- (1.) THIS petition under Sec. 482 read with Sec. 451, Criminal procedure Code has been filed by the petitioner, who was arrested on 29. 4. 1988 by the respondent when he attempted to smuggle 868 grams of gold, while he came from America, to direct the release of his passport seized by the respondent, to enable him to go over to Sri Lanka to sell his property over there, for which an agreement had been entered long ago, and come back to India within a period of two months from the date of release of his passport. The petitioner was detained under the COFEPOSA Act on 21. 6. 1988. Though he was arrested on 29. 4. 1988 he was released on bail on the next day. The petitioner appears to have filed W. P. No. 7142 of 1988, challenging his detention under the COFEPOSA act, which was allowed on 22. 2. 1989.
(2.) MR. B. Kumar, learned counsel for petitioner, submits that four aspects are in favour of the petitioner to accede to the request made by him, they being: (a) Though the petitioner was on bail for two-and-a-half months, he stayed in India and did not attempt to evade the process of law. (b) He had already undergone eight months detention under the COFEPOSA Act and the quantity of gold involved is only worthy slightly over two lakhs of rupees and the period inside prison could be taken note of while considering the merits of this petition. (c) As on date, no complaint has been filed by the respondent. (d) No order impounding the passport has been made by any court and the deposit of the passport was not a condition precedent for his release on bail. No order of prohibition preventing his going abroad had been made and Article 21 of the Constitution guarantees his fundamental right to travel. Mr. P. Rajamanickam, learned counsel for respondent, countered the arguments of the learned counsel for petitioner, by raising the following contentions: (a) The petitioner was released on bail with a condition to appear before the respondent daily and that condition is still in force and had not been relaxed. (b) The need put forth to go to Sri Lanka is not one of grave emergency and when a person is involved in a grave offence of this nature, a cause like this cannot override the paramount duty of the Court to ensure the attendance of the petitioner for a speedy trial. (c) The detention under the COFEPOSA Act will not enure in favour of the petitioner since set-off cannot be claimed, for the petitioner had been released on bail even on the next day of his arrest. (d) Due to delay in obtaining sanction, the prosecution had not been launched, but the complaint will be filed against the petitioner in a day or two and soon thereafter the trial would be proceeded with. (e) The petitioner is a Sri Lankan national and once the passport is released and he is allowed to go out of India , the possibility of his being available for trial will be too remote. Though no specific order for impounding the passport had been made, the passport is now in the custody of the trial court and the difficulties pleaded by the petitioner are of his own making and the trial Court has passed an order on the basis of the dicta laid down by this court. Mr. Kumar, learned counsel for petitioner, relied on thanapal v. The Assistant Collector of Central Excise, Madras , 1986 L. W. (Crl.) 114, wherein David annoussamy, J. while considering the seizure of the passport along with the other articles of the petitioner therein, a foreigner, by the Customs department, directed return of the passport since the seizure of passport by a customs Officer was not permissible. A passing reference was also made by the learned counsel for the petitioner to Satwant Singh v. Assistant Passports officer, New Delhi, A. I. R. 1967 S. C. 1836, wherein the Supreme Court had observed that the right to travel abroad was a fundamental right and, in the absence of law regulating such a right, refusal of a passport or withdrawal of one given, would violate Arts. 14 and, 21 of the Constitution. Mr. Rajamanickam, per contra, placed reliance on the decision of S. A. Kader, J. , in The Assistant Controller of Customs House, Madras v. Abdul Samathu, 1985 L. W. (Crl.) 48, and two unreported decisions of this Court rendered by sengottuvelan, J. , in Crl. M. P. No. 4936 of 1985 and Padmini Jesudurai, J. , in crl. M. P. No. 2520 of 1987 which hold that the Criminal Court undoubtedly had the power to withhold or impound the passport of any person, more so of a foreigner, accused of a grave offence when there is every likelihood of his leaving the country and making a mockery of the judicial process against him. Let me now consider the rival contentions of the learned counsel on either side. David Annoussamy, J. in Thanapal'scase, 1986 L. W. (Crl.) 114, while holding that the seizure of passport by the Customs officer was not covered by Sec. 110 of the Customs Act and that the seizure was illegal, observed that it was open to the respondent (Customs Department) to move the competent Court to modify the conditions of bail to the extent desired, so that if the Court thought fit to secure the accused person as and when required, condition could be stipulated that the petitioner shall not leave the country and, to ensure fulfilment of the condition, order the surrendering of the passport to the Court. This salutary observation made by this Court must be observed by the Customs Department, so that it could be a complete answer for petitions filed for return of passport and for permission sought to go out of the country, pending disposal of a prosecution.
(3.) IN the light of the several decisions brought to my notice as aforementioned, it is clear that if the circumstances so warrant, the criminal Court has undoubtedly the power to withhold the passport or to impound it in cases of grave offences and more so in a case of a foreigner when there was likelihood of his fleeing from justice. None of the submissions made by Mr. Kumar can be taken very serious note of, for humanitarian or other considerations cannot prevail over the paramount duty of a Court to ensure a speedy trial and towards that end, consider the need of the petitioner's presence before the trial court. The purpose for which the petitioner seeks permission to out of India does not appear to be one of grave emergency and especially when the complaint is stated to be ready for institution. There will be no difficulty in directing the trial court to take up the case for trial as early as possible, after the institution of the complaint and dispose it of as expeditiously as may be feasible. As long as a Criminal Court has the power to withhold the passport and the passport is now in the custody of the trial Court and the need for withholding has arisen only because of the act of the petitioner in getting himself involved in alleged smuggling, the difficulties of his own making cannot enure in his favour. Though under Art. 21 of the Constitution, no person can be deprived of his right to travel, except according to the procedure established by law, the decisions of the Supreme Court in Satwant singh v. Assistant Passports Officer, New Delhi, A. I. R. 1967 S. C. 1836 and maneka Gandhi v. Union of India, (1978)2 S. C. R. 621, had not touched or affected the powers of a Criminal Court to withhold or impound the passport of a person accused of an offence if he is likely to leave the shores of the country and make good his escape from the clutches of law. ;