Passport – Power To Impound And Seize

Can a passport be impounded by exercising power under section 102 read with section 165 and 104 of the Code of Criminal Procedure, 1973?

The Hon’ble Supreme Court of India in Suresh Nanda vs. CBI reported in (2008)3SCC674 has answered this question in negative and observed that while the police may have the power to seize a passport under Section 102(1) Criminal Procedure Code, 1973, it does not have the power to impound the same. Impounding of a passport can only be done by the passport authority under Section 10(3) of the Passports Act, 19673.

It was in the same case (supra) difference between seizure and impounding was stated. It is said that“A seizure is made at a particular moment when a person or authority takes into his possession some property which was earlier not in his possession. Thus, seizure is done at a particular moment of time. However, if after seizing of a property or document the said property or document is retained for some period of time, then such retention amounts to impounding of the property/or document.”

The Court stated that when we read Section 104 of Criminal Procedure Code, 1973 and Section 10 of the Passport Act, 1967 together, we will find that under the Criminal Procedure Code, 1973, the Court is empowered to impound any document or thing produced before it whereas, the Passports Act, 1967 speaks specifically of impounding of the passport. It is stated that the Passport Act, 1967 being a specific Act and Section 104 of Criminal Procedure Code, 1973 being a general provision for impounding any document or thing, it is the Passports Act, 1967 which shall prevail over the provision under the Criminal Procedure Code, 1973 as regards the passport. Thus, by necessary implication, the power of Court to impound any document or thing produced before it would exclude passport.

It is further observed that the Passport Act, 1967 is a special act relating to the matters of passport, and whereas Section 104 of the Criminal Procedure Code, 1973 authorizes the Court to impound document or thing produced before it. Law is clear on the issue that where there is a special act dealing with a specific subject, resort should be made to that act instead of the general Act providing for the matter connected with the specific act. As the Passports Act is a special act, the rule that “general provision should yield to the specific provision” is to be applied.

Thus the Hon’ble Supreme Court of India in Suresh Nanda vs C.B.I had finally held that, while the police may have the power to seize a passport under Section 102(1) Criminal Procedure Code, 1973, it does not have the power to impound the same. Impounding of a passport can only be done by the passport authority under Section 10(3) of the Passports Act, 1967.

Thus, by necessary implication, the power of Court to impound any document or thing produced before it would exclude passport. The police may have power to seize the passport under Section 102 of CrPC. But, it does not have power to impound which can be done only under Section 10(3) of the Passport Act.

Impounding of passport has to be done by the passport authority. Therefore, many a time when the convict’s passport has not been revoked by the court, or impounded by the passport authority, it remains with him. Having a passport eases out the process of leaving the country. Then the person has a choice of leaving the country which he further exercises. Hence the necessity of impounding the passport is realised.