1. The six petitioners were convicted by the Munsiff-Magistrate, Belonia Under Section 6(a)(3) (sic) of the Indian Passport Act and sentenced to pay a fine of Rs. 50/- each and in default to undergo rigorous imprisonment for one month. He further directed the O/C, Belonia Police station to remove the petitioners from Indian Territory after their release. The petitioners moved the Sessions Court in revision. But the Sessions Judge held that there was no room for interfering with the decision of the Magistrate. Now they have come in revision to this Court.
2. 1 have perused the entire evidence in the case of 10 P. Ws. and 5 D. Ws, I regret to say that the appreciation of the evidence of the case by both the lower Courts has been utterly perverse and a grave injustice would be done to the petitioners if the orders of the lower Courts are allowed to stand.
3. It is interesting to note how this case arose. According to P. W. 7, the Choukidar of the west Pilak village attached to the Belonia Police station, he gave a written report to the Daroga Babu about 6 months before their arrest on the 3rd of March, 1958 stating that the petitioners had been coming over to west Pilak village and staying there without Passports. According to P. W. 7, the Choukidar of Julaiban P. W. 10 was present with him when he made the said report. We may take it therefore that the said report is the first information against the petitioners of the offence with which they have been charged. Neither of the lower Courts have referred to this evidence of P. W. 7. This first information report was not produced in the trial. It is interesting to note that the arrest of the petitioners took place 6 months, after the said report. When P. W. 8 the O/C in-charge of Belonia Police station was questioned about the evidence of P. W. 7, he stated that P. W. 7 did not give any such report to him against the petitioners, but only informed him orally that many Pakistani people work in the said village by coming over to that area. When we turn to the evidence of P. W. 10 we find that he did not refer to any such written report given by P. W, 7 to P. W. 8. P. W. 7 had said that after the arrest, P. W. 8 sent word to him and on his arrival he was asked about the petitioners and he told P. W. 8 that they were Pakistani people. P. W. 8 did not say that in the course of his investigation after the arrest, P. W. 7 was questioned by him. According to P. W. 10 he was present at the time of the arrest along with various Matbars, but that in the course of the enquiry after the arrest, P. W. 7 was not questioned. Thus there is serious discrepancy between the evidence of P. W. 7, P. W. 8 and P. W. 10 with regargd to the circumstances or the arrest and the enquiry.
4. We further learn from the evidence of P. W. 10 that for 3 or 4 years before the arrest litigations have been going on between the Muslims on the one hand and Hemendra, Surendra and Jagadish Sarkar on the other hand who are said to be Matbars of the Hindu Community of that village and who had also come over from Pakistan some years previously. It was also admitted by P. W. 6 Surendra that he has got a Criminal case against several Muslims of Mid-Pilak village. He admitted that about 200 Muslim families have their permanent residences in the Mid Pilak and west Pilak villages and that Jabbar Ali D. W. 1 was the leader of the Muslims and that some of the petitioners were working in the house of the said Tabbar Ali. It may be mentioned here that all the petitioners are Muslims. When we turn to the evidence of P. W. 10, we find that all the petitioners are residents of west Pilak village and they have their wives and children living with them. He mentioned that one of the petitioners Makan Ali had been living with his wife and son in the house of his brother Badi Alam who is an Indian citizen. So also Akram Ali another petitioner and his son Ayub Ali have been living with their families in the house of Badi Alam. With regard to the petitioner Ali Ajjam, P. W. 10 said that he too with his wife and son had been living in the village. Regarding another petitioner Manu Mia, he said that he with his wife and Son has been in the village for 8 to 9 years. Regarding Cherag Ali, P. W. 10 said that for H years he has been living in the village and had brought his wife to the place. P. W. 5 Pra fulla Sarkar stated that Jabbar Ali D. W. 1 and his son-in-law Sultan Ahmed have filed a case against him and 26 or 27 other persons for cutting away paddy from their land. The suggestion put to P. W. 4 Barada Kumar Choudhury was that the Hindus of the place were trying to drive away the Muslims from the west Pilak and Mid-Pilak villages. We also learn from the evidence of P. W. 4 that when he was an agent for selling kerosene on contract about 4 years before the arrest, the petitioners Akram Ali and Ayub Ali used to carry his goods every now and then.
5. It is really a pity that the lower Courts did not discuss the evidence of the P. Ws. or the D. Ws. to understand the background in which this case arose. It has emerged from the evidence of the prosecution witnesses themselves that all the petitioners have been living in west Pilak village for some years and some of them for very many years with their families and doing agricultural work. It also turned out that there was friction in the villages of Mid-Pilak and west Pilak between the Muslims on the one hand headed by Jabbar Ali and Hindus headed by some of the prosecution witnesses like Jogendra Sarkar, Barada Choudhury, Surendra Nath P. Ws. 3, 4 and 6 and also by others like Jagadish Sarkar and Hemendra Nath. Admittedly there were hundreds of Muslim families who are permanent residents of west Pilak and Mid-Pilak. We again find from the evidence of D. W. 1 Jabbar Ali which evidence got support from the evidence of prosecution witnesses themselves that there were party frictions between the Hindus and Muslims of Mid-Pilak and west Pilak regarding lands and hence the prosecution witnesses got the petitioners arrested by the Police out of enmity.
6. According to D. W. 1 he knew all the petitioners for 15 to 16 years and they have all been residing in west Pilak with their families and they are permanent inhabitants of this State. The defence examined 4 other witnesses, all of them residents of west Pilak village. D. W. 2 Jagat Bandhu Tripura knew the accused persons for 6 to 7. years- and he has stated that they all have their hearth and home in west Pilak. D. W. 3-knew them for 14 to 15 years and according to him, the houses of the petitioners are near his own house. D. Ws. 4 and 5 knew the petitionem or 15 to 16 years. All this defence evidence was rejected by both the lower Courts and they accepted the evidence of the prosecution witnesses. We shall now see that evidence.
7. Among the prosecution witnesses only two-persons belonged to west Pilak village and they are P. Ws? 4 and 6, both of them leaders of the Hindus and present at the time of the arrest of the petitioners and interested in seeing that the petitioners all of whom are Muslims are convicted. All that P. W. 4 said was that some of the petitioners came to the village one year ago and some others 2 years ago. This evidence did not mean, that the petitioners came from Pakistan. As for P. W. 6 tie simply said that he had been seeing the petitioners only for 2 years in the village. He no doubt said that the petitioners came from Pakistan. But he did not say that he saw them actually coming from Pakistan. Nor did he know from which village in Pakistan they came. P. W. 6 himself came from Pakistan only 3-jj years ago and according to him he has got a migration certificate which however he did not produce.
8. As for the other witnesses P. Ws. 2, 3 and 5 they simply stated that they have been seeing: the petitioners only for 1 or 2 years. Such evidence certainly is not sufficient to show that the petitioners have come from Pakistan without Passports. No doubt all the prosecution witnesses say that the petitioners have no hearth and home in west Pilak village. But the evidence of P. W. 1O the Choukidar of Julaibari showed that they have got houses where they live with their families.
9. In this state of evidence it seems to me that the lower Courts were very much in error in holding that the accused persons were Pakistanis. It appears that on 3-5-1958 at about 7 P.M. when the petitioners were returning from the market with articles purchased from the market they were arrested by P. W. 8 on the ground that they did not possess Passports. P. W. 10 stated that when they were thus arrested the marketed goods were handed over by the petitioners to their children. The manner of the arrest appeared to be very suspicious because all the leaders of the Hindu Community in the west Pilak and Mid-Pilak villages appeared to have been with the Police Officer P. W. 8 and it would look as if those leaders of the Hindu Community had prevailed upon P. W. 8 who is himself a Hindu to arrest the petitioners. One fails to understand why these leaders of the Hindu Community, if they are to be believed, did not report to the Police as soon as the petitioners entered India without a Passport from Pakistan and why they waited for 2 years before giving the information to the Police to arrest them. As I have stated, there u not one single witness on the prosecution side-who has actually seen any one of petitioners-entering India from Pakistan.
10. When we turn to Section 3 of the Indian Passport Act, 1920 we find that the Central Government was authorised to make rules requiring-the persons entering India from outside to be in possession of Passports. The Indian Passport Rules, 1950 which were made Under Section 3 of the Indian Passport Act, 1920 again provided by Rule 3 that no person, proceeding from any place putside India, shall enter, or attempt to enter, India unless he is in possession of a valid Passport. Rule 6 of the Indian Passport Rules makes it an offence to contravene or abet the contravention of the provision of Rule 3. The petitioners were charged under Rule 6(a) of the Indian Passport Rules, The learned Magistrate has misunderstood the provision of law and has convicted them Under Section 6(a) of the Indian Passport Act. There is no such section under Indian Passport Act under which the petitioners can be convicted. Evidently he refers to Rule 6(a) of the Indian Passport Rules. Now what Section 3. read with Rules 3 and 6(a) of the Indian Passport Rules makes an. offence is the entry into India from outside without a Passport. Thus in order to convict a person under Rule 6(a) it is necessary to prove that he entered India from outside. 1 have already stated that there is not one single prosecution witness who has seen any of the petitioners entering India. One fails to understand how under those circumstances the petitioners could have been convicted at all. as even according to the evidence of the prosecution witnesses all the petitioners have been living in India with their families for at least 1 to 2 years. P. W. 10 stated with reference to one of the petitioners namely, Manu Mia that he has been in India with his family for 8 to 9 years.
11. Even the manner of arrest of the petitioners by P. W. 8 was highly improper. Section 4 of the Indian Passport Act permits an Officer of Police to arrest without warrant any person who has contravened or against whom reasonable suspicion existed that he has contravened any rule of order made Under Section 3. It means that P. W. 8 had no right to arrest any of the petitioners unless he has seen them enter India or at least had reasonable suspicion that they had entered India without a Passport. P. W. 8 knew from the persons present at the time of the arrest that the petitioners had been residents of India for at least 1 to 2 years. He had therefore no right to arrest any of these persons Under Section 4 of the Indian Passport Act or to charge them under Rule 6(a) of the Indian Passport Rules.
12. The entire case against the petitioners has been misconceived. At this rate, any person living near the borders of India even if he is an Indian has to be in fear of arrest if he is not as to produce a Passport and particularly so if lie happens to be a Muslim and the border happens to be near Pakistan. No Police Officer has a right to proceed in that manner and arrest a person near the border areas if he is not able to produce a Passport, simply because he happens to be a Muslim. Our country is not a country belonging to persons of any particular religious denomination. It is a secular State where citizens have equal rights to whatever religion, race or community they may belong. This is made clear in Article 15 of the Constitution. Particularly near the Indian border with Pakistan, if there happens to be friction between Hindus and Muslims, there is the danger that Police Officers like P. W. 8 would take sides and arrest Muslims like the petitioners. It is the duty of Courts to guard against couch excesses committed by Police Officers. It ought to have been patent to the Magistrate that this was a case where the petitioners who were on the side of D. W. 1. the leader of the Muslim Community were illegally arrested by P. W. 8 at the instigation of the leaders of the Hindu Comtraunity. Courts should not make distinction between persons belonging to different religions in I such matters. It would then amount to a travesty 1 of justice.
13. The learned Magistrate and the learned Sessions Judge have stated in their judgments that the petitioners had no house or land in India, that they did not show that they were voters in India, and that they did not pay any 'Adda Tax' and hence they must be treated as Pakistan nationals and not as Indian citizens. It is an absurd statement to make. It is a well-known fact that all Indian families do not possess houses or lands of their own nor is it every Indian who pays 'Adda lax', With regard to the voters' list it was for the prosecution to prove by production of the voters' list of west Pilak village that the petitioners were not voters. The burden of proof was on the prosecution to prove Khat the petitioners wtere not residents of west Pilak village and had entered India from outside without a Passport. This burden was all the heavier in the face of the prosecution evidence that the petitioners have been residents of west Pilak village for 1 to 2 years. 1 have already pointed out that in the case of such persons Section 3 of the Indian Passport Act and Rules 3 and 6(a) of the Indian Passport Rules will not apply at all as the entry of the petitioners into India without a Passport has not been seen by any of the prosecution witnesses.
14. The whole case seems to have been dealt with on the basis that the petitioners were foreigners and not Indian citizens. That is the mistake committed by both the lower Courts. We are not concerned in dealing with the Indian Passport Act and the Passport Rules with the question whether a person who enters India from outside is a foreigner or an Indian citizen. Any person entering India' from outside except those exempted under Rule 4 of the Indian Passport Rules would require a' Passport. The question whether the petitioners were foreigners or Indian citizens would come in only when they are proceeded against Under Section 3 of the Foreigners Act, 1946. All the discussion by the lower Courts as to whether the petitioners were Pakistanis or Indian citizens was beside the point,
15. It follows that the convictions and sentences of the petitioners cannot be sustained. The revision is allowed and their convictions and sentences are set aside and they are acquitted.