T.N.R. Tirumalpad, J.C.
1. The petitioner was convicted under Rule 6(a) of the Indian Passport Rules, 1950, read with Rule 3 and with Section 3 of the Indian Passport Act, 1920 and sentenced to pay a fine of Rs. 55/- by the S. D. M., Sadar. His appeal to the Sessipns Judge was dismissed. Hence, he has come up in revision,
2. The case against the petitioner was that he was a Pakistan national and that he entered India without any valid travel document between 16-9-59 and 20-11-59. He was arrested on 20-11-59 at Joynagar in Agartala by the Police. The defence of the petitioner was that he is an Indian national and that he did not enter India from Pakistan between 16-9-59 and 20-11-59, but that he has always been a resident of Joynagar in Agartala.
3. Both the lower Courts were satisfied that the petitioner was a Pakistan national having his residence ' at New Chaudhury Para in Comilla in East Pakistan, that he had entered India through the Akhaura Check Post on 11-9-59 with a valid visa and departed again to Pakistan on 16-9-59, that after 16-9-59 he had again re-entered India without a valid travel document and that he was remaining: in India on 20-11-59 when he was arrested. Hence, they held that the petitioner entered India without a valid travel document after 16-9-59 and hence he has committed an offence under Rule 6(a) of the Indian Passport Rules, for violation of Rule 3 of the said Rules read with Section 3 of the Indian Passport Act.
4. In coming to that conclusion the lower Courts relied on Exts. P/1 and P/2 and on the evidence of P. Ws. 1, 2, 4 and 6. Ext. P/l showed that one Gauranga Chandra Deb, son of Raj Kumar Deb of New Choudhurv Para in East Pakistan born on 25-5-1933 at Kaimpur and occupation Kabiraj had entered India on 11-9-59 on a Pakistan Passport No. 371610 dated 12-6-58 and visa No. 516259 dated 25-11-58, through the Akhaura Check Post. It also contained an entry for the exit of this Gauranga Chandra Deb on 16-9-59. Ext. P/2 is an application for visa, dated 23-6-58, by this Gauranga Chandra Deb, son of Raj Kumar Deb of New Choudhury Para in District Tippeira, date of birth shown as 25-5-33, place of birth as Kaimpur and occupation Kabiraj. The Passport number is mentioned as 371610. Thus there can be no doubt that the entry in Ext. P/1 relating to Gauranga Chandra Deb is of the same person who applied for the visa by Ext. P/2. On this application, he was given a visa valid from 30-6-58 to 11-9-58. The photo of Gauranga Chandra Deb is affixed to the visa Ext. P/2. The Magistrate; after seeing the petitioner was satisfied that the photo in Ext. P/2 was that of the petitioner. I may also say that the petitioner was present in Court at (he time of the arguments in this revision petition and I also found that the
5. The learned District Judge has committed a mistake in his judgment in stating that the petitioner entered India on 11-9-59 with the visa. Ext. P/2. I find that none of the witnesses mada any such statement. The period under Ext. P/2. expired on 11-9-1958 and hence the petitioner cannot have entered with the said visa on 11-9-1959. The particular visa with which he entered on 11-9-1959 has not been produced in this case. We are not for the present concerned with the non-production of the said later visa as Exts. P/1 and P/2: proved beyond doubt that the petitioner is a Pakistan national, that he entered India on 11-9-1959-and that he departed from India on 16-9-1959. Thus, when he was arrested on 20-11-59 at Joynagar, it is clear that he has entered India after 16-9-1959. It is for the petitioner to prove that he entered India after 16-9.-1959 with a valid travel document. But he has not attempted to prove this,. because his whole case is that he is an Indian National and that he has always been in Joynagar and did not enter India from outside. This case of the petitioner was rightly rejected by the lower Courts as it was clearly proved that he was at Pakistan national and that he had left India on 16-9-59 and so when he was arrested on 20-1? 1959, it was clear that the subsequent entry musy have been after 16-9-1959, In such circumstance the case against him was rightly treated as proved by the lower Courts. The learned Sessions Judge has committed another mistake in saying that the petitioner admitted in his examination Under Section 342, Cri. P. C. that he was a resident of Tippers district. On the other hand, T find that he had denied that he belonged to Pakistan. But these 'mistakes made by the Sessions Judge do nor matter, because, as I said, it was proved beyor4 doubt that the petitioner belonged to Pakistan.
6. What was contended in revision was that the question in a case arising Under Section 6(a) of the Indian Passport Rules, 1950 read with Rule 3 of the said Rules and Section 3 of the Indian Passport Act was not whether the accused was a Pakistan national or Indian national, but whether he entered India from outside without a valid travel document, be he an Indian national or Pakistan national that what the prosecution had to prove was that he entered India from outside. It was further argued that the actual entry from outside must be proved by the direct evidence of persons who have seen such entry from outside, that evidence about such entry must be specifically given, that it was not enough if it was shown that the accused was a Pakistan national, that be was--in Pakistan on a particular date and that on a subsequent day he was seen and arrested in India-thereby showing that he must have entered India after the date when he was in Pakistan and before the date he was arrested in India as wks sought to be done in the present case.
7. In this connection, my judgment in Manu Mian v. Union Territory of Tripura Criminal Revn, No. 13 of 1959 : AIR 1964 Tripura 3 was cited in support. I find that the petitioner raised the -same argument before the Sessions Judge and cited the said decision. But the Sessions Judge repelled the argument and said that in the case of a person proved to be a Pakistan national, it was not necessary to prove the actual entry into India by producing witnesses who saw the entry, but that it was enough if it was proved that he was in Pakistan on a particular date and that on a subsequent date he was seen and arrested in India from which the fact that he entered India from outside would stand proved. The Sessions Judge dealt with my decision cited above and held that the said decision did not apply to the present case and that it was not laid down in the said decision that fanless some persons see the accused enter into India or unless he is caught while in the course Of entry or on the date of his entering or unless the particular date of his entry is proved, he can-mot be convicted under Rule 6(a).
8. I have dealt with this question in many decisions in this Court, besides the decision in Criminal Revn. No. 13 of 1959 : AIR 1964 Tripura 3. The other decisions are in Habijuddin v. The State Cri. Ref. No. 9 of 1960-1961 (2) Cri LJ 569 (Tri), Assan Slav. The State, Cri Revn. No. 13 of 1960. AIR 1964 Tripura 5), Criminal Ref. No. 4 of 1962 (Tri) and Criminal Ref. No. 17 of 1960, the last of which is reported in 1962 (1) Cri LJ 673 (Tri). In the said decision, this Court, has no doubt held that the Indian Passport Act and Rules make it an offence to enter or attempt to enter India from outside without a valid travel document, whether the accused was an Indian national or Foreign, national, that the gravamen of the charge is the entry into India from outside and that the fact -of this entry has got to be proved. I have nowhere stated in any of the decisions that unless the fact of entry was proved by the evidence of fwrsons who actually saw the entry, it cannot be said that the entry has been proved. The fact of the entry can be proved like any other fact. Under Section 3 of Indian Evidence Act, a fact is said: to be proved when, after considering the matter 'before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The fact of entry can certainly be proved by circumstantial evidence. It is not necessary that the fact of entry should be proved solely by direct evidence of persons who had actually seen the entry. As pointed out by the Sessions Judge, it is not possible with such a vast border always to prove by direct evidence that a person has entered India from outside and the fact will have to be inferred from circumstantial evidence regard-tap the entry.
9. It is true that the question in a case under Rules 6(a) of the Indian Passport Rules, is not the nationality of the accused, but the fact of entry from outside. But to prove by circumstantial evidence the fact- of such entry, evidence can he let in to show that the accused was a foreign national, that he was in a foreign country on a particular date and that subsequent to that date he was detected in this country, in order to prove the fact of the entry from outside. Thus, it cannot be said that the evidence of the nationality f' will in all cases be irrelevant. In this particular' case, it was proved beyond doubt by Exts. P /1 and P/2 that the petitioner was a Pakistan national and that he had left India and entered Pakistan on 16-9-1959 and further that he was arrested in, India on 20-11-1959. These circumstances clearly go to prove that the petitioner entered India from outside after 16-9-1959 and before 22-11-1959.
10. But it is not enough Under Section 6(a) of the Indian Passport Rules to prove the entry from outside. It has to be shown that he entered without a valid travel document. The question in this case is whether he had a valid travel document when he entered. The petitioner could have proved that when he entered after 16-9-1959 he had a valid travel document and if he had proved it he would be acquitted. If a Pakistan national entered India from outside with a valid travel document and remained in India after the period permitting his stay in India had expired, he cannot be held liable Under Section 6(a) of the Indian Passport Rules. He will have to be proceeded against under the Foreigners Act or other law relating to foreigners. But the petitioner did not attempt to prove that he entered with a valid) travel document and it is a fact within his knowledge which he has to prove. The petitioner' defence was that he was not a Pakistan national and that he did not enter India from outside at any time. This defence has been shown to be completely false by Exts. P/l and P/2 and by the evidence of P. Ws. 1, 2, 4 and 5. This means in effect that the petitioner had no case that when he entered India after 16-9-1959, he did so with a valid travel document. I would have been happier in this case if the prosecution had produced the travel document with which the petitioner entered on 11-9-1959 and departed on 16-9' 1959. That would have shown whether the petitioner could have entered India validly after 16-9-1959, if the period under the visa had not expired after 16-9-1959. But as it was not the defence of the petitioner that he entered after 16-9-1959 with a valid visa and the whole case of the petitioner was that he was not a Pakistan national and that he never entered India from outside and as the said defence has been shown to be completely false, we have to take it that the petitioner entered into India after 16-9-1059 with out a valid visa and that the case Under Section case of the Indian Passport Rules, has been proved against him. I see no ground to interfere in this revision. It is, therefore, dismissed.