The Bombay High Court has directed the court/Directorate of Revenue Intelligence (DRI) to return the passport and held that bail condition requiring alleged customs duty evader to surrender passport every time he returns from abroad is onerous.
The bench of Justice Milind N. Jadhav has observed that Employing onerous condition in a bail order clearly amounts to indirectly impounding the passport in substance. Even under the provisions of the Passport Act and more specifically Sections 10-A readwith 10 (3)(e), passport can be retained by the Central Government for four weeks and thereafter it can only be retained by the order of the Passport Authority under Section 10(3) of the Passports Act.
The bench added that the Act of repeatedly depositing the passport after undertaking every travel itinerary indirectly amounts to retention of the passport by the Court. As delineated above, the Passports Act is a special law while Cr.P.C. is a general law and it is well settled that the special law prevails over the general law. This principle is expressed in the maxim generalia specialibus non derogant.
The Applicant was arrested on 21.03.2021 in Remand Application for the offence punishable under Section 135(1)(i) of the Customs Act, 1962 at the instance of the Directorate of Revenue Intelligence, Mumbai (DRI).
Since the charge sheet was not filed within the stipulated period of 60 days as stated under Section 167(2) of the Code of Criminal Procedure, 1973 (Cr.P.C.), as the said offence is punishable upto 5 years of imprisonment. Hence Applicant preferred Application for default bail which was granted by order dated 21.05.2021. On 24.05.2021, Applicant submitted / surrendered his passport before DRI.
Subsequently, Applicant filed a Miscellaneous Application No. 2081 of 2021 for relaxation of the bail condition however it came to be rejected by order.
Thereafter Applicant filed three (3) Applications on the previous occasions seeking permission to travel abroad and return of passport which was allowed by orders by the Trial Court. Pursuant to which Applicant filed Miscellaneous Application which came to be rejected by the order.
Dr. Sujay Kantawala, the counsel for the applicant contended that that Applicant is a businessman who frequently travels abroad for business purposes. The condition not only offends his right to practice his profession as guaranteed under Article 19(1)(g) of the Constitution of India but also his right to travel abroad which is an integral part of his right to life guaranteed under Article 21 of the Constitution of India.
Dr. Kantawala added that investigation stands completed as Show Cause Notice was issued on 16.09.2021 and subsequently an order has been passed which is further stayed by this Court. The Show Cause Notice was issued by the office of Commissioner of Customs which further substantiates completion of investigation.
Dr. Kantawala added that the onerous condition is causing grave prejudice and harm to Applicant’s business as he is unable to attend business events as invites are received only a few days prior to the event which makes its extremely difficult for him to seek permission from the Court to travel abroad and seek the passport from the Trial Court and DRI. He would submit that he has regularly cooperated with the investigation. The Applicant has deep roots in the Society and his two daughters and family members are all permanently residing in Mumbai.
The DRI submitted that the investigation has been completed and the matter has proceeded for adjudication and presence of Applicant would be required for the purpose of trial. She would submit that Applicant filed Application for relaxation / deletion of condition No.3 which came to be rejected on 18.11.2021 which was never challenged and thus the said order has attained finality.
The court considering the business profile and antecedents of the Applicant stated that the applicant would be required to travel abroad at short notice and therefore if he has to seek release of his passport on every occasion, the time spent in doing so is clearly detrimental to his prospects given the existential conditions in Court. This is not a case where the Applicant has misused the liberty given to him.
The court held that employing onerous condition in a bail order clearly amounts to indirectly impounding the passport in substance. Even under the provisions of the Passport Act and more specifically Sections 10-A readwith 10 (3)(e), passport can be retained by the Central Government for four weeks and thereafter it can only be retained by the order of the Passport Authority under Section 10(3) of the Passports Act. The Act of repeatedly depositing the passport after undertaking every travel itinerary indirectly amounts to retention of the passport by the Court.
The court deleted the condition and stated that whenever the Applicant travels abroad in future, he shall furnish all details of his travel itinerary alongwith all documentary material relating to his purpose of travel, dates and details of travel and return, tickets, visa etc. with the DRI at least one week in advance before he undertakes the travel and intimate about his return back within one week of his return so as to enable the DRI to apply its mind to the same.
Case Details
Case Title: Mohammad Hanif Nurani Versus State of Maharashtra & Anrs.
Case No.: Criminal Application No. 434 Of 2024
Date: 05/02/2025
Counsel For Petitioner: Dr. Sujay Kantawala a/w Mr. Anupam Dighe, Ms. Chandni Tanna and Ms. Renita Alex, Advocates
Counsel For Respondent: Ms. Mahalakshmi Ganapathy, APP
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