Bombay HC: Police can only Seize Passport, Not Impound it

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June 08, 2018

Case name: Jignesh Prakash Shah v. CBI & Ors.

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In a recent case, the High Court of Bombay has ruled that the Police under Section 102 of CrPC only has the power of seizure of passport. In the case, the CBI retained the Appellant’s passport for almost three years. The High Court remarked that withholding of passport for such a long time was similar to impounding of passport and hence illegal.

In the case, the Appellant has filed revision application against order of Special Judge CBI. In the case in relation to offences under the Prevention of Corruption Act, search was conducted by CBI and the passport of the appellant was seized by them.

Aggrieved by seizure of passport, the appellant preferred application before the Special Judge CBI for return of passport however, the same was rejected. The Court, however in the case directed CBI to send the passport of the applicant along with a letter to passport Authority clearly stating that the seized passport deserved to be impounded under Section 10(3) of the Passport Act. However, the CBI retained the Appellant’s passport for almost three years.

Hence, the main issue that fell for consideration before the High Court of Bombay pertained to legality of seizure of passport by CBI.

The Bombay High Court in view of the facts and circumstances of the case was prima facie of the view that the respondent CBI under the guise of seizure of the passport has retained the same for almost three years, which amounts to impounding and not permissible under law.

The High Court while pronouncing its order in the case heavily relied on Supreme Court’s decision in the case of Suresh Nanda v. CBI[1], wherein it was observed that the police may have power to seize the passport under Section 102 of CrPC, if it is permissible but it does not have power to retain or impounding the same because that can be done by the passport Authority under Section 10(3) of the Passport Act. Hence, if the police seized the passport which it has power to do, the same must be sent along with letter to the passport Authority stating that the passport deserves to be impounded being one of the reasons mentioned in Section 10(3) of the Act.

That the police officer during the course of investigation can seize any property under Section 102 of CrPC, if the said property is alleged to be stolen or is suspected to be stolen or is the object of the crime under investigation or has direct link with the commission of offence for which the police officer is investigating into. A property is not suspected of commission of the offence which is being investigated into by the police cannot be seized.

Under Section 102 of CrPC, the police officer can seize such property which is covered by Section 102 (1) and no other. Thus, the police officer has no Authority or power to seize the property when it is not suspected to have been stolen, nor it is found under circumstances which create suspicion of the commission of any office having been committed unless discovery of property leads to suspicion of offence having been committed.

That the Passport Act is a special act relating to matter of passport whereas Section 102 of CrPC is a general provisions for impounding any document or thing and the provisions of Passport Act shall prevail upon the section in CrPC.

Thus, by necessary implication, the power of Court to impound any document or thing produced before it would exclude passport. The police may have power to seize the passport under Section 102 of CrPC. But, it does not have power to impound which can be done only under Section 10(3) of the Passport Act.

The entire case can be accessed here.

[1] Appeal (crl.)  179 of 2008