Law Web: Kerala HC: Passport Authorities have no power to impose penalties or fine for violation of passport Act

1) The poignant question raised is whether an authority under the Passports Act, 1967, has any power to impose penalty/fine invoking the powers under Section 12 of the Act 1967. It is submitted by the petitioners that as per relevant provisions of the Passports Act, 1967, a passport authority

defined under Section 2(c) of the Act has only delegated powers to issue

passport under Section 5(2)(a) or reject an incomplete passport

application under Section 5(2)(c) or refuse a passport under Section 6(2)

or restrict the validity under Section 7(b) or impound/revoke a passport

under Section 10(3) of the said Act, and not to impose any penalty.

2) Taking into account the rival submissions made across the Bar,

our endeavour is to find out the legal purport of Section 12 of the Act

1967 extracted above. On a reading of Section 12(1), it is clear that

offences and penalties are prescribed for contravention of the provisions of Section 3 or for the reasons enumerated thereunder, which shall be punishable with imprisonment for a term prescribed thereunder or with fine prescribed thereunder or with both. Therefore, it is evident from the

provisions that in the event of any person found guilty, he is liable to be

punished with an imprisonment for a term prescribed thereunder or in

the alternative to impose fine prescribed thereunder or with both.

Therefore, on a deeper analysis of the provision, it is amply clear that the

passport issuing authority or any of the authorities under the Act, 1967

are given powers under the Passports Act, 1967 or Rules framed

thereunder, to initiate prosecution for the contravention of the provisions

of the Passports Act, 1967. A reading of the provision further shows

that, the power to punish with imprisonment is conferred only to the

Magistrates as provided under the Code of Criminal Procedure. Fine as

an alternative to imprisonment on finding guilty, can only be imposed by

the competent Magistrate who adjudicates the issue on the basis of any

complaint filed by the passport authority. Therefore, it is unequivocal that the passport authority is not vested with

any powers under Section 12 to impose any fine on any person who

commits any offence in contemplation of Section 12 of the Act 1967.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE CHIEF JUSTICE MR.S.MANIKUMAR

MR. JUSTICE SHAJI P.CHALY

WP(C).No.7945 OF 2018(S)

CITIZENS LEGAL RIGHT ASSOCIATION Vs UNION OF INDIA

Dated this the 2nd day of June, 2020

S.Manikumar, CJ.

This is a public interest litigation filed by an organisation registered

apparently under the provisions of the Travancore - Cochin Literary,

Scientific and Charitable Societies Registration Act, 1955, and one of its

members. The issues raised arise under the Passports Act, 1967. The

poignant question raised is whether an authority under the Passports Act,

1967, has any power to impose penalty/fine invoking the powers under

Section 12 of the Act 1967. It is submitted by the petitioners that as per

relevant provisions of the Passports Act, 1967, a passport authority

defined under Section 2(c) of the Act has only delegated powers to issue

passport under Section 5(2)(a) or reject an incomplete passport

application under Section 5(2)(c) or refuse a passport under Section 6(2)

or restrict the validity under Section 7(b) or impound/revoke a passport

under Section 10(3) of the said Act, and not to impose any penalty.

2. The case projected by the petitioners is that there is no

provision empowering any officer to impose pecuniary penalty under the

Act 1967, even though Section 12 of the Act prescribes offences and

penalties, and the manner in which the power to be discharged, in

accordance with the adjudicatory mechanism prescribed thereunder.

According to the petitioners, even without the power for imposing any

fine in violation of the provisions of Sections 5, 6, 7 and 10, the fine is

being imposed by the authorities which is arbitrary and illegal. It is also

pointed out that the offences and penalties under Section 12 of the Act

1967 are criminal in nature and a passport authority is not empowered to

launch a criminal investigation against the passport applicants/holders

who allegedly commit/committed offences under Section 12 of the Act.

That apart, as per Section 15 of the Act 1967, the sanction for

prosecution for any offence under the Act 1967 can only be given by the

Government of India or any authority authorised by the Government of

India. It is pointed out that the said power has been delegated to the

State Governments as per GSR 662(E) dated 1.12.1979.

3. Therefore, the sum and substance of the contention put forth

by the petitioners is that the legal requirement under Section 15 makes it

vivid and explicit that the passport authority is not empowered to initiate

any prosecution under Section 12(1)(b). So also, it is submitted that the

High Court of Gujarat as well as the High Court of Delhi had occasion to

consider the issue and held that the authority under the Passports Act

invoking Section 12 of the Act 1967 has no power to impose penalty.

Petitioners have also produced various documents to establish that the Government of India has understood the issue in its proper perspective and it is accordingly that Ext.P11 Memorandum dated 16.12.2015 is issued, wherein it is stated that the Ministry intends to review and to

amend the Passports Act, 1967 and Rules made thereunder, in the wake

of the judgment of the High Court of Delhi dated 12.4.2013 in W.P.

(C)No.5818 of 2011. Therefore, it is ordered that “It is of the considered

view of the Department of Legal Affairs not to file an appeal against the

impugned order dated 12/04/2013 but to amend the Passports Act, 1967

to the extent to incorporate the provision as regards institution of

adjudicating authority in the Act to exercise the power of imposing the

pecuniary penalty on the violators of the Passports Act, 1967 so that the

power to levy as well as collect the pecuniary penalty in terms of Section

12 of the Act could be exercised by the passport authority itself”. So

much so, as per the Office Memorandum, suggestions were sought from

the passport issuing authorities with regard to the amendment of the

Passports Act, 1967. A time limit is also prescribed thereunder for the

suggestions/comments as required under the memorandum.

4. A detailed counter affidavit is filed by the Union of India and its

officials refuting the averments, claims and demands raised by the

petitioners. Among other contentions it is submitted that Section 12 of

the Passports Act speaks about offences and penalties but does not

specify the adjudicating authorities. However, it does not exclude the

Government/passport authority from taking decisions regarding levying

penalties. That apart, it is submitted that levying penalty is just one

among the many steps involved in processing applications as per Section

5 or 7 or 10 of the Passports Act, 1967 and it cannot be viewed as a

stand-alone procedure. Accordingly, the case put forth by the

respondents is that a penalty needs to be imposed on such applicants for

suppressing such material facts from the purview of the passport

authority, while submitting the application for issuance of passport.

Therefore, the penalty is used as a deterrent against such deliberate

suppression of information and if the applicant is not satisfied with the

penalty imposed, the applicant is at liberty to prefer an appeal to the

Government of India as prescribed under the statute. It is also pointed

out that Section 12 of the Passports Act, 1967 deals with offences of

varying degrees from suppression of personal information such as spouse

name, marital status, date of birth, address details, etc. for the purpose

of impersonation and forgery, and therefore, initiation of prosecution in

all such cases is not feasible due to the large number of applications

received at the Passport offices. It is also submitted that most of the

cases registered are compoundable in nature by levying penalty and if

the issue is left unchecked, such suppression would affect the quality of services and denigrate the passport issuance system and therefore seeks dismissal of the writ petition.

5. A reply affidavit is filed by the petitioners reiterating the stand

adopted and also producing an order issued by the Ministry of External

Affairs, Government of India dated 31.10.2016, addressed to the

Passport Officer, Passport Office, Surat, whereby the Regional Passport

Officer, Surat was requested/advised to stop the practice of levying

penalty of Rs.5,000/- for incomplete applications treating it as a case of

suppression of material information immediately and the application fee

was directed to be refunded to the applicants in terms of the statutory

provisions of Rule 10(1) of the Passports Rules, 1980. It is also stated

thereunder that the Passport Officer, Surat has adopted a wrong practice

by imposing a pecuniary penalty on incomplete applications as there is

no such provision existing in the Passports Act, 1967.

6. We have heard learned counsel for the petitioners and the

learned Central Government Counsel and perused the pleadings and the

documents on record.

7. The subject issue revolves around Sections 3, 5, 6 and 10 read

with Section 12 of the Passports Act, 1967. They read thus:

“3. Passport or travel document for departure from

India.- No person shall depart from, or attempt to depart from

India, unless he holds in this behalf a valid passport or travel

document.

Explanation.- For the purposes of this section,-

(a) "passport" includes a passport which having been

issued by or under the authority of the Government of a foreign

country satisfies the conditions prescribed under the Passport

(Entry into India) Act, 1920 (34 of 1920) in respect of the class

of passports to which it belongs;

(b) "travel document" includes a travel document which

having been issued by or under the authority of the

Government of a foreign country satisfies the conditions

prescribed.

5. Applications for passports, travel documents, etc.,

and orders 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.

Explanation.- 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.

(1-A) 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.

(1-B) 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 documents 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

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.

6. Refusal of passports, travel documents, etc.- (1)

Subject to the other provisions of this Act, the passport authority

shall refuse to make an endorsement for visiting any foreign

country under clause (b) or clause (c) of sub-section (2) of

section 5 on any one or more of the following grounds, and no

other ground, namely: -

(a) that the applicant may, or is likely to, engage in such

country in activities prejudicial to the sovereignty and integrity of

India;

(b) that the presence of the applicant in such country may,

or is likely to, be detrimental to the security of India;

or is likely to, prejudice the friendly relations of India with that

or any other country;

(d) that in the opinion of the Central Government the

presence of the applicant in such country is not in the public

interest.

(2) Subject to the other provisions of this Act, the passport

authority shall refuse to issue a passport or travel document for

visiting any foreign country under clause (c) of sub-section (2) of

section 5 on any one or more of the following grounds, and on

no other ground, namely: -

(a) that the applicant is not a citizen of India;

(b) that the applicant may, or is likely to, engage outside India

in activities prejudicial to the sovereignty and integrity of India;

to, be detrimental to the security of India;

(d) that the presence of the applicant outside India may, or is

likely to, prejudice the friendly relations of India with any foreign

country;

(e) that the applicant has, at any time during the period of five

years immediately preceding the date of his application, 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;

(f) that proceedings in respect of an offence alleged to have

been committed by the applicant are pending before a criminal

court in India;

(g) that a warrant or summons for the appearance, or a

warrant for the arrest, of the applicant has been issued by a

court under any law for the time being in force or that an order

prohibiting the departure from India of the applicant has been

made by any such court;

(h) that the applicant has been repatriated and has not

reimbursed the expenditure incurred in connection with such

repatriation;

(i) that in the opinion of the Central Government the issue of a

passport or travel document to the applicant will not be in the

public interest.

10. Variation, impounding and revocation of passports

and travel documents.-

(1) The passport authority may, having regard to 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

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 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.

(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

thereunder 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 of revocation.

12. Offences and penalties.- (1) Whoever-

(a) contravenes the provisions of section 3; or

(b) knowingly furnishes any false information or suppresses

any material information with a view to obtaining a passport or

travel document under this Act or without lawful authority alters

or attempts to alter or causes to alter the entries made in a

passport or travel document; or

document (whether issued under this Act or not) when called

upon to do so by the prescribed authority; or

(d) knowingly uses a passport or travel document issued to

another person; or

(e) knowingly allows another person to use a passport or

travel document issued to him,

shall be punishable with imprisonment for a term which may

extend to two years or with fine which may extend to five

thousand rupees or with both.

(1-A) Whoever, not being a citizen of India,-

(a) makes an application for a passport or obtains a

passport by suppressing information about in nationality, or

(b) holds a forged passport or any travel document,

shall be punishable with imprisonment for a term which shall

not be less than one year but may extend to five years and with

fine which shall not be less than ten thousand rupees but which

may extend to fifty thousand rupees or with both.

(2) Whoever abets any offence punishable under subsection

(1) or sub-section (1A) shall, if the act abetted is

committed in consequence of the abetment, be punishable with

the punishment provided in that sub-section for that offence.

(3) Whoever contravenes any condition of a passport or

travel document or any provision of this Act or any rule made

thereunder for which no punishment is provided elsewhere in

this Act shall be punishable with imprisonment for a term which

may extend to three months or with fine which may extend to

five hundred rupees or with both.

(4) Whoever, having been convicted of an offence under

this Act, is again convicted of an offence under this Act shall be

punishable with double the penalty provided for the latter

offence.”

8. The contention put forth by the learned counsel for the

petitioners is that even if there is any violation of the provisions of the

Act 1967 and Rules thereto, there is no power vested with any of the

passport authorities under the Act 1967, to impose penalty. On the other

hand, learned Central Government Counsel submitted that it is not

possible to launch prosecution in each and every case, since the Regional

Passport Authorities would have to handle thousands and thousands of

passport applications and launching prosecution is a time consuming

process and therefore, if the officers are not permitted to impose penalty

in contemplation of Section 12 of the Act 1967, the passport authority

would find it difficult to maintain the object and intend of the parliament

to regulate the issuance of passport and travel documents.

9. Taking into account the rival submissions made across the Bar,