1. This is an appeal against an order of acquittal. The respondent was prosecuted under Section 14 of the Foreigners Act, 1946 for alleged violation of para 3 of the Foreigners (Restricted Areas) Order. 1963 (as amended).
2. The following facts are not disputed by the parties : (1) That the respondent is a British citizen; (2) that he had a valid British passport permitting him to visit India: (3) the passport carried with it a request from the secretary of State, in the name of Her Majesty, to allow the holder of the passport to move freely without let or hindrance and to afford the holder every assistance and protection which he might stand in need: (4) the respondent upon arrival al Kokrajhar in Assam on 6-10-1978 presented himself at the police station with the passport, to disclose his arrival; (5) in turn, the officer-in-charge of the police station endorsed on the passport as 'Reported his arrival at Kokrajhar town on 6-10-78. Sd/- D. N. Pator, Officer-in-Charge, Kokrajhar Police Station'; (6) that the respondent was never informed, apprised or notified at any time by the said police officer or any Law Enforcement Officer or the Superintendent of Police, Goalpara, that any 'permit' was necessary for his stay at Kokrajhar (Assam); (7) he lived openly, never in a secretive, stealthy, furtive, clandestine or hidden manner. In fact, he purchased a parcel of land at Kokrajhar; (8) however, on 23-7-79 an ejahar was lodged by Shri Debendra Chandra Das, Inspector of Police. Kokrajhar that the respondent had entered India on a valid passport but was unauthorisedly staying at Kokrajhar town without 'a restricted area permit' from the authority, purchased land and constructed a house, as such, he was liable to be prosecuted under Section 14 of the Act; (9) notwithstanding anything contained in the Foreigners (Exemption) Order, 1957, no foreigner can enter into or remain in the 'restricted areas' without a permit; (10) that Kokrajhar is within the 'restricted area'' reflected in the First Schedule to the said 'Order'; (11) that the respondent was tried and acquitted by an order dated 1-7-80; (12) that the plea of the accused was that he came to India on a valid passport, checked in the police station whereupon the Officer-in-Charge endorsed his passport, but was never told that he was to obtain any permit for his stay at Kokrajhar. He claimed that he had no knowledge about the 'Order' and/or the necessity of any permit to enter Assam. In short, be pleaded and proved absence of guilty mind.
3. We entirely agree with Mr. Section A. Laskar, learned Public Prosecutor, Assam, that the impugned judgment of acquittal suffers from various infirmities. But the crucial question is whether the order of acquittal requires interference at this end on the acknowledged facts of the case. It is not disputed by the learned Public Prosecutor that the respondent exhibited open, candid and straightforward compartment and there was no inkling of secretive, hidden, concealed, covert, clandestine or veiled conduct shown by the respondent. It is also not disputed that the respondent had no mala fide intention. In fact he was misled by the Officer of the Law who assured him that he was free to stay at Kokrajhar. The learned counsel for the parties agree that 'mens rea' is an essential constituent of the offences under Section 13 and 14 of the Foreigners Act, in so far as they are applicable for violation of the Foreigners (Restricted Areas) Order, 1963.
4. In the jungle of laws it is well-nigh impossible to know all laws and one cannot see the wood for the forest. What about a foreigner who arrives with a genuine passport He is not supposed to know the ancillary laws made in the form of Orders, Rules and Notifications and/or constructions and restrictions imposed by them. It is true that they are supposed to know the provisions of the Foreigners Act. However, if there are Orders, Notifications, Rules, made under 'the Act' there must exist some mechanism to inform them about the existence of the delegated legislations, on their arrival. The gravamen of the charge against the respondent is violation of a restriction imposed by para 3 of the 'Order', made under Section 3 of 'the Act'. It follows, therefore, that it is not the case of direct or positive violation of 'the Act' but that of a prohibition contained in a delegated legislation. 'The Order' itself does not provide for any penalty but the provisions of Section 3 read with Section 14 of the Foreigners Act make a person liable for violation of the prohibition imposed by and under 'the Order'. Interestingly, even the Officer-in-Charge of the Police Station had no knowledge about the restrictions imposed by and under Clause 3 of the 'the Order'. The conduct of the Police Officer in making the endorsement on the passport and not asking the respondent to leave Kokrajhar forthwith is sufficient to show that even a policeman did not know the existence of such restriction. Therefore, on the facts and circumstances of the case and in the setting, it is not possible to convict the respondent under Section 14 of the Foreigners Act.
5. The offence under Section 14 is punishable with imprisonment which may extend to 5 years with fine. Section 13 of 'the Act' clearly shows that 'mens rea' is necessary. Let us assume that the provisions of Section 14 of 'the Act' read with para 3 of 'the Order' create crime of absolute prohibition (or strict liability) and examine whether 'mens rea' is a constituent of the offence or not.
6. That proof of the existence of a guilty mind is an essential ingredient of a crime, is not at all in doubt The problem is the extent to which the said rule is applicable in the case of offences created by Statute or statutory instrument There is a presumption that 'mens rea' or evil intention or knowledge of the wrongfulness of the act, is an essential ingredient in every offence; however, the presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter wife which it deals with and both must be considered together. We have stated that Section 13 of 'the Act' clearly manifests that 'mens rea' is undoubtedly an ingredient of the offence. The contravention of Section 14 is punishable with long term imprisonment. As such, we conclude that the contravention contemplated in Section 14 of 'the Act' must be read as 'knowingly contravenes'. It is of the utmost importance for the protection of the liberty of the subject that the Court should always bear in mind that unless a statute either clearly or by necessary implication rules out 'mens rea' as a constituent part of a crime an accused should not be found guilty of an effence against the criminal law unless he has got a guilty mind. However, there are certain exceptions like the statutes regulating public welfare in respect of some particular activities, e.g., statutes regulating the sale of food and drink etc. In such offences of public welfare nature it can be and frequently has been inferred that the legislature intended that such activities should be carried out under conditions of strict liability. The presumption is that the statute or statutory instrument can be effectively enforced only if those in-charge of the relevant activities are made responsible for seeing that they are complied with. When such presumption is to be inferred, it displaces the ordinary presumption of 'mens rea'. However, the present offence does not belong to that class or of that nature. We are of the opinion that where it can be shown that the imposition of strict liability would result in the prosecution and conviction of a class of persons whose conduct could not in any way affect the observance of the law, even where the Statute is dealing with great social evil, strict liability is not likely to be intended unless the legislature clearly speaks otherwise. The avowed object of 'the Order' is prohibition of persons from entering in certain areas, but there is nothing that a man can do about it if, before commission of the offence, there is no practical or sensible way in which he can ascertain whether his entry is permissible or not. In Lim Chin Aik v. The Queen, 1963 AC 160 (PC), a similar question cropped up as to whether 'mens rea' was a necessary ingredient of an offence under the Immigration Ordinance, 1952 of the State of Singapore and it has been held that 'mens rea' is a constituent part of such a crime. The accused was acquitted as he had no 'guilty mind'. In Delhi Administration v. Mohammad Iqbal, AIR 1971 SC 472, the question was whether 'mens rea' was an ingredient of an offence under Section 14 of 'the Act' and their Lordships observed (at p. 473):
'The present case falls within a short compass. The charge is that by failing to obtain a residential permit the respondent contravened the provisions of Rule 7 (2) of the Foreigners Order. His failure to obtain the residential permit as well as his contravention of the Foreigners Act suffices to hold that not only he had mens rea but he was guilty of an offence in contravention of Rule 7 (2) of the Foreigners Order, 1948 and Section 7(2) of the Foreigners Act.'
It follows therefore that mens rea is an essential element of such offences.
7. We do not propose to express any opinion in regard to the other offences created under the Foreigners Act, but we propose to confine ourselves in respect of the offence created by para 3 of the Ordinance and hold that 'mens rea' is a necessary ingredient of the offence. If a person unknowingly steps inside a restricted area in good faith and without any ulterior motive, in our opinion, does not commit as offence under Clause 3 of 'the Order' in the absence of a guilty intent.
8. On appraisal of the entire evidence on record we conclude that in the instant case the alleged breach was (not?) committed by the accused as, (i) he had no knowledge that the area in question was out of bound for him; (2) he had no knowledge as to the existence of 'the Order' and/or he was to obtain any prior permit to stay at Kokrajhar; (3) an impression was created in his mind in view of the endorsement made by the Officer-in-Charge of the Police station that his stay at Kokrajhar was permissible under law; (4) He went to the police station immediately on his arrival and got an endorsement made by the police officer, These factors go to show that the respondent was blissfully ignorant about breach of any law, the omission to obtain 'a prior permit' to enter and stay at Kokrajhar was a bona fide one.
9. Upon the whole we find no ground to interfere with the order of acquittal and accordingly we dismiss the appeal.
10. Now comes the question of a further order before parting with the records. The respondent cannot be allowed to stay without a valid permit required under 'the Order'. He must leave the restricted urea forthwith. Mr. B. K. Das, learned counsel for the respondent submits that the respondent shall quit the restricted area no sooner he is delivered back his passport by the learned Magistrate and/or the police officer. Accordingly, we direct the learned Magistrate to return the passport of the respondent. If title passport is not with the Court, the learned Magistrate shall call for the same and cause it to be returned to the respondent forthwith. On receipt of the passport the respondent shall leave Assam on the very date he receives it. If he stays back beyond 24 hours he may be liable to prosecution under Section 14 of the 'the Act' react with para 3 of 'the Order'.