Passport Can’t be Seized, Retained by Investigating Agencies Unless Used to Commit Crime: Kerala HC

New Delhi: In a significant ruling, the Kerala High Court recently held that investigating agencies cannot seize or retain passports from accused persons unless these are suspected to have been used to commit a crime.

In a recent ruling in the Davood Vs State of Kerala case, Justice Bechu Kurian Thomas observed that retention of the passport of an accused by investigating agencies would amount to impounding it, reports Bar & Bench.

"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," the Court held, as quoted by Bar & Bench.

The court referred to a Supreme Court judgement in the case of Suresh Nanda Vs CBI, wherein it said that thought the police has power to seize a passport (of an accused) under Section 102(1) of the CrPC (Code of Criminal Procedure), the power to impound a passport can only be done by the Passport Authority under Section 10(3) of the Passports Act, 1967.

In November 2023, the J&K High Court had also come out with a similar ruling in the Madhu Bakshi vs Anti-Corruption Bureau, Kashmir case.

 In that case, too, Justice Sanjay Dhar had referred to the same Supreme Court judgement and observed: “If the police seize a passport, which it has power to do under Section 102 of CrPC, the same must be sent to the passport authority clearly stating that the seized passport deserves to be impounded for one of the reasons mentioned in Section 10(3) of the Passports Act, whereafter the passport authority would decide whether or not to impound the passport.”

Regarding seizure of mobile phones, the Kerala High Court observed that in the case of the accused the phone was seized in April 2022, and the forensic analysis should have been done by now (two years).

The ruling comes in the backdrop of several instances where phones devices and even some passports of some journalists of Newsclick who were raided in October 2023, were seized. The 90+ people who were raided were not ‘accused’ and included members of the staff, former employees and freelancers and contributors.