A single judge bench of AP High Court held as follows:
Time and again this Court is coming across many cases, wherein the deposit of passport is being ordered by the Courts at the time of granting bail etc. The Hon’ble SupremeCourt of India in Suresh Nanda’s case (1 supra) has very clearly laid down that impounding of passport is not power that is available to the police. The police have a right tomerely seize the passport under Section 102 Cr.P.C., but they do not have the power to retain the passport. The Hon’ble Supreme Court of India has already clearly held that the retention of a passport for a long time also amounts to impounding of the passport. This is very clearly laid down in the judgment of Suresh Nanda’s case (1 supra). Apart from that the Hon’ble Supreme Court of India also clearly held thatafter the passport is seized and if the State was of the opinion that the petitioner was likely to flee the country or that he is at a flight risk, the only option available to the State or theprosecution is to file an appropriate application before the Passport Authorities to impound the passport for the reasonsmentioned in Section 10(3) of the Act. The Passport Authorities shall give a notice to the accused and after hearing the accused, they will have to pass an order. Sincethe cancellation of the passport is an order having severe civilconsequences, the accused also has a right of being heardbefore the passport is impounded. The Passport Act, being a special law will prevail over the general law.
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In that view of the matter, irrespective of the fact that whether in the present case the issue relates to the voluntary deposit of the passport or deposit pursuant to an order of the Court, the fact remains that neither case is supported by the law. If the counsel made a wrong concession, the same cannot be enure to the benefit of the prosecution. A party should not suffer for any mistake committed by the counsel. If the same is a part and parcel of the lower Courts order, then it is clearly opposed by the law as interpreted by the Hon’ble Supreme Court of India in Suresh Nanda’s case (1 supra). Therefore, for both these reasons, this Court holds that the condition about the deposit of the passport cannot be imposed by a Court while granting bail or for any other reason. The only option left in such cases, when the passport is seized is to take steps under the Act for cancellation/impounding. Learned Public Prosecutor has stated that the original passport is lost and the accused has applied for a duplicate passport and has flouted the Court
order. Basing on the written instructions received by him, he states that petitioner/A.1 is also liable for contempt of Court. This is also not correct and the order of the Court does not seem to suggest this. As mentioned earlier, neither the Court can impose such a condition nor can the counsel give a
concession and deposit the passport. Even if the passport is deposited pursuant to the concession made by a counsel, the same cannot be retained indefinitely by the Court or the Police till the trial is concluded.
In fact, in the decision of Suresh Nanda (1supra), the Hon’ble Supreme Court of India noticed that under Section 10(a) of the Act, even the Central Government can only retain the passport for four weeks. Thereafter, a further order from Passport Authorities is necessary for retention of the passport.
After clarifying the law on the subject and holding that the impugned order passed by the I Additional Chief Metropolitan Magistrate is contrary to law, this Court leaves it open to the prosecution to take such steps as are warranted by law, if they are so advised to cancel the passport of the accused.
Citations :
Other Sources :
https://indiankanoon.org/doc/130750295/
