Refusal Of Passport Not Arbitrary If Foreign Travel Not In Public Interest/ May Prejudice India's Friendly Relations: Kerala High Court

A single judge bench of Justice K Babu in its order observed, "The genuine apprehension that the presence of a citizen of India in a foreign country is not in the public interest and is likely to prejudice the friendly relations of India with any foreign country is a ground to refuse passport and related travel documents to him. Such a restriction is just and reasonable and not arbitrary or oppressive". 

Background

It was alleged that the petitioner trafficked the 23-year-old son of the 'de facto' complainant to Qatar on a visiting visa and by offering him a job. The petitioner allegedly gave the complainant's son a bag of 4 kg of narcotic drugs for taking it to Qatar. The de facto complainant's son who was unaware of the contents in the bag was found by the Qatar police. 

The petitioner was booked in the FIR for allegedly committing offences punishable under IPC Sections 370 (human trafficking), 420 (heating and dishonestly inducing delivery of property) read with Section 34 (common intention) and Section 23 (punishment for illegal import into India, export from India or transhipment of narcotic drugs and psychotropic substances) of the NDPS Act.

The petitioner thereafter moved a plea under Section 22 (a) of the Indian Passports Act to leave India while the FIR is pending, which was rejected by the Special Court considering the seriousness of the allegations against him. The special court observed that the investigation is only in the preliminary stage and so granting permission to the petitioner to leave India would tantamount to modifying the conditions under which he was granted bail.

Before the high court the petitioner's counsel submitted that he has to travel to Abu Dhabi for employment and that he would lose his job if he is not permitted to travel abroad.

The State opposed his plea and argued that permitting the petitioner to go abroad is not in the public interest and that it might affect the friendly relations between India and the other foreign country due to serious allegations like human and drug trafficking.

Findings

Referring to Section 6 of the Passports Act, the High Court noted that persons accused of criminal offences and whose cases are pending before criminal court can be denied permission to travel abroad. It further noted that as per a August 25, 1993 notification issued by the Ministry of External Affairs, the Government of India has exempted Indian citizens from application of Section 6, against whom proceedings in respect of an offence alleged to have been committed by them are pending before a criminal court in India, if they produce orders from the concerned Court permitting them to depart from India.

The high court thereafter said, “If the Court concerned permits a person to leave India, the passport authority may issue a travel document to him even if he is accused of an offence.”

Observing that the right to travel abroad is a valuable and integral part of the right to personal liberty, the high court said that any law interfering with personal liberty of a person must satisfy the triple test of constitutionality.

These are the court noted, "(1) It must prescribe a procedure (2) the procedure must withstand the test of one or more of the fundamental rights conferred under Art.19, which may be applicable in a given situation. (3) It must also be liable to be tested with references to Art.14.”

In the facts of the case, the Court observed that the Special Court denied permission to the petitioner to travel abroad due to the nature of serious allegations raised against him.It thereafter dismissed the plea. 

Case Title: Shanid @ Shani v State of Kerala

Counsel for Petitioner: Advocate R Krishnakumar

Counsel for Respondents: Advocate Krishna TC, Public Prosecutor Nima Jacob, DSGI Mini Gopinath

Case Number: OP(CRL.) NO. 651 OF 2024

Citation: 2024 LiveLaw (Ker) 601

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