Nothing is achieved by Revenue by action to impound Passport

The surest way for the enforcement authority to be ineffective is to be high-handed.

One of such recent cases happened when the enforcement authority impounded the

Passport of an incoming passenger, which is beyond its authority. It seems too obvious to say that Revenue cannot impound passport. But even such commonplace things have to be asserted by the High Court and the Supreme Court. So the whole story deserves to be told here.

It has often been the practice that the Revenue or Foreign Exchange Enforce-ment Authorities while carrying out investigations under the relevant Acts impound the passport of the alleged offender. What they normally do is not to pass an order impounding it but merely keep it for long without returning it even when the alleged offender is willing to give a photocopy for any verification.

If it is to ascertain only the number of visits to different countries, it can be done very quickly or on the basis of photocopies. Revenue does not sometimes return the passport even when it is not able to show that the Passport is relevant for the enquiry. 

This amounts to impounding since the word impounds means to keep in the custody of law. A definitive judgement has now been handed over by the Bombay High Court in a very recent judgement.

In this case a person returning from abroad did not pay customs duty and was arrested by Customs. After bail was granted the passport was not returned even when he asked for it for going abroad again. The passport was thereafter handed over by Customs to Enforcement Department for further investigation. Though no official order was passed for impounding the passport, it tantamount to impounding. 

At the Bombay High Court Revenue advanced the argument that Section 131 (3) of Income Tax Act, Section 104 of CrPC and Section 110(3) of Customs Act give the power to seize documents which are relevant to the proceedings. But the Bombay High Court held relying on a decision by the Supreme Court that ‘document’ does not include Passport.

The Passport Act is a special Act, specific Act and a complete Act for Passport alone and therefore several other general Acts cannot hold good for Passport. The principle of interpretation relied upon is known as generalia specialibus non derogant which means that general provision should yield to specific provision. The Supreme Court and the Bombay High Court held that impounding a passport cannot be done under the general law such as CrPC, Income Tax Act or Customs Act.

My conclusion is the following. Nothing is achieved by Revenue by action which is not permitted by law. 

It only earns ill will from the people at large, generates loss of confidence of the judiciary and leads to ineffectiveness in dealing with smuggling or similar offences. If Revenue believed that the offender was going to run away from the country, the really effective way should have been to approach the proper Court to pass an order under the Passport Act to impound the passport.

Initiating an action under an inappropriate Act or under a wrong Section is a sure way of losing the case. I would not be surprised if the officers deliberately initiate action under a wrong Act in order to see that the case ultimately fails. It is as good as deliberately leaving a few contradictions while recording the statement of the offender. 

Assuming that there was no such bad faith in this case at the cutting edge level, it is the duty of the Revenue Department as a whole to ensure that actions are taken under the proper Act and the proper Section.

smukher2000@yahoo.com