STATE OF MAHARASHTRA Vs. IBRAHIM ADAM

JUDGEMENT

(1.) Does the over-stay in India of the respondent who is a Pakistani national, after the period prescribed in his visa has expired, amount to a contravention punishable under Rule 6(a) of the Indian Passport Rules 1950. This is the short point of law which arises in this appeal.

(2.) The facts giving rise to this point are not in dispute. The respondent is a Pakistani national and he holds a Pakistani passport No. 124981 issued at Karachi on 7-7-1953. He entered India on 24-2-1954 with Category "C" visa No. 8809 dated 17-2-54 issued at the Indian High Commission at Karachi. This visa was valid only during the period ending 16-5-1954. Having entered India with this visa, the respondent obtained permission to continue his stay in India up to 6-6-1954 from the Deputy Commissioner of Police, Special Branch, C. I. D., Bombay. Two further extensions were also granted to him at his request by the Passport Officer to the Government of Bombay. The last extension granted to the respondent expired on 6-7-1954. He reported his departure at Jalalpore on 2-7-1954, but this was a hoax. In fact the respondent had not left India on or before 6-7-1954 and over-stayed here. He was found in a village Abrama within the limits of Jalalpore Police Station on 8-12-1954. Immediately thereafter he was arrested and charge-sheeted for breach of Rule 3 of the Indian Passport Rules punishable under Rule 6(a) of the said Rules. The Respondent admitted these facts, but he contended that his over-stay in India beyond the period permitted by the passport authorities did not amount to a contravention of Rule 3 and was not punishable under Rule 6(a) of the Indian Passport Rules. The learned trial Magistrate has upheld this plea, with the result that the respondent has been acquitted of the offence charged. In the present appeal, it has been urged before us on behalf of the State that the view taken by the learned trial Magistrate is based on a misconstruction of the material passport rules. That is how the only point which falls to be considered in the present appeal is one of construing the material passport rules.

(3.) The Indian Passport Act, 1020, has been enacted because Legislature thought it expedient to take power to require passport of persons entering India. Under Subsection (1) Section 3 of this Act, the Central Government is authorised to make rules requiring that persons entering India shall be in possession of passports, and for all matters ancillary or incidental to that purpose. Sub-section (2) of Section 3 enumerates the topics on which rules may be framed by the Central Government without prejudice to the generality of the power already conferred under Subsection (1). It is under this power of making rules that the Indian Passport Rules 1950, have been made by the Government of India. Rule 3 provides that, save as provided in Rule 4, no person, proceeding from any place outside India, shall enter, or attempt to enter, India by water, land or air unless he is in possession of a valid passport conforming to the conditions prescribed in Rule 5. It is common ground that the respondent's case does not fall under Rule 4, so that he is governed by Rule 3 and he could not enter or attempt to enter India as laid down by this rule without a valid passport. There is no dispute on this point. Rule 6 is a penal rule and Clause (a) of Rule 6 provides that any person who contravenes or abets the contravention of the provisions of Rule 3 shall be punishable with imprisonment for a term which may extend to three months or with fine or with both. The respondent contends that what is made penal under Rule 6 (a) is an illegal entry or an attempt to make an illegal entry. Rule 3 refers to the entry or an attempt to make an entry without a passport and the contravention of this rule must necessarily be confined to cases where a foreigner has either entered into or has attempted to enter India illegally without a valid passport. It is conceded that, even though a foreigner may have entered India with a valid passport, it would be obligatory for him to leave India as soon as the period prescribed on the visa has expired, and in that sense his over-stay may not be legal. But whether such over-stay is legal or not, it can- not be penalised unless it falls within the purview of Rule 6(a). Now, the Act itself defines entry as meaning entry by water, land or air, so that there is no difficulty whatever in construing Rule 3. This rule refers to the entry or an attempt to make an entry and requires that no foreigner should enter or attempt to enter India without a valid passport. A foreigner's residence in India would no doubt be governed by the limitations prescribed in the visa; but his residence or its continuance after he has once entered India cannot, we think, be brought within the mischief of Rule 3. The question as to whether his continued residence in India is legal or not should not be confused with the main question which arises under Rule 6(a). The contravention of Rule 3 cannot be said to have been committed by a foreigner because he has over-stayed in India though he entered India with a valid passport. Rule 6(a) is a penal provision and it is well settled that a penal provision must be strictly construed. Besides, it seems to us difficult to construe the word "enter" or the words "Attempt to enter" as referring to residence either within the period permitted by the visa or beyond it. Giving the words used in Rule 3 their plain grammatical construction, it is, we think, impossible to hold that continued residence of the foreigner, however wrongful it may be, can attract the provisions of Rule 3 and could be made the basis of his conviction under Rule 6(a).