The Jammu and Kashmir and Ladakh High Court has pulled up authorities for denying passport to PDP chief Mehbooba Mufti's mother, saying the passport officer cannot "act as a mouthpiece" of the CID.
Justice M A Chowdhary, while hearing the petition of Mehbooba Mufti's mother Gulshan Nazir, said it appears, there is no ground to refuse her request for issue or renewal of passport.
"Even, there is not an iota of allegation against the petitioner that may point out to any security concerns. The police verification report formulated by CID-CIK cannot override the statutory provisions of Section 6 of the Passport Act 1967," the judge said in an order pronounced on Saturday.
The court said otherwise also, in the report relied upon by the respondents --the passport officer and the appellant authority -- nothing adverse has been recorded against the petitioner with regard to any security concerns.
"The only aspect with regard to the petitioner is the reference of investigation by two agencies Enforcement Directorate and the CID-CIK with regard to some of the transactions regarding some bank accounts maintained by the petitioner either separately or jointly with Ms. Mehbooba Mufti," it said.
Simply on the basis of the report of the Jammu and Kashmir Crime Investigation Department (CID) that has recommended that passport should not be issued, the passport officer, under the provisions of the Passport Act, cannot "shut his eyes and to act on that", the court said.
Coming down heavily on authorities, it said since the passport applied for by the petitioner has not been issued as the same was not recommended for security clearance by the CID, the decision taken by both – the passport officer as well as the appellant authority – "is misplaced on account of security".
The court said the refusal by the passport officer was "non-application of mind".
"At least, the passport officer should have, in the background of the facts and circumstances, if required, asked the police and the CID agency as to whether there is anything adverse against the petitioner," the court said.
"In such a situation without going into the police verification report, refusal on part of the passport officer simply be termed as non-application of mind," it said.
After looking into the referred facts and circumstances, along with the CID report, the court said "The passport officer has not to act as mouthpiece of the CID".
"When an authority is vested with the power, the same is to be exercised judiciously and not arbitrarily as has been done in the instant case," it said.
Justice Chowdhary said it appears that the passport officer had acted on the forwarding letter of the CID instead of analysing its report in detail.
It said the police verification report prepared by the CID was with regard to two applications, one by the petitioner and the other by her daughter.
The report has exhaustively dealt with regard to the petitioner's daughter making references to her ideology and activities which were termed as a risk to the security of India, the court said.
"However, there is no mention with regard to the petitioner in the report in question, on the basis of which recommendation was not made to re-issue passport in favour of the petitioner and the passport officer refused to issue the same for the reason of 'security'," it said.
The appellate authority also seems not to have perused the police verification report and upheld the order of the passport officer, "on the wrong premise of security without any foundation".
The court said it is of the considered opinion that the ground on which the request of the petitioner for re-issue of the passport has been rejected "is totally untenable and unsustainable" in the eyes of the law.
The petitioner, who claims to be an octogenarian, in the absence of any adverse security report, cannot be deprived of her fundamental right guaranteed to her under Article 21 of the Constitution to travel abroad as an Indian citizen, it added.
Allowing the petition, the court set aside the orders impugned and asked the passport officer to consider the entire matter afresh and pass orders within a period of six weeks from the date the copy of the order is served upon him.
