Kerala HC rules probe agencies cannot seize passport, unless it was used for a crime

Kochi, Jan 25: The Kerala High Court on Thursday pointed out that probe agencies cannot seize or retain passports from accused persons unless the passport was used or suspected to have been used to commit a crime.

"The passport of an individual is an important document and is issued under the provisions of the Passports Act, 1967. In the absence of any crime committed or suspected to have been committed with the said document, a passport cannot be seized or retained by the investigating agencies ... The long retention of a passport, without even a condition in the bail order, will amount to impounding, which is opposed to law," said the court.

The court went into an earlier apex court judgment which ruled that though the police may have the power to seize a passport under Section 102(1) of the Code of Criminal Procedure (CrPC), it does not have the power to impound a passport, which can be done only by the Passport Authority under Section 10(3) of the Passports Act, 1967.

“After the seizure of a document, if the property is retained for some period of time, the said retention amounts to impounding of the property or document. The Supreme Court also observed that even the court cannot impound a passport despite Section 104 of the Cr.P.C. as the said provision will enable the court to impound any document or thing, other than a passport," the High Court said.

The High Court passed the fresh order on a petition moved by a man who was arrested in April 2022 under the Narcotic Drugs and Psychotropic Substances Act, 1985, for allegedly receiving a parcel containing 3.5 kilograms of hashish.

After his arrest, he secured bail and then approached a local court here seeking the release of his passport, ID card and mobile phone, which were all seized by the police at the time of his arrest, but the court dismissed his petition.

It was following this rejection that he approached the High Court and the Narcotics Control Bureau which is investigating the case, opposed it.

The High Court noted that the order granting the petitioner bail did not have any condition requiring him to deposit his passport with the court or the Investigating Officer.

"The restriction that the petitioner shall not travel outside Kerala without permission from the court cannot be a reason to retain his passport," the court added.

With regards to the mobile phone, the court said that the forensic analysis ought to have been done by now, since it was seized in April 2022, besides the identity card of the petitioner would be of no use to the investigation, the court further observed.

The High Court then directed the investigating agency to return the passport, mobile phone and identity card to the petitioner.