Petitioner challenged wrongful withholding of passport under penalty allegation. Court held absolute rule allowing passport return conditional on furnishing separate bank guarantees for pending penalty appeals pending appellate adjudication.
Petitioner to furnish separate bank guarantees; respondents to return passport within one week.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRI. APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 351 OF 2005
Mr. Kirit R. Kanakiya,
R/at 14, Rohini Apartment,
Plot No. 178, 3rd floor,
Behind Rupam, Talkies,
Sion (E), Mumbai - 400 022. ... Petitioner
V/s
1. Enforcement Directorate,
Government of India,
Ministry of Finance,
Deptt. of Revenue, 23/24,
Mittal Chambers, 2nd floor,
Nariman Point, Mumbai - 400 021.
2. Enforcement Directorate
(Foreign Exchange Management Act)
Ministry of Finance, Govt.of India,
Janmabhoomi Chambers, 1st floor,
Walchand Hirachand Marg,
Mumbai - 400 001.
3. Union of India
4. State of Maharashtra. ... Respondents
Mr. Shirish Gupte with Prakash Naik for the petitioner.
Mr. D.N. Salvi for Respondent Nos. 1 to 3.
Mr. D.S. Mhaispurkar, A.P.P. for the Resp.No.4.
CORAM: R.M.S. KHANDEPARKAR &
P.V. KAKADE, JJ.
DATED: 9TH MARCH, 2005
ORAL JUDGMENT (Per Khandeparkar, J.):
2
1. Heard. Perused the record.
2. Rule. By consent, Rule made returnable forthwith.
3. The only grievance of the petitioner in this
petition is that the passport of the petitioner has been
wrongfully withheld by the respondents on the allegation
that the petitioner has not paid the penalty amount
imposed by the petitioner. Undisputedly, the penalty
amount imposed in adjudication order is Rs.15 lacs and
out of that, Rs.3 lacs have been deposited at the time
of filing of appeals by the petitioner against the order
imposing the penalty. It is also undisputed fact that
the appellate authority has not been constituted and,
therefore, the petitioner is handicapped in obtaining
any relief on the application for stay filed by the
petitioner alongwith the appeals filed by the petitioner
challenging the penalty amount. In the circumstances,
therefore, there is absolutely no justification for the
respondents to withhold the passport and more so in view
of the fact that no appropriate appellate authority has
been constituted to enable the petitioner to agitate
against the order imposing penalty. In the
circumstances, therefore, the petitioner is justified in
making grievance against the respondents regarding
3
withholding of passport. However, since the penalty
amount has been imposed and the matter has to be
adjudicated by the appellate authority, the blanket
order for return of the passport cannot be issued. In
the circumstances, therefore, though the petitioner
would be entitled for direction to return of the
passport, at the same time, the respondents need to be
secured by directing the petitioner to furnish a
suitable bank guarantee in relation to the balance
amount of the penalty of Rs.12 lacs. On furnishing such
bank guarantee of any nationalized bank by the
petitioner, the respondents shall return the passport to
the petitioner within one week from furnishing of such
bank guarantee. The bank guarantee to be furnished by
the petitioner shall be kept alive till the appropriate
order is passed by the appellate authority in relation
to the penalty amount. Considering the fact that two
separate orders were passed in relation to the
adjudication of penalty amount as imposed separately,
namely, Rs.10 lacs in one case and in another case it
was Rs.5 lacs. In case of appeal against the penalty of
Rs.5 lacs, the petitioner has earlier deposited Rs.1 lac
and in case of appeal against the penalty of Rs.10 lacs,
the petitioner has deposited Rs.2 lacs. Consequently,
the bank guarantee should be given separately, one in
4
the amount of Rs.4 lacs and another for the amount of
Rs.8 lacs. The respondents to intimate the petitioner
within one week the authority in whose favour bank
guarantees are to be given. Accordingly, the petition
stands disposed of.
4. Rule made absolute in above terms with no order as
to costs.
( R.M.S. Khandeparkar, J. )
( P.V. Kakade, J. )
1 issue framed by the court
Whether withholding of passport due to unadjudicated penalty is justified when no appellate authority has been constituted.
Kirit R. Kanakiya
Enforcement Directorate
Union of India
State of Maharashtra
R.M.S. Khandeparkar
P.V. Kakade
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court