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CASE NO.: Appeal (crl.)  179 of 2008

PETITIONER: SURESH NANDA

RESPONDENT: C.B.I.

DATE OF JUDGMENT: 24/01/2008

BENCH: P.P. NAOLEKAR & MARKANDEY KATJU

JUDGMENT: JUDGMENT

O R D E R   [ ARISING OUT OF S.L.P.(CRL.) 3408 OF 2007 ] 1.      Leave granted.                   

2.      The appellant claims to be a non-resident Indian settled in United Kingdom for the  last 23 years.  The passport of the appellant as well as other documents were seized by  the  respondent from 4, Prithviraj Road, New Delhi in a search conducted on 10.10.2006  when the appellant was on a visit to India.  The said search and seizure was pursuant to  an F.I.R. dated 9.10.2006 registered on the basis of a sting operation carried out by a  news portal in the year 2001. The passport seized  during the search  was retained by  the C.B.I. officials.  An application was moved by the appellant  before the Special  Judge, C.B.I., Patiala House Courts, New Delhi praying for release of his passport so  that he can travel abroad to London and Dubai for a period of 15 days.  The learned  Special Judge, by order dated 15.1.2007, directed the release of the passport to the   appellant by imposing upon him certain conditions.  Aggrieved against the order passed  by the learned Special Judge, C.B.I., the respondent preferred a Criminal Revision   before the High Court.  The High Court, by order dated 5.2.2007, reversed the order of  the learned Special Judge and refused to release the passport to the appellant.   Aggrieved against the order of the High Court, present appeal, by special leave, has  been preferred  by the appellant. 3.      Learned senior counsel appearing for the appellant submitted that the power and  jurisdiction to impound the passport  of any individual has to be exercised under the  Passports Act, 1967 (hereinafter referred to as \024The Act\024).  He specifically  referred  to  sub-section (3)(e) of Section 10 of the Act which reads as under: \023(3)  The passport authority may impound or cause to be impounded  or revoke a passport or travel document - (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:\024 Reference was also made to Section 10A of the Act  which has been introduced by Act  17/2002 w.e.f. 17.10.2001.

4.           Learned senior counsel for the appellant also placed reliance on the decision o f  5- Judge Bench of this Court in Satwant Singh Sawhney  Vs. D. Ramarathnam, Asstt.   Passport Officer (1967) 3 SCR  525 wherein in para 31, it was held as under:

\02331: For the reasons mentioned above, we would accept the view of  Kerala, Bombay and Mysore High Courts in preference to that  expressed by the Delhi High Court.  It follows that under Article 21 of  the Constitution no person can be deprived of his right to travel except  according to procedure established by law.  It is not disputed that no  law was made by the State regulating or depriving persons of such a  right.\024

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5.             A similar view is reiterated in the decision rendered by 7-Judge Bench of thi s  Court in Maneka Gandhi Vs. Union of India and another (1978) 1 SCC 248 wherein  at page 280, it was held as under:

\023....Now, it has been held by this Court in Satwant Singh’s case (supra)  that ’personal liberty’ within the meaning of Article 21 includes within  its ambit the right to go abroad and consequently no person can be  deprived of this right except according to procedure prescribed by law.   Prior to the enactment of the Passports Act, 1967, there was no law  regulating the right of a person to go abroad and that was the reason  why the order of the Passport Officer refusing to issue passport to the  petitioner in Satwant Singh’s case (supra) was struck down as invalid.   It will be seen at once from the language of Article 21 that the  protection it secures is a limited one.  It safeguards the right to go  abroad against executive  interference which is not supported by law;  and law   here means ’enacted law’ or  ’State law’ (Vide A.K. Gopalan’s  case).  Thus, no person can be deprived  of his right to go abroad  unless there is a law made by the State prescribing the procedure for so  depriving  him and the deprivation is effected strictly  in accordance  with such procedure.....\024    6.      On the other hand, learned Additional Solicitor General appearing for the  respondent submitted that the passport was  seized  and  impounded  by  exercising  the powers under Section 102 read with Sections 165 and 104 of Code of Criminal  Procedure (hereinafter referred to as \023the Cr.P.C.\024). He further contended that the  power to retain and impound the passport has been rightly exercised by the  respondent as there is an order dated 3.11.2006 passed by the learned Special Judge  for C.B.I. exercising the power under Section 104 of Cr.P.C.

7.      Sub-section (3)(e) of Section 10 of the Act provides for impounding of a  passport 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. Thus, the Passport Authority has the power to impound the passport  under  the Act. Section 102 of Cr.P.C. gives powers to the police officer to seize any  property which may be alleged or suspected to have been stolen or which may be  found under circumstances which create suspicion of the commission of any offence.  Sub-section (5) of  Section 165 of  Cr.P.C. provides that the copies of record made  under sub-section (1) or sub-section (3) shall forthwith be sent to the nearest  Magistrate empowered to take cognizance to the offence whereas  Section 104 of   Cr.P.C. authorizes the court to impound any document or thing produced before it  under the Code.  Section  165  of   Cr.P.C.  does  not  speak  about   the passport  which has been searched and seized as in the present case. It does not speak about  the documents found in search, but copies of the records prepared under sub-section  (1) and sub-section (3). \023Impound\024 means to keep in custody of the law.  There must  be some distinct action which will show that documents or things have been  impounded. According to the Oxford Dictionary \023impound\024 means to take legal or  formal possession.  In the present case, the passport of the appellant is in possession  of CBI right from the date it has been seized by the CBI. When we read Section 104  of Cr.P.C.  and Section 10 of the Act together, under Cr.P.C., the Court is  empowered to impound any document or thing produced before it whereas the Act  speaks specifically of impounding of the passport. 8.      Thus, the Act is a special Act relating to a matter of passport, whereas  Section 104 of the Cr.P.C. authorizes the Court to impound document or thing  produced before it. Where there is a special Act dealing with specific subject, resort  should be had to that Act instead of general Act providing for the matter connected  with the specific Act.  As the Passports Act is a special act, the rule that \023general  provision should yield to the specific provision\024 is to be applied.  See : Damji Valaji  Shah & another Vs. L.I.C. of India & others [AIR 1966 SC 135]; Gobind Sugar  Mills Ltd. Vs. State of Bihar & others [1999(7) SCC 76]; and Belsund Sugar Co.  Ltd.  Vs. State of Bihar and others [AIR 1999 SC 3125]. 9.      The Act being a specific Act whereas Section 104 of Cr.P.C. is a general provision  for impounding any document or thing, it shall prevail over that Section in the Cr.P.C.  as regards the passport.  Thus, by necessary implication, the power of Court to  impound any document or thing produced before it would exclude passport.

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10.     In the present  case, no steps have been taken under Section 10 of the Act which  provides for variation, impounding and revocation of the passports and travel  documents.  Section 10A of the Act which provides for an order to suspend with  immediate effect any passport or travel document; such other appropriate order which  may have the effect of rendering any passport or travel document invalid, for a period  not exceeding four weeks, if the Central Government or any designated officer on its  satisfaction holds that it is necessary in public interest to do without prejudice to the  generality of the provisions contained in Section 10 by approaching the Central  Government or any designated officer.  Therefore, it appears that the passport of the  appellant cannot be impounded except by the Passport Authority in accordance with  law.  The retention of the passport by the respondent (CBI) has not been done in  conformity with the provisions of law as there is no order of the passport authorities  under Section 10(3)(e)  or by the Central Government or any designated officer under  Section 10A of the Act to impound the passport by the respondent exercising the powers  vested under the Act. 11.     Learned Additional Solicitor General has submitted that the police has power to  seize a passport in view of Section 102(1) of the Cr.P.C. which states: \023Power of police officer to seize certain property:(1) Any police  officer may seize any property which may be alleged or suspected to  have been stolen, or which may be found under circumstances which  create suspicion of the commission of any offence\024. In our opinion, while the police may have the power to seize a passport under Section  102(1) Cr.P.C, it does not have the power to impound the same.  Impounding of a  passport can only be done by the  passport authority under Section 10(3) of the  Passports Act, 1967.

12.     It may be mentioned that there is a difference between seizing of a document and  impounding a document.  A seizure is made at a particular moment when a person or  authority takes into his possession some property which was earlier not in his  possession. Thus, seizure is done at a particular moment of time. However, if after  seizing of a property or document the said property or document is retained for some  period  of time, then such retention amounts to impounding of the property/or  document.  In the Law Lexicon by P. Ramanatha Aiyar (2nd  Edition), the word  \023impound\024 has been defined to mean \023to take possession of a document or thing for  being held in custody in accordance with law\024. Thus, the word \023impounding\024 really  means retention of possession of a good or a document which has been seized.

13.     Hence, while the police may have power to seize a passport under Section 102  Cr.P.C. if it is permissible within the  authority given under Section 102 of Cr.P.C., it  does not have power to retain or impound the same, because that can only be done by  the    passport authority under Section 10(3) of the Passports Act.  Hence, if the police  seizes a passport (which it has power to do under Section 102 Cr.P.C.), thereafter the  police must send it along with a letter to the passport authority clearly stating that the  seized passport deserves to be impounded for one of the reasons mentioned in Section  10(3) of the Act. It is thereafter the passport authority to decide whether to impound   the passport or not.  Since impounding of a passport has civil consequences, the  passport authority must give an opportunity of hearing to the person concerned before  impounding his passport.  It is well settled that any order which has civil consequences  must be passed after giving opportunity of hearing to a party vide State of Orissa Vs.  Binapani Dei [Air 1967 SC 1269].

14.     In the present case, neither the passport authority passed any order of impounding  nor was any opportunity of hearing given to the appellant by the passport authority for  impounding the document.  It was only the CBI authority which has retained possession  of the passport (which in substance amounts to impounding it) from October, 2006.  In  our opinion, this was clearly illegal. Under Section 10A of the Act retention by the  Central Government can only be for four weeks.  Thereafter it can only be retained by  an order  of the Passport authority under Section 10(3).

15.     In our opinion, even the Court cannot impound a passport.  Though, no doubt,  Section 104 Cr.P.C. states that the Court may, if it thinks fit, impound any document or  thing produced before it, in our opinion, this provision will only enable the Court to  impound any document or thing other than a passport.  This is because impounding a  \023passport\024 is provided for in Section 10(3) of the Passports Act.  The Passports Act i s a

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special law while the Cr.P.C. is a general law. It is well settled that the special law  prevails over the general law vide G.P. Singh’s Principles of Statutory Interpretation (9th  Edition pg. 133).  This principle is expressed in the maxim \023Generalia specialibus non  derogant\024.   Hence, impounding of a passport  cannot be done by the Court under  Section 104 Cr.P.C. though it can impound any other document or thing.

16.     For the aforesaid reasons, we set aside the impugned order of the High Court and  direct the respondent to hand over the passport to the appellant within a week from  today.  However, it shall be open to the respondent to approach the Passport  Authorities under Section 10 or the authorities under Section 10A of the Act for  impounding the passport of the appellant in accordance with law.

17.     We, however, make it clear that we are not expressing any opinion on the merits of  the case and are not deciding whether the passport can be impounded as a condition for  grant of bail.

18.     The appeal stands disposed of accordingly.