A passport may be issued if an applicant is convicted five years prior to the date of application or the sentence is less than two years, the Punjab and Haryana High Court has ruled in a verdict that is likely to impact the way those facing criminal proceedings are allowed to travel abroad.
“As soon as a person is convicted or acquitted, he would be governed by Clause (e) of Section 6(2) of 1967 Act…Clause (e) of Section 6(2) can be invoked if an applicant, within 5 years preceding the date of application, for the commission of an offence involving moral turpitude has been sentenced to imprisonment of not less than 2 years,” read the order.
Also, to minimise litigation, the bench of Justice Jagmohan Bansal directed “all passport authorities falling within jurisdiction of this court” to consider its observations and findings while processing pending and subsequent applications.
Justice Jagmohan Bansal’s judgment on a bunch of five petitions is significant as the stand of the authorities concerned and the Union of India was that passport could be issued only on court direction to an applicant against whom criminal proceedings were pending. A notification in this regard was applicable to pending appeals as well.
The court order came while hearing petitions filed by Mohan Lal alias Mohna and others who had moved the HC seeking directions to the central government and the authorities concerned to renew their passports.
As per the case of Mohan Lal, he was issued passport on August 22, 2005 which expired on August 21, 2015. Meanwhile, an FIR dated March 13, 2008 under NDPS Act came to be registered against him. The trial court vide judgment dated October 9, 2013 convicted Mohna under Section 15 of NDPS Act and sentenced him to imprisonment of 10 years. The petitioner filed an appeal against the order in HC and the sentence was suspended vide an order on February 14, 2017. Mohna then, on July 7, 2017, moved an application seeking renewal of his passport. He, however, was informed the same day that there is an adverse police report and his application was closed.
Counsel for the petitioner, Advocate Ish Puneet Singh contended that the case is covered by clause (e) of Section 6(2) of the Passport Act, 1967 as per which authority may issue passport if an applicant is convicted five years prior to the date of application or sentence is less than two years. In the case, of petitioner, five years period from the date of conviction expired on October 8, 2018, thus, he was entitled to passport.
Counsel for the respondents Union of India and passport authorities submitted that petitioner has been convicted and awarded sentence of 10 years, thus, he cannot be issued passport. Justice Bansal after going through the judgments of different High Courts held that the Clause (e) comes into play as soon as trial is concluded.
Further, the HC said that “…in the clause (e), the legislature, as per its wisdom has enjoined three pre-requisites, which is conviction should be within 5 years preceding the date of application; conviction should be for any offence involving moral turpitude and sentence awarded must be not less than 2 years…In the absence of any one of three afore-stated pre-requisites, clause (e) cannot be invoked…”
Justice Bansal said: “Matter further needs to be examined in the light of changed social, scientific and economic scenario vis a vis human and fundamental rights…With the advancement of technology, improvement of means of communication, globalization of economy, opening of economy for foreign investors, improvement of financial status of public at large, attraction to study and thereafter work out of country, increase in volume of international trade, availability of flights, unprecedented increase in the number of tourists across the world; travelling to abroad has substantially increased and it has become part of life. Presence of number of persons at one point of time at airports and daily international flights speak itself. Umpteen number of persons are travelling abroad for the sake of business or employment. If these persons are mechanically denied passport or permission to visit abroad, without allaying fear to flee from justice, not only would deprive them from their right to earn livelihood but also violate their fundamental right to freedom of business and profession, guaranteed by Article 19(1)(g) of the Constitution of India…”
The Bench asserted added that the youngsters are getting life time golden opportunities to work abroad. “If a young boy/girl who has got life time opportunity to work abroad is mechanically denied passport, no one would be able to compensate and it would be travesty of justice. Thus, denial of passport not only amounts to violation of fundamental rights guaranteed by Article 14 & 21 but also freedom of speech, business and trade contemplated by Article 19(1)(a) and (g) of the Constitution unless and until procedure prescribed by law is followed,” read the verdict.
The Bench, thus allowing the petitions, directed the authorities concerned to consider and decide the application of the petitioners afresh.