In Re. K. Sambasivame

Anantanarayanan, J.—The appellant (Sambassivan) has instituted this appeal as a Pourvoir on Cessation against the judgment of the Tribunal Superieurd Appel, Pondicheny, sentencing him to imprisonment for 15 days and costs under S. 3, 3 (2) (a) and 3 (3) of the Indian Passport Act (XXXIV of 1920) under the following circumstances. This appellant was arrested for the commission of a Flagrant delit, namely, stay at Karaikkal, the appellant being citizen of Ceylon, without a valid passport, and prosecuted before the Court of first instance. That Court sentenced him to imprisonment for 15 days, fine of 25 francs and liability to pay costs, under the same Ss. 3 (2) and 3 (3) of the Indian Passport Act, 1920.

When the matter went up in appeal before the Tribunal Superieurd Appel, Pondicherry, the Court of Appeal annulled the procedure of flagrant deltt adopted by the prosecution in the case, on grounds, stated, under Art. 41 of the French Code of Criminal Procedure. We are not now concerned with the propriety of the annulment, and we may take it that the Superior Court found that the proceedings were not valid, and that the accused had to be tried again binder Art. 215 of the French Criminal Procedure Code. The accused was so tried, and sentenced as stated by us above.

As the learned Counsel for the appellant contends, and, as the learned Public Prosecutor for Pondicherry does not dispute, the conviction appears to be unsustainable in law for, we find upon the facts that the accused entered Karaikkal in 1952, at a time when the Indian Passport Act, XXXIV of 1920, had not been extended to that area, and was not in force there. The de facto transfer itself was on 1st November, 1954, and on 30th November, 1954, the Gazette of India promulgated the Indian Passport Act, 1920, as applicable to the erstwhile French Settlements. Hence, upon the established facts, what the appellant was guilty of was an overstayal without renewal of his emergency certificate or obtaining a fresh emergency certificate, as admitted by him. The appellant was not guilty of entry into India without a valid passport, which is an offence specifically punishable under S. 3 (2) and 3 (3) of the Indian Passport Act.

This word "entry" occurring in S. 3 was interpreted by a Bench of the Allahabad High Court in Chhanga Khan Vs. The State, and the learned Judges observed that the ordinary interpretation should be given, and the natural meaning adopted, unless the legislature had given expression to some peculiar significance or meaning as attached to the word in question. Mulla, J. delivering the judgment of the Bench observed:

In my opinion, the word ''entry'' can by no stretch of imagination mean continuance of stay.

In The The State Vs. Ibrahim Adam, a Bench of that Court has also clearly enunciated the principle that overstayal in India by a foreigner, after the expiry of the period prescribed in his Visa, did not involve an illegal entry, or entry without a valid passport, which is punishable under R. 3 of the Indian Passport Rules 1950. With respect, we associate ourselves with the dicta in these decisions upon the significance of the word "entry" as occurring in the Statute, and we are clearly of the view that it cannot possibly refer to overstayal by a person who might have originally entered either lawfully, or at a time when this law was not in force in the concerned area, For this reason, whatever other offence the appellant might be guilty of, if any, he is not liable to be convicted under the provisions of the Indian Passport Act, and since this is an infirmity upon the question of law which proceeds to the root of the conviction, the appeal is allowed, and the conviction and sentence are set aside.