Anwar-Ul-Haq vs Union Of India (Uoi) And Ors. on 17 August, 2007
Equivalent citations: AIR 2008 J K 35, 2007 (3) JKJ 1
Author: Y Nargotra
Bench: Y Nargotra
JUDGMENT Y.P. Nargotra, J.
1. Can consideration for granting of a Passport be withheld on account of CID Clearance? is the common question involved in these writ petitions.
2. The writ petitioners in these petitions have applied for issuance of Passports, but neither the same have been issued nor the issuance has been declined by the Passport Authority. The stand of the respondents is that on receipt of the applications for issuance/renewal of Passports the cases were sent for clearance by the CID and either the same has not been received back or received with the inconclusive report or received with the recommendation that the same should not be issued, therefore, no decision in the matter has yet been taken by the authority. It is not in dispute that till today a period of more than a year has elapsed from the date of receipt of the applications.
3. Mr. Magoo, learned Addl Solicitor General contends that though the requirement of Police verification of applicants for issuance of Passports in the all States of the Country except few States including the State of Jammu and Kashmir has been dispensed with, but same is still necessary for the applicants of the State in terms of Circular dated 11-9-2006 issued by the Ministry of External Affairs and therefore, in the cases it has not been received or received with adverse recommendation from the CID the Passports have not been issued.
4. The contention of Mr. Sethi, learned Counsel for the petitioner is that for want of Police Verification the passport authority cannot with-hold his decision regarding issuance of Passports in favour of the petitioners. The Passport can be declined only on the grounds mentioned in Section 6 of the Passport Act 1967.
5. Section 5 of Passport Act 1967 (hereinafter called 'the Act) deals with the issuance of passports and travel documents etc. It reads as follows:
5. Application for passports, travel documents, etc. and order 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 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 enquiry, 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 document 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
(c) Refuse to issue the passport or travel document or, as the 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 in the interests of the general public to furnish such cop.
6. From the bare reading of the Section it would transpire that on receipt of the application the Passport Authority is empowered to make such inquiry which he may consider necessary before issuance of a Passport. It is because of such power of making inquiry the Passport Officer is entitled to seek Police verification report in regard to the antecedents of the person who has applied for the issuance of a Passport. The purpose of such inquiry by the Passport Authority is to enable himself to make up his mind as to whether the Passport or travel documents should be issued or refused in the circumstances of each particular case. In any case the decision over the issue of a Passport or travel documents has to be taken by the Passport Authority alone and for taking such decision he may keep the intelligence report in view. Merely because the intelligence report received is adverse the Passport Authority cannot defer his own decision, on the issue of Passport nor he can refuse the same without applying his mind to the facts stated in the report.
7. Adverse Police Verification report per se does not dis-entitle a citizen from his legal right to have a passport. It is for the Passport Authority to take into consideration the facts/antecedents of the person who has applied for issuance of a Passport, alleged by the intelligence agency in its report, for deciding whether passport should be issued or refused. He is not bound by the recommendations of the intelligence agency.
8. In a case where Police verification has been sought but the repot has not been received, for how long the passport authority should wait for taking his decision. The answer to this is in Clause 7 of Manual 2001 issued by the Government of India, Ministry of External Affairs in which guidelines on the subject have been given. Clause 7 reads:
VERIFICATION BY POLICE AUTHORITIES
7. Under Section 5(2) of the Passports Act, 1967 the Passport Authority may make such enquiry, as deemed necessary, prior to the issue of passport. In the absence of any other independent source at its disposal such inquiries are usually made through the Police authorities. Points to be noted in this connection are:
(a) Passport Officer should ensure that the police verification forms (Personal Particulars Form) are detached from the application form on the day the application is submitted and they should be sent tot eh local District Police the same day:
(b) Instead of calling for separate CID and district police reports, the Passport Office would normally send the Personal Particulars (PP) forms only to the Superintendent of Police who would obtain the comments of the State CID and forward a consolidated police report to the Passport Office, combining both security (CID) and identity report (confirmation of personal particulars) of the applicant. The prescribed format of letter to the police for obtaining the consolidated report may be seen in Appendix 12.(Reference letter No. V.I/401/12/90 dated 25.5.1993).
(c) The report is to be called for a period of one year only before the date of the application. The requirement of police verification has form October 1999, been reduced from two years to one year; the inquiry is to be conducted from all places of residence during this period. (Reference paragraph 3.i of letter No. V.I/40/38/98-H dated 13.10.1999).
(d) If the police verification report is not received within a period of 30 days and all documents are in order, the passport may be issued without waiting for the report of 'Police report overdue basis'. The Passport Authority will be guided by the instructions of the Chief Passport Officer in this regard issued from time to time. If such a passport is issued, the PIA would ensure that appropriate action is taken in case an incomplete or adverse police report is received (Reference paragraph (i) of letter No. V.I/401/20/99 dated 28.7.1999).
(e) The police report should not be treated as adverse unless it is clearly negative. Incomplete reports stating for example, that the" applicant is out of station", or " residing at the specified address for less than one year," etc. should not immediately be treated as negative and the Passport Officer should not take action to refuse, revoke or impound a passport merely on this basis:
(f) In the above cases, the police should be requested to leave behind at the address of the applicant a slip intimating the date and time of his visit and asking the applicant to report at a specified police station. This would help to keep the applicant informed and give him an opportunity to sort out the matter with the police:
(g) Passport may not be refused on a negative police/CID report unless it is supported by evidence, which can be defended in a Court of law. The PO may therefore ask the applicant to re-submit the Personal Particulars Form, which would be sent again to the concerned security authorities for re-verification. In case no reply or an unsatisfactory reply is received the applicant, then a notice of refusal of passport is to be issued and further action taken after following normal procedures.
9. Thus where complete police verification report has not been received within thirty days the Passport Authority is to take a decision by following instructions of Chief Passport Officer.
10. Therefore, in no case the Passport Officer can withhold consideration of the question of issuance of Passport or travel documents indefinitely and same shall be true about the cases of renewal or re-issue of Passports or travel documents.
11. In this view of the position these writ petitions are disposed of with a direction to the Passport Authority to dispose of the applications filed for issuance/renewal/re-issue of Passports by passing appropriate orders within three weeks.
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