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Sonam Tshering Vs. State of Sikkim - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantSonam Tshering
RespondentState of Sikkim
Excerpt:
- - 1. the accused-appellant has been convicted on his own plea of guilty to a charge under section 5 of the registration of foreigners act, 1939, on the allegation that he entered indian territory from tibet and failed to report his presence to the prescribed authority and he has been sentenced to undergo rigorous imprisonment for a period of one year. 4. it should, however, be noted that though under the provisions of the registration of foreigners act, 1939, the offence is punishable under section 5 of the act, yet the offence consists solely of contravention of or non-compliance with the provisions of the rules made thereunder, being the registration of foreigners rules, 1939. the indian passport (entry into india) act, 1920 also does not in the body of the act create any offence..... a.m. bhattacharjee, j.1. the accused-appellant has been convicted on his own plea of guilty to a charge under section 5 of the registration of foreigners act, 1939, on the allegation that he entered indian territory from tibet and failed to report his presence to the prescribed authority and he has been sentenced to undergo rigorous imprisonment for a period of one year. he has also been convicted on a similar plea to another charge under the provisions of the indian passport rules, 1950, framed under section 3 of the indian passport (entry into india) act, 1920, on the allegation that he entered indian territory from tibet without a passport and he has been sentenced to undergo rigorous imprisonment for three months and both the sentences are to run concurrently.2. the registration of.....
Judgment:

A.M. Bhattacharjee, J.

1. The accused-appellant has been convicted on his own plea of guilty to a charge under Section 5 of the Registration of Foreigners Act, 1939, on the allegation that he entered Indian territory from Tibet and failed to report his presence to the prescribed authority and he has been sentenced to undergo rigorous imprisonment for a period of one year. He has also been convicted on a similar plea to another charge under the provisions of the Indian Passport Rules, 1950, framed under Section 3 of the Indian Passport (Entry into India) Act, 1920, on the allegation that he entered Indian territory from Tibet without a passport and he has been sentenced to undergo rigorous imprisonment for three months and both the sentences are to run concurrently.

2. The Registration of Foreigners Act, 1939, has been extended to Sikkim under the provisions of Clause (n) of Article 371 F of the Constitution of India on the 16th of May, 1975, and has been enforced on the 1st Feb., 1976. But the corresponding Sikkim Law, being the Registration of Foreigners Rules of 1960, has not been at any time expressly repealed either before or simultaneously with or after the extension and enforcement of the Central Registration of Foreigners Act, 1939. The question as to whether the extension and enforcement of any enactment under Article 371F (n) of the Constitution, without repealing the corresponding Sikkim Law on the subject would be valid and effective, has been considered by me in details in Raj Kumar Raj v. State (Criminal Appeal No. 2 of 1978, decided on 15-9-1978) and I have held in that case that the extension and enforcement of the Indian Arms Act, 1959 to and in Sikkim under the provisions of Article 371F(n) of the Constitution without expressly repealing the corresponding Sikkim Law, being the Sikkim Arms Rules, 1952, has been valid and effective and that on and as a result of such extension and enforcement, the corresponding Sikkim Law stood overborne, overthrown and impliedly repealed. In this case also I would, therefore, hold that the Central Registration of Foreigners Act, 1939 has been validly extended to and enforced in Sikkim even though the corresponding Sikkim Law, being the Siikkim Registration of Foreigners Rules of 1960, has not been repealed at any time before such extension and enforcement and that on and as a result of such extension and enforcement, the Sikkim Registration of Foreigners Rules of 1960 have stood, overborne, overthrown and impliedly repealed.

3. This question has not arisen in respect of extension and enforcement of the Indian Passport (Entry into India) Act, 1920 to and in Sikkim, which has been extended on 16th May, 1975 and enforced on 20th Sept. 1976, as there does not appear to be any corresponding law in Sikkim on this subject relating to entry into Sikkim without passport or other similar document. But even if there was any such law, such law would also be deemed to have been overborne, overthrown and impliedly repealed by the extension and enforcement of the Indian Passport (Entry into India) Act, 1920 and the said Act is to be deemed to be validly extended and enforced without express repealment of the corresponding Sikkim Law.

4. It should, however, be noted that though under the provisions of the Registration of Foreigners Act, 1939, the offence is punishable under Section 5 of the Act, yet the offence consists solely of contravention of or non-compliance with the provisions of the rules made thereunder, being the Registration of Foreigners Rules, 1939. The Indian Passport (Entry into India) Act, 1920 also does not in the body of the Act create any offence or even provide for its punishment but it is the rules made thereunder, being the Indian Passport Rules, 1950, which create the offence as well as provide for the punishment. The maintainability of any criminal prosecution under the Registration of Foreigners Act, 1939 or under the Indian Passport (Entry into India) Act, 1920 will, therefore, depend entirely on the respective Rules made under the two enactments. The important question that has, therefore, arisen in this case is whether as a result of extension and enforcement of the Registration of Foreigners Act, 1939, and the Indian Passport (Entry into India) Act, 1920 to and in Sikkim, the Rules made under the two enactments have automatically started to operate in Sikkim? The provisions of Clause (n) of Article 371F of the Constitution, whereunder these two Acts have been extended to Sikkim read as hereunder:

(n) The President may, by public notification, extend with such restrictions or modifications as he thinks fit to the State of Sikkim any enactment which is in force in a State in India at the date of the notification.

5. The question is whether extension and enforcement of an 'enactment' would automatically result in extension and enforcement of the Rules made thereunder? It is not disputed that if the Rules made under the aforesaid two enactments do not stand extended and enforced by the extension and enforcement of the enactments concerned, the prosecution must fail.

6. It is clear from the provisions of Article 371F(n) , quoted above, that the said provisions only provide for the extension of an enactment and do not ex facie provide for extension of Rules made under an 'enactment' and ex facie, therefore, Rules under an enactment cannot and do not stand extended under the provisions of Article 371F(n) unless an 'enactment' invariably carries with it the Rules made thereunder as a part thereof.

7. There can be no doubt that if an enactment operating in other parts in India is extended to Sikkim under Article 371F(n) of the Constitution and the Rules are thereafter framed under such enactment, the said Rules would obviously operate in Sikkim as the Rules in that case, are made after the enactment has already started to operate in Sikkim. But in this case both the Registration of Foreigners Rules, 1939, and the Indian Passport Rules, 1950 have been made long before the relevant enactments, being the Registration of Foreigners Act, 1939 and the Indian Passport (Entry into India) Act, 1920, have been extended to Sikkim. Such Rules, therefore, cannot start to operate in Sikkim simply because the enactments whereunder they have been made have been extended to Sikkim unless, as already stated, these Rules are to be regarded as inseparable parts of the enactments concerned, starting automatically to operate along with the enactments. To put it in other words, the question which will have to be considered in this case is whether the expression 'enactment' in Article 371F(n) as quoted hereinabove also includes the Rules already made in exercise of the powers conferred by the enactments?

8. The provisions of the General Clauses Act, 1897 have been made applicable for the interpretation of the provisions of the Constitution by Article 367(1) of the Constitution. Section 3(51) of the General Clauses Act, defines that 'rule shall mean a rule made in exercise of a power conferred by an enactment' and this definition may be regarded to indicate that Rules, though they trace their origin from the powers conferred by the enactments, are something different from the enactments concerned and that 'enactment' and the Rules made thereunder are different entities. The distinction between enactments made by the Legislature and the Rules made by the Rule-making authorities vested with powers to make rules has been pointed out by the Supreme Court in Indramani v. W.R. Natu : [1963]1SCR721 where it has been observed (at pp. 281-282) that the expression 'by an Act' would mean 'by a provision directly enacted in the statute in question which is gatherable from its express language or by necessary implication therefrom' while the expression 'under the Act' would signify 'what is not directly to be found in the statute itself but is conferred or imposed by virtue of powers enabling this to be done.'

9. The expression 'enactment' has been defined in Section 3(19) of the General Clauses Act as to 'include a Regulation (as hereinafter defined) and any Regulation of Bengal, Madras or Bombay Code' and to include 'any provision contained in any Act or in any such Regulation as aforesaid.' This definition also may be regarded to suggest that while direct legislations like Regulations have been included within the ambit of expression 'enactment', subordinate or delegated legislations like Rules have not been included therein and the definitions of the expression 'enactment', 'regulation' and 'rule' in the General Clauses Act may be regarded to indicate that the expression 'enactment' would not include Rules made under the enactment or the statutory rules. This view would find support from the Division Bench decision of the Calcutta High Court in Gobardhan Das v. Doolie Chand AIR 1921 Cal 708 where, construing the word 'enactment' in Section 5(2) of the Cr. P.C. 1898, it was held by Sanderson, C.J. (at p. 711), after referring to the definition of the said expression in the General Clauses Act, 1897, that the expression would not 'ordinarily mean a statutory Rule' and that 'the Rule is not a part of the Act'. Richardson, J., in his concurring judgment also held (at p. 718) that the expression 'enactment' does not include a 'statutory Rule'. In a later decision, however of the same High Court, a learned single Judge has held (D.K. Sen Gupta v. Ananta Lal Das : AIR1953Cal414 . while construing the very same expression 'enactment' in Section 5(2) of the Cr. P.C. that Rules made under an enactment, 'being statutory rules, are part of the enactment itself'. It may, however, be noted that neither the earlier Division Bench decision in Gobardhan Das v. Doolie Chand was referred to in that decision nor any reasoning was given for the aforesaid conclusion.

10. Reliance has been placed on a Division Bench decision of the Patna High Court in Mahabir Sahu v. Emperor. AIR 1947 Pat 16 and on a Single Judge decision of the Orissa High Court is Tintus Kharia v. State : AIR1952Ori258 for the contention that Rules made under an enactment stand extended along with the extension of the enactment. In the Patna Case, the Defence of India Act, 1939, was extended to Chota Nagpur and other partially excluded areas by a notification under Section 92(1) of the Government of India Act, 1935, on 15th October 1939. The Food-Grains Control Order, 1942 was an order made in exercise of the powers conferred by Rule 81(2) of the Defence of India Rules, 1939. It was held (at p. 17) that 'once an Act has been extended to an excluded area or partially excluded area, it necessarily follows that any Rule or order made in exercise of powers conferred by the Act also comes into operation in such area'. It is not difficult to understand that if the Defence of India Act, 1939 and the Defence of India Rules, 1939 were duly extended to the area in question in 1939, any order made in exercise of the power conferred by the Act and the Rules, after those were so extended, like the Food-Grains Control Order of 1942, would obviously apply to such area. It is, however, not clear from the decision as to whether after the Defence of India Act, 1939 was extended to the area in question, the Rules made thereunder, being the Defence of India Rules, 1939, were also taken as automatically extended and as effectively operative without any specific extension or the like. The Orissa decision simply relied on the Patna decision to hold that the rules already made under the Forest Act, 1927, stood extended to a new area along with the extension of the Act to that area, without noticing that in the Patna decision it was not clearly decided that even Rules made under an enactment prior to its extension to a new area would also automatically start to operate in that area with the extension of the enactment.

11. But Section 3 of the Indian Passport (Entry into India) Act, 1920, which confers powers on the Central Government to make Rules, further provides in Sub-section (4) that 'all Rules made under this section shall be published in the Official Gazette and shall thereupon have effect as if enacted in the Act.' If the enactment, which confers powers on the delegate to make Rules, itself expressly provides that the Rules so made shall have effect 'as if enacted in the Act', then the Rules, when validly made, shall be deemed to be incorporated in the enactment itself. It is true, as pointed out by the Supreme Court in State of Kerala v. K.M. Charia Abdulla and Co. : [1965]1SCR601 that by such provisions no additional 'sanctity attaches to the Rules' and that even in such a case the power to make Rules is still to 'be exercised within the strict limits of the authority conferred' and that 'validity of a Rule, whether it is declared to have effect as if enacted in the Act or otherwise, is always open to challenge on the ground that it is unauthorised.'

12. The question was considered by a Full Bench of the Patna High Court in State v. Kunja Behari Chandra : AIR1954Pat371 where the provisions of Section 31(4) of the Mines Act, 1923(now repealed), providing that Rules made thereunder would on publication in the official Gazette have effect 'as if enacted in the Act', fell for consideration and it was held by the Majority (at p. 379) that the expression 'any Act, Ordinance or Regulation' in Section 432 of the Cr. P.C. would include 'such Rules as become part of the Act on publication'. Das, J. (as his Lordship then was) in delivering the Judgment of the Majority, however, pointed out (at p. 379) that the Rules so made do not thereby become sacrosanct and the validity of the Rules has still to be considered on the touchstone of their being within the authority conferred and their consistency with the other provisions of the Act. But when the Rules are so made validly and within the authority conferred by the Act, they become part of the Act because of the express legislative declaration to that effect and shall be regarded as if incorporated in the Act by way of legislation by incorporation. In other words, the Rules, when made, will have to be notionally regarded to have been reproduced and incorporated in the Act whereunder they are made.

13. The same view has been taken by the former Pepsu High Court in State v. Jagat Singh AIR 1956 Pepsu 73 where it has been held that Rules framed under an enactment may have the force of law and their contraventions may be liable to penalty but thereby the Rules do not become part of the enactment to justify a reference in respect of the validity of such Rules under Section 432. Cr. P.C. which authorises reference relating to the question of validity of only an Act, Ordinance or Regulation, unless there is an express provision in the enactment declaring that Rules made thereunder shall have effect as if enacted in the Act. I am, therefore, of opinion that because of the express provisions in Section 3(4) of the Indian Passport (Entry into India) Act, 1920, providing that all Rules made thereunder 'Shall be published in the Official Gazette and shall thereupon have effect as if enacted in the Act', the Indian Passport Rules, 1950, framed under Section 3 of the Indian Passport (Entry into India) Act, 1920 shall be deemed as if enacted in the said Act and have stood extended along with the extension of the Indian Passport (Entry into India) Act, 1920.

14. But the Registration of Foreigners Act, 1939 does not contain any such provisions providing that the Rules made thereunder shall have effect as if enacted in the Act, and, therefore, the Registration of Foreigners Rules, 1939 cannot be regarded as a part of the Registration of Foreigners Act, 1939 on such ground as stated above, I would have held, agreeing with the Division Bench decision of the Calcutta High Court in Gobardhan Das v. Doolie Chand AIR 1921 Cal 708 and the decision of the Pepsu High Court in State v. Jagat Singh AIR 1956 Pepsu 73. both noted and discussed hereinabove, that the Registration of Foreigners Rules, 1939 do not form part of the Registration of Foreigners Act, 1939 and as such do not stand extended along with the extension of the Registration of Foreigners Act, 1939, to Sikkim. But I have corrected myself as I have found that the view of our Supreme Court is different. In T. B. Ibrahim v. RTA Tanjore : [1953]4SCR290 . the Supreme Court has held (at p. 82) that 'by-laws and rules made under a Rule making power conferred by a statute do not stand on the same footing, as such rules are part and parcel of the statute itself'. (Underlining mine). In State of Uttar Pradesh v. Babu Ram : 1961CriLJ773 the Supreme Court has quoted with approval (at 761) a passage from Maxwell as hereunder:

Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act and are to be judicially noticed for all purposes of construction or obligation, 'see Maxwell On the Interpretation of Statutes', 10th Edn. pp. 50-51' and has observed (at 763) that 'the fundamental principle of construction' is 'that Rules made under a statute must be treated as exactly as if they were in the Act and are of the same effect as if contained in the Act.

(Emphasis Supplied).

15. I may venture to point out with the greatest respect that the relevant passage from Maxwell has not probably been correctly quoted, as in the 10th Edn. of Maxwell's 'On the Interpretation of Statutes', at pp. 50-51, the relevant passage appears to be as hereunder:

Instruments made under an Act which prescribes that they shall be laid before Parliament for a prescribed number of days, during which period they may be annulled by a resolution of either House, but that if not so annulled they are to be of the same effect as if contained in the Act, and are to be judicially noticed, must be treated for all purposes of construction or obligation or otherwise, exactly as if they were in the Act.

16. Be that as it may, if a passage has been differently quoted, but the passage so quoted has been approved by the Supreme Court, it is the passage as and so quoted and approved by the Supreme Court that will govern us as the binding law and not the passage as it stands.

17. Before parting with this point I would like to point out that in the recent Supreme Court case of Prag Ice Oil Mills v. Union of India : 1978CriLJ1281a , the question that arose was whether the Mustard Oil (Price Control) Order, 1977, being an Order issued under the provisions of Section 3 of the Essential Commodities Act, 1955, itself enjoys the constitutional immunity conferred on the said Act by Article 31B as a result of its inclusion in the Ninth Schedule of the Constitution. The Constitutional Immunity conferred by the said Article 31B relates to the 'Acts and Regulations specified in the Ninth Schedule' and to 'the provisions thereof' and it has been observed by Chandrachud, C.J., speaking for the majority (at p. 1295 of the Cr. L. J.) that the protection extended under Article 31B to the Essential Commodities Act, 1955 will not extend to the price control Order issued thereunder. I have, however, noted that the said observation was made in the particular context of Article 31B of the Constitution which seeks to exclude enactment from the judicial review on the ground of constitutionality and that the question whether Rules made under an enactment are to be deemed as part of the enactment for the purpose of construction and obligation did not arise in that case. But that question did arise and was determined by the Supreme Court in T. B. Ibrahim's case and in Babu Ram's case noted above, and I, therefore, feel that I will have to govern myself by the observations made in these two cases. As already noted, the observations in T.B. Ibrahim's case and Babu Ram's case are to the effect that Rules made under a statute 'are part and parcel of the statute itself' and 'must be treated as exactly as if they were in the Act and are of the same effect as if contained in the Act', and that being so, with the extension of an enactment, the Rules made thereunder also - automatically stand extended as part and parcel of the enactment and as if they were contained in the enactment.

18. Following, as I must, the observations of the Supreme Court in T. B. Ibrahim's case and Babu Ram's case noted hereinabove, I will therefore, hold that the Registration of Foreigners Rules, 1939 made under Section 3 of the Registration of Foreigners Act, 1939, are part and parcel' of the Registration of Foreigners Act, 1939, and 'must be treated as exactly as if they were in the Act' and to be 'of the same effect as if contained in the Act'. I have already held that because of the provisions of Section 3(4) in the Indian Passsport (Entry into India) Act, 1920, to the effect that the Rules made thereunder 'shall thereupon have effect as if enacted in the Act', the Rules validly made thereunder shall become a part of the statute and shall stand extended along with the extension of the statute. But in view of the observations of the Supreme Court noted above, I will have to hold that existence or absence of such an express provision will not make any difference in this respect and that all Rules made under an enactment, whether or not declared to have effect as if enacted therein, shall be deemed to be a part of the enactment and as if contained in the enactment. I, therefore, hold that both the Indian Passport Rules 1950, which are declared to have effect as if enacted in the Act, and the Registration of Foreigners Rules, 1939 which are not so declared, shall be deemed to be 'part and parcel' of the respective enactments whereunder they are made and are to 'be treated as exactly as if they were in the Act' and to have started to operate in Sikkim from the time when the Indian Passport (Entry into India) Act, 1920 and the Registration of Foreigners Act, 1939 have started to operate.

19. I am, however, of opinion that even if the Registration of Foreigners Rules 1939 are validly operative in Sikkim, the facts alleged by the prosecution would not amount to an offence and it has not been disputed that if the facts alleged by the prosecution or admitted by the accused do not amount to the offence charged or to any offence, the plea of guilty is no bar for an appeal on merits and does not stand in the way of the accused being acquitted. No authority is necessary for this well settled proposition but yet reference may be made to the decisions of this Court in Puspa Kumar Rai v. State 1978 Cr LJ 1379 and in Raj Kumar Rai v. State of Sikkim Criminal Appeal No. 2 of 1978, decided on 15th September 1978 already referred to.

20. The charge against the accused under Section 5 of the Registration of Foreigners Act is that he, being a foreigner from Tibet, China entered the Indian Territory at Mogathang on or about 9th August 1977 and failed to report his presence to the prescribed authority. Under Rule 4-A of the Registration of Foreigners Rules, 1939, every foreigner who enters India shall, on being required so to do by the Registration Officer of the place of arrival, furnish to him a true statement of the particulars set out in form 'D' and under Rule 5 thereof, every foreigner entering India shall present to the appropriate Registration Officer a report of his arrival in India. Rule 3 provides that the Central Government may appoint Registration Officer for the purpose of the Registration of Foreigners Rules for such area as it thinks fit and such Registration Officer may, with the approval of the Central Government, authorise in writing any other authority to perform any or all of his functions and under Rule 2(g), Registration Officer for the purpose of these Rules, means such a Registration Officer appointed under Rule 3. There is nothing on the record showing or even alleging that any such Registration Officer has been appointed by the Central Government in respect of any area in Sikkim and the learned Advocate General after obtaining instructions from the authorities has conceded that no Registration Officer has been appointed by the Central Government for purpose of the Registration of Foreigners Rules, 1939 in respect of any area in Sikkim. If there is no Registration Officer to whom the necessary report is to be made or presented, the failure to make or present such report cannot amount to a contravention of or non-compliance with the provisions of Rule 4-A or Rule 5 to attract the penal provision of Section 5 of the Registration of Foreigners Act, 1939, which provides for punishment for any contravention of or an attempt to contravene or any non-compliance with any of the provisions of the Registration of Foreigners Rules, 1939. The accused, who is a foreigner, was not or is not expected to know whether the Central Government has or has not appointed any Registration Officer and must have made his plea under a bona fide, though utterly erroneous, impression that there was some duly appointed authority to whom he was to report and that he was, therefore, guilty for his failure to report. A plea on such a misconception of fact or law or as to one's liability under the law is really not a plea to attract the provisions of Section 412, Cr. P.C. 1898 and to bar an appeal on merits. If there was no Registration Officer appointed under Rule 3 the accused was under no liability to make or present any report under Rule 4-A or Rule 5 and, therefore, his admission of guilt for not doing something which he was under no liability to do must be treated as no admission and shall not prevent his acquittal on merits. I am, therefore, of opinion that the charge against the accused under Section 5 of Registration of Foreigners Act must fail, his alleged plea of guilty notwithstanding. We have pointed out in Puspa Kumar Raj v. State 1978 Cr LJ 1379 at p. 1384 that a conviction on a plea of guilty is an exception to the general rule that prosecution must prove the case by legal, reliable and unimpeachable evidence, because the plea of guilty is not evidence in the ordinary sense of the term as defined in Section 3 of the Evidence Act. We have pointed out further that such a course being extraordinary and an exception to the ordinary course of criminal trial or ordinary notion of criminal jurisprudence the caution to be exercised by the Courts before resorting to such extraordinary course should be extraordinary. The learned Sessions Judge in this case, before proceeding to convict the accused on his plea of guilty for his failure to make or present any report to Registration Officer, ought to have taken care to ascertain as to whether there was at the material time any Registration Officer appointed for the purpose so that the alleged plea of the accused could really amount to a plea of guilty. In fact, if there was no Registration Officer as aforesaid, no charge under Section 5 of the Registration of Foreigners Act, 1939, could be framed on the materials on record, and there can be no doubt that if a charge could not legally be framed on the materials on record, the plea of guilty to such a charge was no plea in law and was not to be acted upon and such a plea would not attract the bar under Section 412, Cr. P.C. and would not prevent the acquittal of the accused on merits. Reference in this connection may again be made to the decision of this Court in Puspa Kumar Rai v. State of Sikkim 1978 Cr LJ 1379.

21. This brings me to the consideration of the other charge under Rule 6 of the Indian Passport Rules, 1950, which is that the accused, on or about 9th August, 1977, at Mogolhang entered Indian territory from Tibet without any passport. The accused has pleaded guilty to this charge by admitting his entry in the manner alleged and without any passport. I have already held that the Indian Passport Rules, 1950, shall be deemed to be operative in Sikkim from the date when the Indian Passport (Entry into India) Act, 1920 has been enforced i.e. from 1st February 1976. Rule 3 of the Indian Passport Rules, 1950 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. Rule 4 provides for the classes of persons who are exempted from the operation of Rule 3 and it has not been disputed by the learned Counsel for the accused that the accused does not come within the exemptions. Neither there is anything on the record to show, nor it has been suggested by the learned Counsel for the accused that the plea of guilty of the accused to this charge suffers from any infirmity as it does in respect of the other charge. I find nothing illegal or improper either in respect of the conviction or in respect of the sentence and the appeal, in my view therefore, fails to that extent.

22. The learned Sessions Judge after imposing the sentences has further ordered that 'after the expiry of the sentences, the accused shall be deported from India under the rules'. The learned Sessions Judge failed to note that 'under the rules' there is no provision for removal or deportation. The Sessions Judge should have noted that such a power of removal is vested in the Central Government under Section 5 of the Indian Passport (Entry into India) Act, 1920, which provides as hereunder:

5. The Central Government may, by general or special order, direct the removal of any person from India who, in contravention of any rule made under Section 3 prohibiting entry into India without passport, has entered therein, and thereupon any officer of the Government shall have all reasonable powers necessary to enforce such direction.

23. I do not understand how the learned Sessions Judge could think for a moment that he could direct removal in exercise of a power which vests in the Central Government and not in Courts and a power which the Central Government may or may not exercise. The order of removal or deportation passed by the learned Sessions Judge is, therefore, patently unauthorised and absolutely without jurisdiction and must be set aside.

24. The appeal, therefore, succeeds in respect of the conviction and sentence under Section 5 of the Registration of Foreigners Act, 1939, and the conviction and sentence thereunder are set aside. The appeal, however, fails in respect of the conviction and sentence under Rule 6 of the Indian Passport Rules, and conviction and sentence thereunder are confirmed. But the order of removal or deportation is, however, set aside for the reasons stated. It is however made clear that this will not prevent the Central Government from taking such action as it may deem fit under Section 5 of the Indian Passport (Entry into India) Act, 1920 or will not prevent any other authority from taking any action under any other law, relating to the removal of the accused from India.


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