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Synopsis

The Delhi High Court has allowed an applicant, aged approximately 73 years, and convicted under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, to travel abroad to undertake the sacred Hajj pilgrimage.

Justice Swarna Kanta Sharma, presiding over the case, recognised the deeply rooted significance of the Hajj pilgrimage stating that, “The Hajj pilgrimage holds immense significance in the Islamic faith, representing one of the five pillars of Islam, and is a religious duty for every Muslim. Its importance cannot be overstated, both spiritually and culturally, for Muslims.”

The petitioner / applicant, Syed Abu Ala, had been convicted by a trial court under various sections of the NDPS Act and was sentenced to rigorous imprisonment along with fines. While his appeal was pending, he approached the High Court seeking permission to perform Umrah in Makka Madina (Mecca) and requested the issuance of a passport to facilitate his travel.

After serving a sentence of approximately 10 years and 3 months, the petitioner proceeded to appeal against their conviction before the pertinent court. Subsequently, the court suspended his sentence through an order dated May 30, 2011. However, this suspension came with a stipulation that the applicant remain within the confines of Delhi and surrender his passport.

The counsel representing the petitioner contended that Syed diligently adhered to the conditions outlined in the suspension order, including the surrender of his passport, to the Regional Passport Office in Delhi. Furthermore, it was asserted that the applicant has consistently abided by all terms and conditions stipulated in the suspension order.

The counsel also emphasised that the applicant, aged approximately 73 years, expresses a fervent desire to fulfill a sacred pilgrimage to Makka Madina in Saudi Arabia to perform Umrah in the First Week of February 2024. It was highlighted that the Umrah pilgrimage typically spans a duration of three weeks, underscoring the significance of this religious journey for the applicant.

The court was also informed that the petitioner has taken the initiative to apply for the re-issuance of his passport with the Regional Passport Office, New Delhi, submitting the application on December 26, 2023. As a result, it was prayed before the court to grant permission for a period of four weeks, facilitating the appellant's journey to Makka Madina in Saudi Arabia to perform Umrah.

Additionally, the counsel urged the court to issue directives to the Regional Passport Officer, New Delhi, for the re-issuance of the passport in favour of the petitioner, thereby enabling him to undertake the pilgrimage to Saudi Arabia.

In contrast, the Special Counsel representing the Narcotics Control Bureau (NCB) argued that the petitioner's plea merely reiterates conditions set forth in a previous court order suspending his sentence. Stressing the gravity of the appellant's conviction under the NDPS Act and the prolonged pendency of the appeal since 2010, the Special Counsel contended that it is in the interest of justice to conclude the appeal before considering the current application. Consequently, the Special Counsel urged the Court to dismiss the petitioner’s application.

Considering the provisions of the Passports Act, 1967, particularly Section 6(2) outlining grounds for the refusal of a passport, the Court analysed the petitioner's case. It highlighted two specific grounds under which a passport could be refused: if the applicant had been convicted of a morally reprehensible offence and sentenced to imprisonment for at least two years within the last five years, or if there were pending criminal proceedings against the applicant.

Referring to a previous decision of the Delhi High Court in Sabir v. State (NCT of Delhi), the Court clarified the distinction between clauses (e) and (f) of Section 6(2) of the Passports Act, emphasising that clause (e) pertains to cases where no appeal from conviction is pending, while clause (f) relates to cases where an appeal is pending.

In its assessment, the Court noted that the petitioner's appeal had been pending since 2010, and he had already served a substantial portion of his sentence in judicial custody before it was suspended. Additionally, the petitioner had been out on bail for over 13 years without any adverse reports of misusing his liberty.

Consequently, the Court exercised its discretion and granted exemption for the issuance of a passport to the petitioner, recognising his right to fulfill his religious obligations. Upholding the principles of compassion, empathy, and practical understanding, the Court underscored its commitment to balancing legal obligations with individual rights.

Conclusively, the Court affirmed its stance of not obstructing the petitioner's religious duties solely due to the prolonged pendency of his appeal and granted the petitioner permission to travel abroad for one month to Saudi Arabia for the purpose of performing Hajj/Umrah pilgrimage, subject to the following conditions:

i. The applicant must provide a personal bond of Rs.25,000/- along with one surety of a similar amount to the satisfaction of the concerned Trial Court.

ii. The applicant is required to inform the concerned Trial Court about their travel itinerary, including the date of departure and arrival.

iii. The applicant must refrain from exiting immigration at transit points, if any.

iv. Upon their return to India, the applicant must promptly submit a copy of their e-tickets and passport, which contains the entry regarding their visit, before the Trial Court.

 

Cause Title: Syed Abu Ala vs NCB [CRL. A. 1294/2010]