S. Nanda, learned Sr. CGSC appearing for the respondents, that the expression 'personal liberty' in Article 21 must be so interpreted as to avoid overlapping between that Article and Article 19(1). The expression 'personal liberty' in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19. Article 21, though so framed as to appear as a shield operating negatively against executive encroachment or covered by that shield, is in fact the legal recognition of both the protection or the shield as well as of what it protects which lies beneath that shield. In the absence of any material placed on record which formed the basis of the verification report of the police, it can conveniently be said that the case of the petitioner has not been justly and reasonably dealt with.
12. The Petitioner has been denied passport facility solely on the ground of police report with regard to his antecedents for the period during which he was already holding the passport. To support the police report that the petitioner is pursuing the activities prejudicial to the security of the country or indulging in negative activities, no material has been placed before the Court to show the basis for forming such opinion.
13. Such being the circumstances, I can not but hold that no justification exists for refusing the passport to the petitioner on the ground of his antecedents. The writ petition, therefore, is allowed and the Regional Passport Officer is directed to grant passport applied for, to the petitioner within a period of three months from today.
Disposed of.