ARJUN MADOU DUGI Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner, a British citizen of Indian origin, is the accused in Crime No.1388 of 2024 registered at the Nedumbassery Police Station for offences punishable under Ss. 465 and 471 of the Indian Penal Code, Ss. 12(1) (b) and 12(1A) of the Passports Act, 1967 and Ss. 14A(a) and (b) of the Foreigners Act, 1946. The crime is registered on the allegation that the petitioner, a citizen of India and holder of an Indian passport, had surrendered his passport and procured a Portuguese Passport by submitting a forged Aadhar card and thereafter, obtained a British passport. The petitioner travelled to India with the Portuguese passport and attempted to return to the United Kingdom using his British passport on 24/12/2024. The Officers at the International Emigration Centre in the Cochin International Airport at Nedumbassery, found pages 17, 18, 19 and 20 missing from the petitioner's passport and informed the police. Thereupon, the petitioner was arrested and later granted bail as per Annexure-2 order dtd. 30/12/2024, subject to the petitioner remaining in Kerala under the strict supervision of the Civil Authority within the meaning of Paragraph 11 of the Foreigners Order, 1948 till the disposal of the case against him. The court also directed the Civil Authority to specify the place of residence of the petitioner. Accordingly, the petitioner was shifted from the Sub Jail to the Transit Home at Kottiyam and has been residing there since 1/1/2025.

(2.) Heard, Adv.K.Rajeswary for the petitioner, Senior Public Prosecutor, Vipin Narayanan for respondents 1 and 2, and Senior Panel Counsel Mini Gopinath for the 3 rd respondent.

(3.) Learned counsel for the petitioner submitted that her client is a person of Indian origin and had acquired Portuguese citizenship. Thereupon, he surrendered his Indian Passport and got it cancelled as evidenced by Annexure-4 communication dtd. 22/9/2016. Later, the petitioner acquired citizenship of the United Kingdom also. The petitioner was issued with Annexure-7 Visa by the Indian Government, valid for the period 24/6/2023 to 23/6/2024. He landed in India on 24/2/2024 and after spending time with friends and relatives, reached Nedumbassery Airport on 22/12/2024 for his travel back to London. Unfortunately, the center pages of petitioner's British passport were found missing. The petitioner had no idea about the missing pages, since the passport was used by him for the first time after its renewal on 29/1/2024. In all probability, the pages were either omitted to be stapled or lost at the time of delivery. According to the counsel, since the petitioner is not an Indian citizen and the pages are missing from his British passport, he cannot be prosecuted for offences under the Passports Act. The prosecution of the petitioner alleging violation of Indian laws, militates against the concept of sovereignty, passport being a political document issued by a sovereign state in favour of its citizen or subject. It is contended that a conjoint reading of Ss. 1(2) and 2(b) of the Passports Act would make it clear that the Act applies only to the citizens of India and is in relation to passports issued by the Government of India. Even though sub-sec. (1A) of Sec. 12 deals with persons who are not citizens of India also, accidental missing of pages from a British passport will not attract any of the offences under the Act. Referring to the decision in Balwinder Singh v. State [(2006) 134 DLT 700], it is submitted that the Delhi High Court has held that, attaching a plain sheet of paper to a blank page of the passport cannot be termed as alteration or attempt to alter the passport entries. It is argued that for Ss. 465 and 471 of IPC to be attracted, mens rea is essential, which is absent as far as the petitioner's case is concerned. Support for this proposition is sought to be drawn from the decision of the Andhra Pradesh High Court in Raghuram Kamisetty v. Regional Passport Officer, Secunderabad, A.P. and Another [2007 SCC OnLine AP 613]. It is then submitted that the petitioner had stayed in India up to 24/12/2024 without noticing that the validity period of his visa had expired. The petitioner cannot be prosecuted for the offence under Sec. 14A of the Foreigners Act for overstaying, as his entry into India was legal. To buttress this argument, reliance is placed on the Apex Court's decision in Akmal Ahmad v State of Delhi [(1999) 3 SCC 337] and that of this Court in Egadwa Mercy Adamba v. State of Kerala [2024 (6) KHC 108]. While concluding her arguments, learned Counsel submitted that the petitioner's family is in the United Kingdom and his business is suffering huge setbacks due to the petitioner's absence. Therefore, on sympathetic considerations also, the petitioner should be permitted to travel back to the United Kingdom.