JKL High Court Slams Authorities For Denying Passport To Mehbooba Mufti's Mother, Says Passport Authority Can't Act As Mouthpiece of CID
Directing the Passport Officer to consider former J&K Chief Minister Mehbooba Mufti's mother's application for re-issuance of passport afresh, the Jammu & Kashmir and Ladakh High Court on Saturday said that the authority has not to act as "mouthpiece of the CID". It ruled that the police verification report cannot override the statutory provisions of Section 6 of the Passport...
Directing the Passport Officer to consider former J&K Chief Minister Mehbooba Mufti's mother's application for re-issuance of passport afresh, the Jammu & Kashmir and Ladakh High Court on Saturday said that the authority has not to act as "mouthpiece of the CID". It ruled that the police verification report cannot override the statutory provisions of Section 6 of the Passport Act, 1967.
Setting aside the orders by which Mufti's mother Gulshan Nazir was refused passport, Justice M A Chowdhary said the passport officer shall consider the entire matter afresh and pass orders thereon within a period of six weeks.
The court said though the right to travel abroad can be curtailed by the Passport Officer on the basis of the available material but the authority in all situations has to take the decision strictly in accordance with the provisions of Passport Act 1967.
"There appears no ground to refuse issue or renewal of Passport requested by the petitioner. Even, there is not an iota of allegation against the petitioner which may point out to any security concerns. The police verification report formulated by CID CIK cannot override the statutory provisions of Section 6 of the Passport Act 1967," said the court.
Senior Advocate Jehangir Iqbal Ganai for the petitioner earlier argued that there were no allegations against the petitioner in the CID report and the Passport Officer had not applied his mind while rejecting her request for issuance of Passport.
He further submitted that the petitioner is a senior citizen of more than 80 years of age and asked what security threat the country could have in issuing passport in her favour for traveling abroad, adding that she is not a member of any banned organization and has a right to travel anywhere in the world being the peace loving citizen of India.
Per contra, Deputy Solicitor General of India T. M. Shamsi countered that the Passport Officer has to rely on the police verification report while issuing passport in favour of any person. CID recommendation is essential for issuance of Passport or otherwise and when there is a negative report from the CID against any person, the Passport authority cannot issue a Passport in favour of that person, he submitted.
Justice Chowdhary noted that the police verification report was formulated in reference to two cases as both the applications moved by Nazir and her daughter Mufti were dealt with together and in respect of both the applications, Police Verification Report (PVR) remarks were recorded as: ‘Passport service not recommended and connected security clearance withheld’.
However, the court observed that the police verification report had been formulated indicating the security angles for passport clearance of the former Chief Minister while with regard to the her mother, there was not "even an iota of allegation" which could indicate the security concerns of the State.
"The only aspect with regard to the petitioner is the reference of investigation by two agencies; Enforcement Directorate and CID CIK with regard to some of the transactions regarding some bank accounts maintained by the petitioner either separately or jointly with Ms. Mehbooba Mufti," said the court.
The court added that as far as the PMLA is concerned, 'no objection' has to be sought from the trial court. "However, there is nothing on record to say that charge-sheet has been laid against the petitioner or not," it said.
Deliberating on Sub Section(2) of Section 6 of the Passport Act, the bench explained that the provision clearly prescribes that an application for grant of renewal of passport shall be refused only on the grounds mentioned in the Section or if departure of the applicant from India may, or is likely to, be detrimental to the security of India.
Observing that nothing adverse has been recorded against the petitioner, with regard to any security concerns, the court said the only aspect with regard to her is the reference of investigation by two agencies - Enforcement Directorate and CID CIK, with regard to some of the transactions regarding some bank accounts maintained by the petitioner either separately or jointly with Mufti.
The bench observed that simply because the report of the J&K CID did not recommend issuance of passport, the Passport Officer has not to shut his eyes and to act on that. It added that the decision of both the Passport Officer as well as the appellate authority is misplaced on account of security.
"Atleast Passport Officer should have, in the background of the facts and circumstances, if required, asked the police and CID agency as to whether there is anything adverse against the petitioner. In such a situation without going into the PVR, refusal on part of the Passport Officer simply be termed as non-application of mind," Justice Chowdhary observed.
Observing that the passport Officer acted blindly on the PVR without analysing the same, the court observed that the report has exhaustively dealt with regard to the petitioner’s daughter making references to her ideology and activities, however, there is no mention with regard to the petitioner in the report in question.
"The appellate authority also seems not to have perused the Police Verification Report and upheld the order of the Passport Officer, on the wrong premise of security without any foundation," the court added.
In view of the aforesaid discussion, the bench concluded that the ground on which the request of the petitioner for re-issue of the passport has been rejected is totally untenable and unsustainable in the eyes of law.
"The petitioner, who claims to be an octogenarian, in absence of any adverse security report, cannot be deprived of her fundamental right guaranteed to her under Article 21 of the Constitution of India, to travel abroad as an India citizen," ruled the court.
Case Title: Gulshan Nazir Vs Union of India
Citation: 2023 LiveLaw(JKL) 1
Coram : Justice MA Chowdhary
Counsel For Petitioner : Mr Jahangir Iqbal Ganai Sr Adv with Muzzafar Nabi Lone Adv
Counsel For Respondent: Mr Tahir Majid Shamsi DSGI, Ms Asifa Padroo AAG