SURESH NANDAversusC.B.I

                     [2008] 1S.C.R.1212


                      SURESH NANDA                               A
                               v.
                             C.B.I
                  (Crl. A. No. 179 of 2008)
                     JANUARY 24, 2008
                                                                  B
    (P.P. NAOLEKAR AND MARKANDEY KATJU, JJ.)

     Passport Act, 1967:
     s.10(3)(e) - Impounding of passport of - NRI - FIR
against - During search operation, passport seized - Retained C
by CBI under orders of Court - HELD: Retention of passport
by CBI is clearly illegal as it has not been done in conformity
with provisions of law and there is no order of the passport
authorities uls 10(3)(e) or by Central Government uls 10-A to
impound passport - Passport could not have been D
impounded except by passport authority in accordance with
law- Passport Act being a specific one ands. 104 Cr PC. being
a general provision, by necessary implication power of court
to impound any document or thing produced before it would
exclude passport - Expressions 'seizure' and 'impounding' - E
Connotation of- Code of Criminal Procedure, 1973 - ss.102
and 104 - Interpretation of Statutes.
     Code of Criminal Procedure, 1973:
        s.102 - Seizure of document by police - HELD: Police F
may have power to seize a passport, it does not have power to
retain or impound the same because that can only be done
by passport authority uls 10(3) of the Passport Act - If police
seizes a passport u/s 102 of Code, it must send the same
along with a letter to passport authority stating as to why seized G
passport deserves to be impounded uls 10 of Passport Act -
It is then for passport authority to decide whether to impound
the passport or not - Passport to be returned to the owner -
Passport Act, 1967 - SS. 10(3)(E) AND 10-A.
                             1212                                 H
    1213       SUPREME COURT REPORTS                 [2008) 1 S.C.R.


A          Words and Phrases:
          Expressions 'seizure' and 'impounding' - Connotation of
    in the context of Passport Act, 1967 and Cr. PC.
        Satwant Singh Sawhney Vs. D. Ramarathnam, Asstt.
B Passport Officer (1967) 3 SCR 525; Maneka Gandhi vs. Union
  of India and another (1978) 1 sec 248; Dam Valaji Shah &
  another Vs. L.l.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
c 1999 SC 3125; and State of Orissa Vs. Binapani Dei AIR 1967
  SC 1269 - referred to.
         Law Lexicon by P. Ramanatha Aiyar (2nd Edition);
    and Principles of Statutory Interpretation by G.P. Singh
    (9th Edition) - referred to.
D
         CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
    No. 179 of 2008.
         From the final Judgment and Order dated 5.2.2007 of the
    High Court of Delhi at New Delhi in C.R.P. No. 49/2007.
E
          Harish N. Salve, Sidharth Luthra, Mukul Rohtagi, Sandeep
    Kapur, Ruchin Midha, R.N. Karanjawala and Manik Karanjawala
    for the Appellant.
        A Sharan, A.S.G., A. Mariarputham and B. Krishna Prasad
F for the Respondent.
           The following Order of the Court was delivered :
                                ORDER
           1. Leave granted.
G
         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
H
                    SURESH NANDA v. C.8.1.                     1214


     India. The said search and seizure was pursuant to an F.1.R. A
     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 B
     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 c
     Judge, C.8.1., 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
                                                                       D
     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 "The Act"). He E
     specifically referred to sub-section (3)(e) of Section 10 of the
     Act which reads as under:
          "(3) The passport authority may impound or cause to be
          impounded or revoke a passport or travel document -
                                                                        F
          (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:"
          Reference was also made to Section 1OA of the Act which
     has been introduced by Act 17/2002 w.e.f. 17.10.2001.        G
           4. Learned senior counsel for the appellant also placed
     reliance on the decision of 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
                                                                        H
    1215        SUPREME COURT REPORTS                   (2008] 1 S.C.R.


A   under:
           "31: 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
B          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."

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

           " .... Now, it has been held by this Court in Satwant Singh's
D          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
E          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
F          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' (VideA.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
G
           depriving him and the deprivation is effected strictly in
           accordance with such procedure ..... "
       6. On the other hand, learned Additional Solicitor General
  appearing for the respondent submitted that the passport was
H seized and impounded by exercising the powers under Section
                    SURESH NANDA v. C.B.I.                       1216


     102 read with Sections 165 and 104 of Code of Criminal A
     Procedure (hereinafter referred to as "the Cr.P.C."). 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.BJ
     exercising the power under Section 104 of Cr.P.C.                 B
           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           c
     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    D
.    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     E
     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). "Impound" means to keep in custody of
     the law. There must be some distinct action which will show that    F
     documents or things have been impounded. According to the
     Oxford Dictionary "impound" 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
                                                                         G
     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 H
    1217     SUPREME COURT REPORTS                    [2008) 1 S.C.R.


A 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 specificAct. As the Passports Act is a special
  act, the rule that "general provision should yield to the specific
B provision" is to be applied. See : Damji Valaji Shah & another
  Vs. L.l.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].
c       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
D exclude passport.
                                                                         •
        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
  1QA of the Act which provides for an order to suspend with
E 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
F do without prejudice to the generality of the provisions contained
  in Section 1O 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
G by the respondent (CBI) has not been done in conformity with
  the provisions of law as there is no orier of the passport
  authorities under Section 10(3)(e} or by !l1e Central Government
  or any designated officer under Section 1OA of the Act to
   impound the passport by the respondent exercising the powers
H vested  under the Act.
                     SURESH NANDA v. C.8.1.                       1218


...         11. Learned Additional Solicitor General has submitted        A
      that the police has power to seize a passport in view of Section
      102(1) of the Cr.P.C. which states:
           "Power 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        B
           under circumstances which create suspicion of the
           commission of any offence".

           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        c
      power to impound the same. Impounding of a passport can
      only be done by the passporl 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 D
..    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, E
      then such retention amounts to impounding of the property/or
      document. In the Law Lexicon by P. Ramanatha Aiyar (2nd
      Edition), the word "impound" has been defined to mean "to take
      possession of a document or thing for being held in custody
.,    in accordance with law". Thus, the word "impounding" really F
      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 G
      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 H
    1219      SUPREME COURT REPORTS                     [2008] 1 S. C.R.


A   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
B   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).
c       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
D amounts to impounding it) from October, 2006. In our opinion,
  this was clearly illegal. Under Section 1OA 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).
E       15. In our opinion, even the Court cannot impound a
  passport. Though, no doubt, Section 104 Cr.PC. 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
F because impounding a "passport" is provided for in Section
  10(3) of the Passports Act. The Passports Act is a 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
G expressed in the maxim "Generalia specialibus non deroganf'.
  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
H
                     SURESH NANDA v. C.B.I.                     1220


     order of the High Court and direct the respondent to hand over A
     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 autho11ties under Section
     1OA of the Act for impounding the passport of the appellant in
     accordance with law.                                             B

.,          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.
                                                                        c
            18. The appeal stands disposed of accordingly.
     R.P.                                       Appeal disposed of.