Sec.311 of Cr.P.C recalling of witnesses at the stage of arguments or de fence evidence=“…no reasonable person properly instructed in law would allow an application filed by the accused to recall the eyewitnesses after a lapse of more than one year that too after the witnesses were examined, cross-examined and discharged.”=since in the present case recording of the statements of the accused under section 313 Cr.P.C. is over, the application under section 311 Cr.P.C. should not be entertained.

IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH AT PORT BLAIR CRR No.045 of 2011 (Para Toppo Vs. The State) Mr.D.Ilango .. for the petitioner Mr.S.K.Mandal Mr.M.A.Rehman … for the respondents January 05, 2012 The accused/revisionist-petitioner has filed the present application under section 397 read with section 401 Cr.P.C. challenging the impugned order dated 16.12.2011 passed by the learned Additional Sessions Judge, Andaman and Nicobar Islands, Port Blair, in SC No.63/10 whereby the learned ST No.80/10 Additional Sessions Judge has rejected the application under section 311 Cr.P.C. filed by the petitioner. The petitioner wanted to recall three witnesses who were examined, fully cross-examined and thereafter discharged. It appears from the impugned order itself that such examination and crossexamination of such witnesses took place long time back. The learned Additional Sessions Judge has found that with regard to two of the aforesaid witnesses, the cross-examination was done ten months back and with regard to the other witness the said learned Additional Sessions Judge has found that the said witness was fully crossexamined long back. It appears from the impugned order itself that the prosecution closed evidences of PWs on 14.11.2011 and after that the case was fixed for examination of the accused under section 313 Cr.P.C. on 30.11.2011. But, on that day, learned lawyer for the accused wanted time and time was allowed and 5.12.2011 was fixed for examination of the accused under section 313 Cr.P.C. But, on that day also the learned lawyer for the accused also prayed for time on the ground of un-readiness and the learned Additional Sessions Judge has also found that the learned lawyer for the accused similarly wanted time on 8.12.2011 and again on 12.12.2011 and such time was allowed and ultimately accused was examined under section 313 Cr.P.C. on 15.12.2011. The learned Additional Sessions Judge has found that the learned lawyer for the accused filed the petition under section 311 Cr.P.C. on 15.12.2011 to recall the said three prosecution witnesses. The learned advocate appearing on behalf of the petitioner has referred to a decision reported in AIR 1991 SCC 1346 in support of his contention that the Court has power to recall a witness at any stage of the proceedings. There is no dispute with regard to such proposition of law as has already been observed in the said reports. In the said reports, the Hon’ble Supreme Court has been pleased to observe that there should be a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The said learned advocate cited another decision reported in 1999 C Cr. LR(Cal) 489 in support of his contention that it is not necessary to mention the specific questions which may be required to be asked, in the application under section 311 Cr.P.C. The said learned advocate submitted that in such circumstances, the learned Additional Sessions Judge acted illegally in rejecting the application for recalling the witnesses and considering the nature of the case, particularly the seriousness of it, the learned Additional Sessions Judge should have allowed the said application under section 311 Cr.P.C. The learned advocate appearing on behalf of the Respondent- State has submitted that the said application under section 311 Cr.P.C. has no merit at all and it has been filed long after the witnesses were examined, fully cross-examined and discharged. He cited a decision reported in 2006 (9) SCC 385. In paragraph 9 of the said reports, the Hon’ble Supreme Court has been pleased to observe that, “…no reasonable person properly instructed in law would allow an application filed by the accused to recall the eyewitnesses after a lapse of more than one year that too after the witnesses were examined, cross-examined and discharged.” The said learned advocate cited another decision reported in 2007 (11) SCC 191 in support of his contention that since in the present case recording of the statements of the accused under section 313 Cr.P.C. is over, the application under section 311 Cr.P.C. should not be entertained. Having heard the learned advocates for the respective parties and having considered the facts and circumstances of the case, it appears to this Court that the learned Additional Sessions Judge concerned did not find it necessary at all to recall any of the said witnesses as he has found that there is no merit in the petition either legally or otherwise. The observations and the findings made by the learned Additional Sessions Judge in the impugned order also show that attempt was made on behalf of the accused to delay the proceedings. Keeping the observations of the Hon’ble Supreme Court, as quoted above, in mind (i.e. the observations of the Hon’ble Court in 2006 (9) SCC 386) and the facts and circumstances of this case, this Court is of the view that the learned Additional Sessions Judge concerned has rightly rejected the application under section 311 Cr.P.C. There is no merit in the present application under section 397 read with section 401 Cr.P.C. Accordingly, the present application is dismissed. Let this order be communicated to the learned court below concerned immediately. ( Tapan Kumar Dutt, J. )

The petitioners, as plaintiffs, have filed a suit for partition and in such suit, the Trial Court has passed an order of status quo in respect of the suit property till the disposal of the suit. The defendant No.2 in the suit filed an application under Order 39 Rule 4 C.P.C. for modification of the said order of status quo and the learned Trial Court after hearing both the sides ultimately permitted the said defendant No.2 to complete his construction by order dated 22.09.2011.

IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH AT PORT BLAIR … CR No.005 of 2012 ( Mrs.P.Omana & ors. Vs. Mr.P.Sivan & Ors.) Mr.Arun S. Kumar ... for the petitioners Mr.Krishna Rao … for respondents January 18, 2012 The petitioners, as plaintiffs, have filed a suit for partition and in such suit, the Trial Court has passed an order of status quo in respect of the suit property till the disposal of the suit. The defendant No.2 in the suit filed an application under Order 39 Rule 4 C.P.C. for modification of the said order of status quo and the learned Trial Court after hearing both the sides ultimately permitted the said defendant No.2 to complete his construction by order dated 22.09.2011. The said order dated 22.09.2011 was challenged by the petitioners in Misc. Appeal No.20 of 1011 before the learned District Judge, A & N Islands. The learned District Judge by the impugned order dated 13.01.2012 affirmed the said order dated 22.09.2011 and dismissed the Misc. Appeal. On perusal of the order dated 22.09.2011 passed by the learned Trial Court, it appears that a Report of the Commissioner appointed under Order 26 Rule 9 C.P.C. was considered by the learned Trial Court. The learned Trial Court found that the defendant No.2 has no suitable and safe accommodation at present and for such reason construction of a new house on the suit land covering an area of 90/95 square meters is required and it will not prejudice the plaintiffs or any other party to the suit since such parties have also constructed their house thereon. The learned Trial Court further found that the defendant No.2 is presently residing in a house which is in a dilapidated condition and the learned Trial Court took into consideration the apprehension of the said defendant that owing to such dilapidated condition of the house there may be injury to persons and property. The said learned Trial Court also considered the said Report and came to the conclusion that repairing the present house of the defendant No.2 may not be sufficient and the entire building is to be renovated. The learned Trial Court was of the view that it was an exceptional circumstance and, therefore, the defendant No.2 should be permitted to complete his construction. The learned Trial Court directed that the construction work can be done only in presence of the Commissioner appointed by the Court and the defendant No.2 will not encroach any further portion beyond the present area and such construction shall be only for the purpose of the defendant No.2’s safe accommodation and the defendant No.2 shall not be entitled to claim any equity with regard to such construction. The learned Trial Court gave other directions also as it appears from the said order dated 22.09.2011. The learned lower Appellate Court considered the entire aspect of the matter and concurred with the view of the learned Trial Court. The learned advocate for the petitioners submits that it is disputed that the plaintiffs constructed their own house, and no exceptional circumstances exist for permitting the defendant No.2 to complete his construction. As it appears from the records that both the learned Courts below made concurrent finding with regard to the exceptional circumstance under which the defendant No.2 was permitted to complete his construction. With regard to such finding of fact, this Court is not inclined to interfere with such concurrent findings in its Revisional Jurisdiction. The learned advocate appearing on behalf of the petitioners cited a decision reported at AIR 2005 SC 104 and referred to paragraphs 7 and 10 of the said reports in support of his contention that generally during the pendency of the suit status quo should be maintained as it existed on the date of the suit and it is only in exceptional circumstance and where irreparable damage is feared, the Courts permit change of status quo. In the facts of the present case, as already discussed above, both the learned Courts below have come to the conclusion that exceptional circumstances do exist in the present case. Therefore, the said reports cannot be of any assistance to the petitioners in the present case. Accordingly, this Court does not find any merit in the present application under Article 227 of the Constitution of India. The application is, accordingly, dismissed. Urgent certified xerox copy of this order, if applied for by the parties, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities. ( Tapan Kumar Dutt, J. )

impound a passport=the authority to impound a passport is the Passport Authority and the police, who seizes it during the course of investigation and the court in which the same is produced do not have the power to impound and that if the passport is to be impounded, it should be sent to the Passport Authority along with a request to impound the passport. Any order passed by the Passport Authority can be challenged by the aggrieved party

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/01/2012 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR CRL.R.C(MD)No.11 of 2012 and M.P(MD)No.1 of 2012 M.Ismayil ..Petitioner Vs The Inspector of Police Airport Police Station, Trichy, Crime No.396 of 2011. ..Respondent Prayer Criminal Revision case filed under Section 397 and 401 of Cr.P.C. to call for the records pertaining to the impugned order passed in Cr.M.P.No.1970 of 2011, on the file of the Judicial Magistrate No.VI, Trichy, dated 14.11.2011 and to set aside the same. !For Petitioner ... M/s.N.Sankar Ganesh ^For Respondent ... Mrs.S.Prabha Govt.Advocate(Crl.Side) :ORDER Mrs.S.Prabha, learned Government Advocate(Crl.Side) has taken notice on behalf of the respondent/Police. The Criminal Revision Case can be disposed of on a short point of interpretation of law and hence, this Court deems it appropriate to dispose of the Criminal Revision Case at the stage of admission itself, after hearing both sides and upon perusing the impugned order of the learned Judicial Magistrate and the connected papers produced by the petitioner in the form of typed-set of papers. The learned Government Advocate(Crl.Side) also concedes that the Criminal Revision Case can be disposed of in the manner pointed out above. 2. The petitioner is the sole accused in Cr.No.396 of 2011, registered on the file of the Airport Police Station, Trichy, for alleged offences under Section 419 and 420 IPC. Besides arresting the petitioner/accused in the said case, the respondent/Inspector of Police, Airport Police Station, Trichy also seized his passport bearing Passport Number H 8841154 and produced it in the court of the learned Judicial Magistrate No.VI, Trichy. The petitioner/accused was released on bail subsequently. Thereafter, he filed a petition under Section 451 Cr.P.C., praying for the return of his passport. The learned Judicial Magistrate, accepting the contention of the respondent that the petitioner/accused would flee from justice if the passport was released, dismissed the said petition, namely, Cr.M.P.No.1970 of 2011 by the impugned order dated 14.11.2011. It is surprising to note that the learned Judicial Magistrate, even after narrating the relevant passage in the judgment of the Honourable Supreme Court in Suresh Nanda .vs. Central Bureau of Investigation reported in (2008) 1 MLJ(Crl)1195(SC)=(2008) 2 Supreme Court Cases(Crl)121, chose to dismiss the said petition. 3. In the above cited case, Honourable Supreme Court has stated that the Court does not have the power under Section 104 of Cr.P.C to impound the passport, that the police who seized the passport using its authority given under Section 102 Cr.P.C also cannot impound the same and that if the passport is to be impounded, it must be sent to the Passport Authority with a request for impounding the same. The learned Judicial Magistrate observed that the said observation made by the Supreme Court in the said judgment would not be applicable to the facts of this case. This Court wonders how the learned Judicial Magistrate could have distinguished the facts of the case from the facts of the case dealt with by the Supreme Court. Without elaborating as to how the case of the petitioner is distinguishable from the case dealt with by the Supreme Court, the learned Judicial Magistrate seems to have simply executed his pre-conceived decision to negative the claim made by the petitioner. 4. It is pertinent to note that the Honourable Supreme Court in clear and unambiguous terms has held that the authority to impound a passport is the Passport Authority and the police, who seizes it during the course of investigation and the court in which the same is produced do not have the power to impound and that if the passport is to be impounded, it should be sent to the Passport Authority along with a request to impound the passport. Any order passed by the Passport Authority can be challenged by the aggrieved party. In the case that was decided by the Supreme Court, the ultimate direction issued was that the police should send the passport along with a request to the Passport Authority for impounding it and the passport-holder could approach the passport Authority to get the same. 5. In this case, no violation of the provisions of the Passport Act has been alleged. Under such circumstances, had the learned Judicial Magistrate directed his Office or the Police to send the passport to the Passport Office where from the petitioner can obtain it by making necessary application, the order of the learned Judicial Magistrate would have been somewhat sustainable. But the learned Judicial Magistrate has gone to the extent of simply dismissing the petition on the premise that if the petitioner was given the passport, he would flee from justice. The said order of the learned Judicial Magistrate cannot withstand the scrutiny of this Court. It is totally unsustainable, besides being against the view expressed by the Honourable Supreme Court. 6.Hence, this Court comes to the conclusion that the Criminal Revision Case deserves to be allowed, with the result that the impugned order of the learned Judicial Magistrate No.VI, Trichy, dated 14.11.2011 made in Cr.M.P.No.1970 of 2011 in Cr.No.396 of 2011 shall be set aside and the said Cr.M.P shall stand allowed, directing return of the passport of the petitioner bearing Passport Number H 8841154. By way of clarification, it is made clear that this Order shall not come in the way of the Police separately applying to the Passport Authority for impounding the passport under the provisions of the Passport Act. The said liberty given to the police is not a licence either to the Police or to the Court to withhold the passport and refuse to hand it over to the petitioner in compliance with this Order. Consequently, connected Miscellaneous Petition is closed. vsn To 1. The Inspector of Police Airport Police Station, Trichy. 2. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

Passport Act, 1967: s.10(3)(e) - Impounding of passport of - NRI - FIR against - During search operation, passport seized - Retained by CBI under orders of Court - HELD: Retention of passport by CBI is clearly illegal as it has not been done in conformity with provisions of law and there is no order of the passport authorities u/s 10(3)(e) or by Central Government u/s 10-A to impound passport - Passport could not have been impounded except by passport authority in accordance with law - Passport Act being a specific one and s.104 Cr.P.C. being a general provision, by necessary implication power of court to impound any document or thing produced before it would exclude passport - Expressions `seizure' and `impounding' - Connotation of - Code of Criminal Procedure, 1973 - ss.102 and 104 - Interpretation of Statutes. Code of Criminal Procedure, 1973: s.102 - Seizure of document by police - HELD: Police may have power to seize a passport, it does not have power to retain or impound the same because that can only be done by passport authority u/s 10(3) of the Passport Act - If police seizes a passport u/s 102 of Code, it must send the same along with a letter to passport authority stating as to why seized passport deserves to be impounded u/s 10 of Passport Act - It is then for passport authority to decide whether to impound the passport or not - Passport to be returned to the owner - Passport Act, 1967 - ss. 10(3)(E) AND 10-A. Words and Phrases: Expressions `seizure' and `impounding' - Connotation of in the context of Passport Act, 1967 and Cr. P.C. Satwant Singh Sawhney Vs. D. Ramarathnam, Asstt. Passport Officer (1967) 3 SCR 525; Maneka Gandhi Vs. Union of India and another (1978) 1 SCC 248; Dam Valaji Shah & another Vs. L.I.C. of India & others AIR 1966 SC 135; Gobind Sugar Mills Ltd. Vs. State of Bihar & others 1999(7) SCC 76; and Belsund Sugar Co. Ltd. Vs. State of Bihar and others AIR 1999 SC 3125; and State of Orissa Vs. Binapani Dei AIR 1967 SC 1269 - referred to. Law Lexicon by P. Ramanatha Aiyar (2nd Edition); and Principles of Statutory Interpretation by G.P. Singh (9th Edition) - referred to. Harish N. Salve, Sidharth Luthra, Mukul Rohtagi, Sandeep Kapur, Ruchin Midha, R.N. Karanjawala and Manik Karanjawala for the Appellant. A. Sharan, A.S.G., A. Mariarputham and B. Krishna Prasad for the Respondent. =2008 AIR 1414, 2008(1 )SCR1212, 2008(3 )SCC674 , 2008(2 )SCALE46 , 2008(2 )JT174

CASE NO.: Appeal (crl.) 179 of 2008 PETITIONER: SURESH NANDA RESPONDENT: C.B.I. DATE OF JUDGMENT: 24/01/2008 BENCH: P.P. NAOLEKAR & MARKANDEY KATJU JUDGMENT: JUDGMENT O R D E R [ ARISING OUT OF S.L.P.(CRL.) 3408 OF 2007 ] 1. Leave granted. 2. The appellant claims to be a non-resident Indian settled in United Kingdom for the last 23 years. The passport of the appellant as well as other documents were seized by the respondent from 4, Prithviraj Road, New Delhi in a search conducted on 10.10.2006 when the appellant was on a visit to India. The said search and seizure was pursuant to an F.I.R. dated 9.10.2006 registered on the basis of a sting operation carried out by a news portal in the year 2001. The passport seized during the search was retained by the C.B.I. officials. An application was moved by the appellant before the Special Judge, C.B.I., Patiala House Courts, New Delhi praying for release of his passport so that he can travel abroad to London and Dubai for a period of 15 days. The learned Special Judge, by order dated 15.1.2007, directed the release of the passport to the appellant by imposing upon him certain conditions. Aggrieved against the order passed by the learned Special Judge, C.B.I., the respondent preferred a Criminal Revision before the High Court. The High Court, by order dated 5.2.2007, reversed the order of the learned Special Judge and refused to release the passport to the appellant. Aggrieved against the order of the High Court, present appeal, by special leave, has been preferred by the appellant. 3. Learned senior counsel appearing for the appellant submitted that the power and jurisdiction to impound the passport of any individual has to be exercised under the Passports Act, 1967 (hereinafter referred to as The Act ). He specifically referred to sub-section (3)(e) of Section 10 of the Act which reads as under: (3) The passport authority may impound or cause to be impounded or revoke a passport or travel document - (e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India: Reference was also made to Section 10A of the Act which has been introduced by Act 17/2002 w.e.f. 17.10.2001. 4. Learned senior counsel for the appellant also placed reliance on the decision of 5- Judge Bench of this Court in Satwant Singh Sawhney Vs. D. Ramarathnam, Asstt. Passport Officer (1967) 3 SCR 525 wherein in para 31, it was held as under: 31: For the reasons mentioned above, we would accept the view of Kerala, Bombay and Mysore High Courts in preference to that expressed by the Delhi High Court. It follows that under Article 21 of the Constitution no person can be deprived of his right to travel except according to procedure established by law. It is not disputed that no law was made by the State regulating or depriving persons of such a right. 5. A similar view is reiterated in the decision rendered by 7-Judge Bench of this Court in Maneka Gandhi Vs. Union of India and another (1978) 1 SCC 248 wherein at page 280, it was held as under: ....Now, it has been held by this Court in Satwant Singh's case (supra) that 'personal liberty' within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law. Prior to the enactment of the Passports Act, 1967, there was no law regulating the right of a person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to the petitioner in Satwant Singh's case (supra) was struck down as invalid. It will be seen at once from the language of Article 21 that the protection it secures is a limited one. It safeguards the right to go abroad against executive interference which is not supported by law; and law here means 'enacted law' or 'State law' (Vide A.K. Gopalan's case). Thus, no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure..... 6. On the other hand, learned Additional Solicitor General appearing for the respondent submitted that the passport was seized and impounded by exercising the powers under Section 102 read with Sections 165 and 104 of Code of Criminal Procedure (hereinafter referred to as the Cr.P.C. ). He further contended that the power to retain and impound the passport has been rightly exercised by the respondent as there is an order dated 3.11.2006 passed by the learned Special Judge for C.B.I. exercising the power under Section 104 of Cr.P.C. 7. Sub-section (3)(e) of Section 10 of the Act provides for impounding of a passport if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India. Thus, the Passport Authority has the power to impound the passport under the Act. Section 102 of Cr.P.C. gives powers to the police officer to seize any property which may be alleged or suspected to have been stolen or which may be found under circumstances which create suspicion of the commission of any offence. Sub-section (5) of Section 165 of Cr.P.C. provides that the copies of record made under sub-section (1) or sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance to the offence whereas Section 104 of Cr.P.C. authorizes the court to impound any document or thing produced before it under the Code. Section 165 of Cr.P.C. does not speak about the passport which has been searched and seized as in the present case. It does not speak about the documents found in search, but copies of the records prepared under sub-section (1) and sub-section (3). Impound means to keep in custody of the law. There must be some distinct action which will show that documents or things have been impounded. According to the Oxford Dictionary impound means to take legal or formal possession. In the present case, the passport of the appellant is in possession of CBI right from the date it has been seized by the CBI. When we read Section 104 of Cr.P.C. and Section 10 of the Act together, under Cr.P.C., the Court is empowered to impound any document or thing produced before it whereas the Act speaks specifically of impounding of the passport. 8. Thus, the Act is a special Act relating to a matter of passport, whereas Section 104 of the Cr.P.C. authorizes the Court to impound document or thing produced before it. Where there is a special Act dealing with specific subject, resort should be had to that Act instead of 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. See : Damji Valaji Shah & another Vs. L.I.C. of India & others [AIR 1966 SC 135]; Gobind Sugar Mills Ltd. Vs. State of Bihar & others [1999(7) SCC 76]; and Belsund Sugar Co. Ltd. Vs. State of Bihar and others [AIR 1999 SC 3125]. 9. The Act being a specific Act whereas Section 104 of Cr.P.C. is a general provision for impounding any document or thing, it shall prevail over that Section in the Cr.P.C. as regards the passport. Thus, by necessary implication, the power of Court to impound any document or thing produced before it would exclude passport. 10. In the present case, no steps have been taken under Section 10 of the Act which provides for variation, impounding and revocation of the passports and travel documents. Section 10A of the Act which provides for an order to suspend with immediate effect any passport or travel document; such other appropriate order which may have the effect of rendering any passport or travel document invalid, for a period not exceeding four weeks, if the Central Government or any designated officer on its satisfaction holds that it is necessary in public interest to do without prejudice to the generality of the provisions contained in Section 10 by approaching the Central Government or any designated officer. Therefore, it appears that the passport of the appellant cannot be impounded except by the Passport Authority in accordance with law. The retention of the passport by the respondent (CBI) has not been done in conformity with the provisions of law as there is no order of the passport authorities under Section 10(3)(e) or by the Central Government or any designated officer under Section 10A of the Act to impound the passport by the respondent exercising the powers vested under the Act. 11. Learned Additional Solicitor General has submitted that the police has power to seize a passport in view of Section 102(1) of the Cr.P.C. which states: Power of police officer to seize certain property:(1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence . In our opinion, while the police may have the power to seize a passport under Section 102(1) Cr.P.C, 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. 12. It may be mentioned that there is a difference between seizing of a document and impounding a document. 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. In the Law Lexicon by P. Ramanatha Aiyar (2nd Edition), the word impound has been defined to mean to take possession of a document or thing for being held in custody in accordance with law . Thus, the word impounding really means retention of possession of a good or a document which has been seized. 13. Hence, while the police may have power to seize a passport under Section 102 Cr.P.C. if it is permissible within the authority given under Section 102 of Cr.P.C., it does not have power to retain or impound the same, because that can only be done by the passport authority under Section 10(3) of the Passports Act. Hence, if the police seizes a passport (which it has power to do under Section 102 Cr.P.C.), thereafter the police must send it along with a letter 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 Act. It is thereafter the passport authority to decide whether to impound the passport or not. Since impounding of a passport has civil consequences, the passport authority must give an opportunity of hearing to the person concerned before impounding his passport. It is well settled that any order which has civil consequences must be passed after giving opportunity of hearing to a party vide State of Orissa Vs. Binapani Dei [Air 1967 SC 1269]. 14. In the present case, neither the passport authority passed any order of impounding nor was any opportunity of hearing given to the appellant by the passport authority for impounding the document. It was only the CBI authority which has retained possession of the passport (which in substance amounts to impounding it) from October, 2006. In our opinion, this was clearly illegal. Under Section 10A of the Act retention by the Central Government can only be for four weeks. Thereafter it can only be retained by an order of the Passport authority under Section 10(3). 15. In our opinion, even the Court cannot impound a passport. Though, no doubt, Section 104 Cr.P.C. states that the Court may, if it thinks fit, impound any document or thing produced before it, in our opinion, this provision will only enable the Court to impound any document or thing other than a passport. This is because impounding a passport is provided for in Section 10(3) of the Passports Act. The Passports Act is a special law while the Cr.P.C. is a general law. It is well settled that the special law prevails over the general law vide G.P. Singh's Principles of Statutory Interpretation (9th Edition pg. 133). This principle is expressed in the maxim Generalia specialibus non derogant . Hence, impounding of a passport cannot be done by the Court under Section 104 Cr.P.C. though it can impound any other document or thing. 16. For the aforesaid reasons, we set aside the impugned order of the High Court and direct the respondent to hand over the passport to the appellant within a week from today. However, it shall be open to the respondent to approach the Passport Authorities under Section 10 or the authorities under Section 10A of the Act for impounding the passport of the appellant in accordance with law. 17. We, however, make it clear that we are not expressing any opinion on the merits of the case and are not deciding whether the passport can be impounded as a condition for grant of bail. 18. The appeal stands disposed of accordingly.

Reassessment of stamp duty and penalty as per stamp act by addl. collector - found wrong=The District Magistrate, Lucknow made a spot inspection of the property in question on 21.07.2003. During inspection, the land has been found having an area of 12,099 sq. ft. with a two storey building having an area of 5,646.3 sq. ft. at ground floor and an area of 5192.3 sq. ft. at the first floor. In the inspection report, the property in question has been valued for Rs. 3,87,74,097/- and the stamp duty on the said property has been calculated by the competent authority as Rs. 38,78,000/-. However, at the time of purchase, respondents herein paid Rs. 15,53,000/- as Stamp duty, 2 =Merely because the property is being used for commercial purpose at the later point of time may not be a relevant criterion for assessing the value for the purpose of stamp duty.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 735 OF 2012 (Arising out of SLP (C) No. 33851 of 2009 State of U.P. & Ors. .... Appellant (s) Versus Ambrish Tandon & Anr. .... Respondent(s) J U D G M E N T P. Sathasivam, J. 1) Leave granted. 2) This appeal is filed against the final judgment and order dated 25.01.2007 passed by the Division Bench of the High Court of Judicature at Allahabad in Writ Petition No. 732 (M/B) of 2005 whereby the Division Bench while allowing the petition filed by the respondents herein issued a writ in the nature of certiorari quashing the impugned order dated 1 27.09.2004 passed by the Additional Collector (Finance & Revenue), Lucknow and the demand notice dated 20.01.2005. 3) Brief Facts: a) A Sale Deed dated 16.04.2003 was executed between Har Charan Singh and the respondents herein in respect of the property situated at 17/1 Ashok Marg, Lucknow measuring 11,029 sq. ft. and registered as Sale Deed Document No. 5341 of 2003. The total value of the property was computed as Rs. 1,55,28,860/- for the purposes of Stamp Duty and the respondents herein paid Rs. 15,53,000/- as stamp duty. b) The District Magistrate, Lucknow made a spot inspection of the property in question on 21.07.2003. During inspection, the land has been found having an area of 12,099 sq. ft. with a two storey building having an area of 5,646.3 sq. ft. at ground floor and an area of 5192.3 sq. ft. at the first floor. In the inspection report, the property in question has been valued for Rs. 3,87,74,097/- and the stamp duty on the said property has been calculated by the competent authority as Rs. 38,78,000/-. However, at the time of purchase, respondents herein paid Rs. 15,53,000/- as Stamp duty, 2 hence a deficiency of Rs. 23,50,000/- has been pointed out by the authorities. The District Magistrate, vide report dated 26.07.2003, directed to register a case against the respondents herein c) On the basis of the aforesaid report, Case No. 653 Stamp-2003 under Sections 47A/33 of the Indian Stamp Act, 1899 (in short `the Act') was registered. Vide order dated 27.09.2004, the Additional Collector (Finance & Revenue) Lucknow directed the respondents to make good the deficiency in the stamp duty and also imposed a penalty amounting to Rs. 8,46,000/- for such tax evasion. On 20.01.2005, for failure to deposit the aforesaid amount, a demand notice claiming an amount of Rs. 38,30,500/- plus 10% recovery charges was issued and the respondents herein were directed to pay the said amount within a period of seven days. d) Being aggrieved by the order dated 27.09.2004 and demand notice dated 20.01.2005, the respondent filed a writ petition being No. 732 of 2005 before the High Court. By order dated 25.01.2007, the High Court, while allowing the petition filed by the respondents herein issued a writ in the nature of 3 certiorari quashing the impugned order dated 27.09.2004 passed by the Additional Collector (Finance & Revenue), Lucknow and the demand notice dated 20.01.2005. e) Aggrieved by the said decision, the State has preferred this appeal by way of special leave petition before this Court. 4) Heard Mr. Shail Kumar Dwivedi, learned Addl. Advocate General for the appellant-State and Mr. K.V. Viswanathan, learned senior counsel for the respondents. 5) The only question for consideration in this appeal is whether the High Court is justified in interfering with the order dated 27.09.2004 passed by the Additional Collector (Finance and Revenue), Lucknow demanding differential stamp duty with interest and penalty in respect of the sale deed dated 16.04.2003 executed in favour of the respondents herein. According to the respondents, through a registered Sale Deed dated 16.04.2003 they have purchased the house No. 17/1 Ashok Marg, Lucknow for a total sale consideration of Rs.1.5 crores on which required stamp duty of Rs. 15.53 lakhs was paid. When the Additional Collector issued a notice under Section 47A/33 of the Act, the respondents submitted 4 objection dated 29.08.2003 stating that the extent, area and valuation are in accordance with the revenue records and the stamp duty paid by them on the sale deed was proper. It is also stated by the respondents that before passing the order dated 27.09.2004, the Additional Collector (Finance and Revenue) Lucknow has not afforded sufficient opportunity to them and the impugned order was passed in a most arbitrary manner ignoring the objection submitted by them. It is also stated that at the time of sale deed the house was a residential property and in order to avoid unnecessary harassment at the hands of the revenue and for the purpose of stamp duty and registration they had valued the said property at the rate fixed by the Collector, Lucknow treating the land as commercial at the rate of Rs.11,300 per sq. metre. In other words, for the purpose of stamp duty and registration, according to the respondents, they added additional 10% to the value. 6) In support of the contention that they were not given adequate opportunity by the Addl. Collector and order was passed on a public holiday, before the High Court as well as in this Court, the respondents herein have placed the order sheet 5 which contains the various dates and the date on which the ultimate decision was taken by him. It shows that the matter was heard and decided on a public holiday. In all fairness, the High Court instead of keeping the writ petition pending and deciding itself after two years could have remitted the matter to the Addl. Collector for fresh orders. However, it had gone into the details as to the area of the plot, nature of the building i.e. whether it is residential or non-residential and based on the revenue records and after finding that at the time of execution of the sale deed, the house was used for residential purpose upheld the stand taken by the respondents and set aside the order dated 27.09.2004 passed by the Addl. Collector. 7) Learned counsel appearing for the appellant-State submitted that as per the provisions of the Act and the Rules made therein, there is a provision for appeal and instead of resorting the same, the respondents have straightaway approached the High Court by exercising writ jurisdiction under Article 226 which is not permissible. A perusal of the proceedings before the High Court show that the State was not 6 serious in raising this objection relating to alternative remedy and allowed the High Court to pass orders on merits, hence we are not entertaining such objection at this juncture though it is relevant. In fact, on receipt of the notice from the High Court in 2005, the appellants who are respondents before the High Court could have objected the writ petition filed under Article 226 and sought for dismissal of the same for not availing alternative remedy but the fact remains that unfortunately the State or its officers have not resorted to such recourse. 8) We have already held that it is the grievance of the respondents that the orders were passed by the Additional Collector on a public holiday. Regarding the merits though the Collector, Lucknow made a surprise site inspection, there is no record to show that all the details such as measurement, extent, boundaries were noted in the presence of the respondents who purchased the property. It is also explained that the plot in question is not a corner plot as stated in the impugned order as boundaries of the plot mentioned in the freehold deed executed by Nazool Officer and in the sale deed 7 dated 16.04.2003 only on one side there is a road. It is also demonstrated that at the time of execution of the sale deed, the house in question was used for residential purpose and it is asserted that the stamp duty was paid based on the position and user of the building on the date of the purchase. The impugned order of the High Court shows that it was not seriously disputed about the nature and user of the building, namely, residential purpose on the date of the purchase. Merely because the property is being used for commercial purpose at the later point of time may not be a relevant criterion for assessing the value for the purpose of stamp duty. The nature of user is relatable to the date of purchase and it is relevant for the purpose of calculation of stamp duty. Though the matter could have been considered by the Appellate Authority in view of our reasoning that there was no serious objection and in fact the said alternative remedy was not agitated seriously and in view of the factual details based on which the High Court has quashed the order dated 27.09.2004 passed by the Additional District Collector, we are not inclined to interfere at this juncture. 8 9) Under these circumstances, we find no valid ground for interference with the impugned order of the High Court. Consequently, the appeal fails and the same is dismissed with no order as to costs. .................................................J. (P. SATHASIVAM) ................................................J. (J. CHELAMESWAR) NEW DELHI; JANUARY 20, 2012. 9