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Daniel Hailey Walcott and anr. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Case NumberCriminal Appeal Nos. 810 and 815 of 1966
Judge
Reported inAIR1968Mad349; 1968CriLJ1282; (1968)1MLJ229
ActsIndian Arms Act; ;Sea Customs Act; Import and Export Control Act, 1947; Foreigner's Registration Act; Defence of India Act; Indian Passports Act, 1920
AppellantDaniel Hailey Walcott and anr.
RespondentState
Cases ReferredSatwant Sing Sawney v. Ramratnam
Excerpt:
indian penal code (act xlv of 1860), section 25 and section 30-- word fraud or fraudulently--scope of-explained--legal right-- what is meant by-explained--passport--what is--whether it creates legal right--it creates legal right as mentioned in section 30, indian penal code;foreigners act (xxxi of 1946), section 5 clauses (1) and (3) clause (5)--scope of--explained;the appellant, an american national gained entry into this country by using a forged british passport. he was prosecuted and convicted for various offences. on appeal against his conviction the main questions that arose for consideration were (i) what is meant by the word fraud or fraudulently as defined in section 25 of the indian penal code (act xlv of 1860), (ii) whether a passport is a valuable security as contemplated..... (1) the appellants in both these appeals, daniel hailey walcott and jean claude donze were separately tried on various charges by the sessions judge, madras. i propose to deal with these appeals in this judgment; but separately, as the points raised in both the appeals are the same though the facts are slightly different.(2) c. a. 810 of 1966. the appellant daniel hailey walcott was charged under ten counts, of which he was convicted on counts nos. 1 and 3 to 10 and was sentenced to various terms of imprisonment, the maximum being r. i., for five years, the sentence to run concurrently by sessions judge, madras.(3) the facts of the case which are almost admitted are briefly as follows; the appellant is a national of the united states of america. he landed at meenambakkam aerodrome,.....
Judgment:
(1) The appellants in both these appeals, Daniel Hailey Walcott and Jean Claude Donze were separately tried on various charges by the Sessions Judge, Madras. I propose to deal with these appeals in this judgment; but separately, as the points raised in both the appeals are the same though the facts are slightly different.

(2) C. A. 810 of 1966. The appellant Daniel Hailey Walcott was charged under ten counts, of which he was convicted on counts Nos. 1 and 3 to 10 and was sentenced to various terms of imprisonment, the maximum being R. I., for five years, the sentence to run concurrently by Sessions Judge, Madras.

(3) The facts of the case which are almost admitted are briefly as follows; the appellant is a national of the United States of America. He landed at Meenambakkam Aerodrome, Madras, at about 6-30 P. M. on 31-12-1965 from Air Ceylon Flight A. E. 207 from Colombo with the British passport in the name of one B. P. C. Comyn, a British subject. It appears that he had visited this country on prior occasions. A brief history of those visits may be necessary to be noted for appreciating one of the charges under which he had been convicted.

(4) On 15-1-1962, the appellant landed at Santa Cruz Aerodrome, Bombay, with a passport describing himself as Daniel Bailey Walcott a United States National. On 23-1-1962, he left for London. It appears, during that visit, before he left the country he represented to the officials of Air India, New Delhi, that he was the President of the Trans Atlantic Airlines Ltd. and in that capacity negotiated with them in respect of charter flights for transport of goods between India and Afghanistan, and subsequently an agreement was entered into between the appellant describing himself as Daniel Hailey Walcott and Air India in relation to charter flights. In pursuance of the agreement the appellant employed on Shri Nurcharan (P. W. 10) as an aircraft mechanic between February and September 1962.

(5) The appellant came back to India and landed at Palam Airport, New Delhi, on 8-3-1962, describing himself as Daniel Hailey Walcott, Jr. with a residential permit valid till 25-4-1962. From 13-4-1962, for about 5 or 6 months, the appellant stayed with his wife in the Ashoka Hotal, New Delhi, registering himself as Daniel Hailey Walcott, a United States National. While he was staying in Ashoka Hotal, the Delhi Police registered a case against him under the Indian Arms Act and filed charge-sheet before the Sub Divisional Magistrate, New Delhi, In connection with that case, the appellant was detained in the Central Jail, New Delhi, from 25-9-1962 to 1-12-1962. He was subsequently released on bail and he left India. The Assistant Collector of Customs, New Delhi, filed a complaint on 22-2-1963 against the appellant under the Sea Customs Act, and the Import and Export Control Act of 1947. On 24-2-1963, the appellant landed at the Palam Airport and left India on 2-3-1963 and he returned in April to New Delhi. The appellant was convicted by the Sub Divisional Magistrate, New Delhi, on the complaint given by the Assistant Collector of Customs and sentenced to R. I., for six months and to pay a fine of Rs. 2000. He was detained in the Central Jail from 23-8-1963 till 11-9-1963 when he was released by the order of the appellate Court which reduced the sentence to the period already undergone and increased the fine amount. On 23-9-1963, he left New Delhi. After he left, it appears that the Delhi Police registered another complaint against him and obtained a non-bailable warrant to arrest the appellant. As the appellant absconded from this country, a proclamation was issued on 20-10-1964 declaring the appellant as a proclaimed offender. Another case was subsequently registered under the provision of the Foreigner's Registration Act and the Defence of India Act suspecting the appellant as one of the aliens who entered this country by using a forged passport. A warrant was issued by the Additional Chief Presidency Magistrate, Bombay on 19-3-1965 to arrest the appellant in England and produce him before the Sub Divisional Magistrate, New Delhi. Of course, the appellant denied knowledge of the two cases registered against him.

(6) In this state of affairs, the appellant landed at Meenambakkam Air port on 31-12-1965 with the British passport in the name of Barry Philip Charles Comyn as already noted. After landing, the appellant produced at the Health counter a declaration form of origin and health standing in the name of one B.P.C. Comyn, a British subject. At the Passport Security counter, the appellant producer before P. W. 23, the Sub Inspector of Police, attached to the Port Registration office, a British passport, Ex. P-40, and a disembarkation card Ex. P-56, both standing in the name of B. P. C. Comyn. After passing the passport security counter, the appellant proceeded to the Customs counter and produced before the Customs officer the passport and represented that he was a tourist. The officials passed him out as they believed that he was a tourist holding a British passport.

(7) The appellant went to Oceanic Hotal, Madras, with another foreigner at about 8-45 P. M. the same day and obtained accommodation describing himself as B. P. C. Comyn, a British National, Engineer by profession, permanently residing at No. 14-A Malborough Place, London, and having a passport bearing No. 991143. This description was given in Ex. P-77, the Arrival register by the appellant in his own handwriting. On the next day, the appellant and his companion left the hotel for Bombay. Whilst he was staying in the West End Hotel, Bombay, along with his companion, he was arrested by D.H. Crawford, Deputy Superintendent of Police, Central Bureau of Investigation on suspicion that he might be Walcott, wanted in two cases. His finger prints were taken and they were compared with the finger printslip of Daniel Hailey Walcott which was taken by the Delhi police in connection with the earlier conviction and kept at the police office in Delhi. On a comparison of the finger printslip and the finger prints taken from the appellant in Bombay by the Finger Print Expert, it was found that they tallied. The passport Ex. P-40 was seized from the appellant at Bombay. As it was found that he was in possession of passport in the name of B. P. C. Comyn, the police suspected that he had come to this country with a forged passport in order to avoid the detection of his identity as Daniel Hailey Welcott. What happened subsequently in the course of the investigation is not material for the purpose of this case excepting that he made a judicial confession in the course of the investigation before the Presidency Magistrate of Greater Bombay which would be adverted to later in dealing with his confession.

(8) The prosecution claimed that the British passport Ex. P-40 produced by the appellant was a forged one, that the appellant was not a British subject and his name was not B. P. C. Comyn, and that he used the forged passport fraudulently knowing that it was a forged document.

(9) I propose to deal with charge No. 10 first which is the main charge, the other charges being either allied or subsidiary. This charge deals with the appellant having used forged document, a valuable security fraudulently knowing it to be false to gain entry to this country. In respect of this charge, the following facts were proved.

(10) On 19-11-1965, an application dated 17-11-1965 with a passport photograph of the appellant annexed thereto was received at the passport office, London, praying for the issue of a passport to Barry Philip Charles Comyn, an Engineer born in England on 28-6-1934. It was attested by Harry F Johnson 14 John Street, London W. C. 1. In pursuance of that, a British passport Ex. P-40 was issued to the said Comyn on 22-11-1965. It was found that a man bearing the name Barry Philip Charles Comyn. an Engineer, was not residing in the address given in the application but a man bearing that name who was born in London on 28-6-1934 died in 1940 when he was six years old, during war operations. It was also found that no solicitor by name Harry F. Johnson lives in the address given in the application.

(11) The appellant admitted that his name is Daniel Haily Walcott and that he is a national of United States of America. He landed in India in January 1962, as an America national under the name of Daniel Hailey Walcott and even during his subsequent visits to India. he came in the name Daniel Hailey Walcott. He also admitted that he landed at Meenambakkam Airport on 31-12-1965 with the British passport Ex. P-40 and produced it before the officials and that he entered his name in the register maintained in the Oceanic Hotel as B. P. C. Comyn, a British subject. He added that the passport was arranged through a professional expert forger in London. The appellant contacted the forger who suggested that a passport could be had in the name of Barry Philips Charles Comyn and on his advice a paper containing the signature of Barry Philips Charles Comyn written by the appellant in his own handwriting was given and the forger subsequently obtained the passport and gave it to him. That the appellant obtained the British passport in the name of B. P. C. Comyn is not disputed and that he used the passport for entering into this country is also not disputed. In the context, it is necessary to consider the judicial confession made by the appellant, the relevant portion of which is as follows:--

"I am Daniel Hailey Walcott American National aged 38. I was born at Dalhart, Texas, U. S. A., on 26-11-1927. I was educated in the University of Virginia in U.S.A., from which I hold Bachelor of Science degree. I believe it is necessary for me to make a statement at this time of the events leading to the commission of the following acts. We flew to Colombo, Ceylon from Paris and took the Ceylon Airways to Madras arriving on 31-12-1965 evening. I was using a false British passport under the name of Barry Philip Charles Comyn and Mr. Donze was using false British passport udner the name of Stephen Thomas Lamb. These passports were obtained from the Foreign Office, London, by making an application with the birth certificate of a deceased person, using our photographs. We flew immediately to Bombay after spending the night in Madras and......" The appellant had retracted from the judicial confession and stated that he gave the confession under threat, pressure and coercion. The learned counsel appearing for the appellant contended that he was kept for a long time in the custody of the police and that in those circumstances, it should be presumed that the confession must have been give only under pressure. I do not think there is substance in this contention. The appellant appears to be an intelligent and experienced man. He must have known the consequences of giving a judicial confession even under threat. Sufficient warnings were given by the magistrate, who recorded the confession that if the appellant chose to give the confession that if the appellant chose to give the confession, it would be used against him. The appellant has given a lengthy confessional statement in respect of matters not relevant to this case. A perusal of the confessional statement gives an impression that it is not only true but also voluntary. Besides this, it is very significant to note that in an affidavit filed by the appellant for a writ of habeas corpus he stated that he might be permitted to make a confessional statement in the presence of a Magistrate. In the committal Court he admitted that he made the judicial confession. It was only in the Sessions Court he retracted. For all the reasons mentioned above. I am convinced that the judicial confession made by the appellant was voluntary and true.

(12) From the facts stated above, it is clear that the appellant landed at Meenambakkam aerodrome on 31-12-1965 with the British passport in the name of B. P. C. Comyn, that he obtained a passport in the name of Comyn with the help of a forger, that the signature of Comyn in the application attached to the passport was in the handwriting of the appellant, that the passport used by him in gaining entry into this country is a false document and that the appellant was known at all material times as Daniel Hailey Walcott.

(13) The learned counsel appearing for the appellant contended that even assuming the facts to be true, it is not proved by the prosecution that the passport is a forged document as defined in Section 463, I. P. C., and that the appellant used the document fraudulently knowing it to be forged. To appreciate the contentions of the learned counsel in respect of this charge, it may be necessary to note the relevant sections of the Indian Penal Code "Forgery" as defined in Sec. 463, I.P.C., is as follows:--

"Whoever makes any false document or part of a document with intent to cause damage or injury...........or with intent to commit fraud or that fraud may be committed, commits forgery".

Making a false document is defined in S. 464 I. P. C., which runs as follows:--

"A person is said to make a false document-first-who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed.

The other two provisions of the section are omitted as they are not relevant for the purpose of the discussion in the case. "Forged document" is defined under Sec. 470 I. P. C. A false document made wholly or in part by forgery is designated 'a forged document'. The requirements to constitute the offence of forgery may be broadly stated as follows; (1) The document or the part of the document must be false in fact; (2) It must have been made dishonestly or fraudulently within the meaning of the words as used in Sec. 464 I. P. C. and (3) It must have been made with one of the intents specified under Section 463 I. P. C.

(14) It is contended that the passport Ex. P-40 was issued by the competent authority and the document cannot be said to be forged though the particulars contained in page 2 of the passport (Ex. P-40-a) under the false signature of B. P. C. Comyn may be false and it is further contended that those particulars cannot be said to be a part of the document. Hence, it becomes necessary to consider whether the particulars contained in page 2 of Ex. P-40 constitute a part of the document. It appears that in the United Kingdom, to obtain a passport, the applicant must submit what is called a 'person, description slip' along with the application showing particulars relating to his profession, place and date of birth, country of residence, height, colour of hair and eyes and any other special mark and has to be signed by the applicant and this will be pasted to page 2 of the passport. This slip after it is pasted to the passport, undoubtedly becomes a part of the document, without which the passport cannot be recognised by the authorities writing the particulars themselves, the slip prepared by the applicant is placed in the passport as part and parcel thereof. The learned counsel had to concede that Ex. P-40(a), namely, page 2 of the passport might be a part of the document, but contends it was not made with intent to commit fraud or that fraud might be committed. It is true that if a document is merely false, it is not enough to bring it under the offence of forgery. The main element is, the false document must have been made with a fraudulent intention. There cannot be any doubt that the part of the document, viz., p. 2 in the passport is false. But the question is whether it was made with fraudulent intention. "Fraudulently" is defined in S. 25 of the I.P.C. It says that "a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise". This definition does not give much help as it is used tataulogically. The word 'fraud' or 'fraudulently' must be understood in the general and popular sense. It involves two elements namely, (1) deceit, and (2) injury caused or likely to be caused to the person deceived or someone else in consequence of the deception. If a person by deceiving another derives any advantage from it, which he could not have had, if the truth had been known, and thereby causes injury to the body, mind or reputation of the deceived, he commits fraud. In all case where an advantage has been obtained by the deceiver, there will be invariably an equivalent disadvantage in loss or risk of loss to the deceived or to someone else.

(15) In Dr. Vimla v. Delhi Administration , the

case-law on this subject was fully discussed and the principle has been laid down in the following terms:--

"The expression 'defraud' involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss, i.e., deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is any benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied......... Non-economic advantage to the deceiver or non-economic loss to the deceived need not co-exist."

(16) Sir James Stephen in his "History of the Criminal Law of England" Vol. II, p. 121, observes-which has been quoted in Kotamraju Venkatarayadu v. Emperor, (1905) ILR 28 Mad 90 at p. 96, the Full bench decisions of this Court, subsequently followed and approved by the Supreme Court in --

"Whatever the words 'fraud' or 'intent to defraud' or 'fraudulently' occur in the definition of a crime, two elements of the crime; namely, first, deceit or an intention to deceive, or in some cases, merely secrecy; and secondly, either actual injury, or possible injury, or an intent to expose some person either to actual injury or to a risk of possible injury by means of that deceit or secrecy." "This intent", he adds, "is very seldom the only, or the principal, intention entertained by the fraudulent person, whose principal objet in nearly every case in his own advantage...... A practically conclusive test of the fraudulent character of a deception for criminal purposes is this: Did the author of the deceit derive any advantage from it which could not have been had if the truth had been known? If so, it is hardly possible that the advantage should not have had an equivalent in loss of risks of loss to someone else, and if so, there was fraud".

(17) It is, therefore, clear that the person who deceives another and derives benefit or advantage, possibly causing injury to the deceived in body, mind or reputation and such others commits fraud and that even if no corresponding loss or disadvantage to the deceived is established, it could be inferred that if one gets benefit or advantage, someone will incur loss or disadvantage to some extent. Applying this principle in the present case, there cannot be any doubt that Ex. P-40(a), p. 2 of the passport, a part of the passport is a false document made, in order that fraud might be committed. The maker must have known that what was made was false and that he intended that the authorities concerned could be deceived by making such authorities believe the document to be true when it was false and allow the holder of the document to enter the country to which he was bound by virtue of the passport. The appellant admitted in his statement under S. 342, Crl. P.C., that it was he who put the signature of Comyn in Ex. P-40(a), a part of the passport. I, therefore, find that a part of the passport, namely, page 2 of Ex. P-40 is a forged document.

(18) It was contended, however, by the learned counsel for the appellant, that at the worst it could be said that the appellant furnished false particulars in the application and forged the signature of one Comyn in that application; but it cannot be said the appellant made the part of the passport. I do not think there is any substance in this contention. It is not the application that is the subject-matter of this case, but the passport. To put it short, page 2 of the passport is made by the appellant and the signature of B. P. C. Comyn therein as admittedly forged.

(19) The appellant has been convicted for having used the forged documents fraudulently. He admitted that he was in possession of the forged British passport Ex. P-40 when he landed at Meenambakkam airport. He produced the passport to the authorities concerned. By producing the forged passport, he made the authorities believe that it was genuine and thereby deceived and obtained the advantage of gaining entry into this country. The appellant by deception had caused injury to mind and reputation of the offices concerned, in that if the officers had known that it was a forged document, at the time he produced, they would not have allowed the appellant to enter and to that extent, a detriment was caused. There is no doubt that the appellant fraudulently used Ex. P-40 the passport as genuine which he knew was a forged document.

(20) The next important question to be considered is, whether Ex. P-40 the passport is a valuable security since the appellant was convicted under Section 471 read with Section 467, I. P. C. Section 467, I. P. C. is a penal section in respect of forgery of valuable security. Elaborate arguments were advanced by the learned counsel appearing on both sides, and, therefore, it may be necessary to deal with this point with due consideration.

"Valuable security" is defined in S. 30 of the Indian Penal Code:

"The words 'valuable security' denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right."

In view of this definition, we are now concerned in this case whether the passport created a legal right. We have to first consider what a legal right is before dealing with the nature of the passport and whether it creates a legal right.

(21) Legal right is a difficult concept. It is not defined. It is, therefore, necessary to note carefully what the eminent jurists have said about this concept of legal right. Roscoe Pound in his Jurisprudence (Vol. IV, Chap. 21, p. 70) stated as follows-:-

"..................by the end of the last century a legal right had come to be defined as a secured interest, or as a capacity of asserting a secured interest, or as a claim that could be asserted in the Courts."

Roscoe Pound prefers to follow the English analytical jurists and thinks of legal right lies in the capacity of assertion rather than of an assertable claim. In the same page, it is stated:

"The capacities of asserting it (legal right) before Courts and administrative agencies by which the interest is given efficacy are some At pp. 70 and 71, it is stated:

"The capacities of creating, divesting and altering legal rights in the stricter sense or of creating liabilities, as means of securing recognised interests (legal powers) are some conferred and some recognised............The exemption on certain occasions from liability for what would otherwise be infringements of legal rights, are sometimes conferred, as in case of emergency privileges.....in all of these juristic conceptions through which recognised and delimited interests are secured, there is a capacity of asserting them before Courts and administrative agencies."

At pp. 74 and 75, Roscoe Pound again says:

"I should put the juristic conceptions by which legally recognised and delimited interests are secured as legal rights (in the stricter sense), powers, liberties, privileges, duties and liabilities."

Salmond on Jurisprudence (12th Edn. at p. 224) states that a legal right in the generic sense may be defined as any advantage or benefit conferred upon a person by a rule of law. Again at p. 233, under the headnote "The kinds of legal rights", it is stated:

"A perfect right is one which corresponds to a perfect duty; and a perfect duty is one which is not merely recognised by the law, but enforced...............In all ordinary cases, if the law will recognise a right at all, it will enforce it. In all fully developed legal system, however, there are rights and duties which, though undoubtedly recognised by the law, yet fall short of this typical and perfect form............Examples of such imperfect legal rights are............claims against foreign states or sovereigns, as for instance due on foreign bonds.................No action will lie for their maintenance; yet they are, for all that legal rights and legal duties, for they receive recognition from the law."

W. Panton in his Text-book of Jurisprudence, 3rd Edn. at p. 250 states as follows:--

"..............The characteristics mark of a legal right is its recognition by a legal system................ Enforceability by legal process has, therefore, sometimes been said to be the sine qua non of a legal right............There are certain rights sometimes called imperfect rights, which the law recognises but will not enforce directly."

At p. 251, he again says:

".........................in some systems Courts of justice do not control an adequate machinery for enforcement. Thus in international law there is no power in the Court to enforce its decree. Hence, ultimately, the answer to the question whether the essence of a legal right lies in its enforceability will depend on our definition of law. Dicey distinguished between constitutional conventions and laws, the test of the latter being that they will be enforced by the Courts, whereas the conventions will not. Many constitutional lawyers point out, however, that if we apply rigorously the test of enforcement in a Court of law, we are left with too narrow a view of constitutional law......................Because of the difficulties which sometimes arise in the enforcement of particular rights, it is better to define a legal right in terms of recognition and protection by the legal order. This does not unduly narrow the meaning of legal right. Thus an international Court would recognise any rights granted by international law and would protect them so far as it cold, even although there was no machinery for direct enforcement. The element of enforceability is important in questions of jurisdiction and private international law."

From the statements made by the jurists noted above, the following principles can be deduced broadly to understand what a 'legal right' is: (1) Legal right in its strict sense is one which is an assertable claim, enforceable before Courts and administrative agencies; (2) In its wider sense, a legal right has to be understood as any advantage or benefit conferred upon a person by a rule of law; (3) There are legal rights which are not enforceable, though recognised by the law; (4) There are rights recognised by the International Court, granted by international law; but not enforceable; and (5) A legal right is a capacity of asserting a secured interest rather than a claim that could be asserted in the Courts.

(22) It is, therefore, clear that the test of enforceability, though it may be a normal one, is not the only test for determining a legal right. A legal right may be one recognised by rule of law, either by Municipal law or International law, without the capacity of being enforced. A legal right may be asserted even before administrative agencies. It includes the liberty of freedom from penalty. In short, it can be said that a legal right is one which is either enforceable or recognised.

(23) Bearing these principles in mind, we have to consider whether the British passport Ex. P-40 obtained by the appellant created any legal right to bring it within the definition of 'valuable security' under Sec. 30, I.P.C. It is necessary to know the implication of a passport.

(24) A British passport is described as follows by Lord Alverstone C. J. in Reg v. Brailsford, 1905-2 KB 730, at p. 745, which is oft-quoted:

"It is a document issued in the name of the Sovereign on the responsibility of Minister of the Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individual's protection as a British subject in foreign countries." A British passport as Indian passport by its terms requests and requires all those whom it may concern to allow the bearer to pass freely without let or hindrance and to afford him every assistance and protection of which he may stand in need.

(25) Lord Jowitt L. C. in Joyce v. Director of Public Prosecutions, 1946 AC 347 at p. 369, in his illustrious speech in respect of the characteristics of a British passport, observed as follows:--

"..........................the possession of a passport by one who is not a British subject give shim rights and imposes upon the Sovereign obligations which would otherwise not be given or imposed".

At p. 370, he says:

"To me, my Lords, is appears that the Crown in issuing a passport is assuming an onerous burden, and the holder of the passport is acquiring substantial privileges. A well-known writer on International Law has said (see Oppenheim's International Law, 5th Edn., Vol. I, p. 546) that by a universally recognised customary rule of the law or nationals every state holds the right of protection over its citizens abroad. This rule thus recognised may be asserted by the holder of a passport which is for him the outward title of his rights. It is true that the measure in which the state will exercise its right lies in its discretion. But with the issue of the passport the first step is taken. Armed with that document the holder may demand from the State's representatives abroad and from the officials of foreign Government that he be treated as a British subject, and even in the territory of a hostile state may claim the intervention of the protecting power."

(26) It is, therefore, clear from this speech with which I respectfully agree that the holder of the passport acquires substantial privileges and that it gives him a capacity to assert--a rule recognised--for the outward title of his rights. He can also demand from the officials of foreign Governments that he be treated as citizen of that country which issued the passport. This right has been recognised by the law of nations and has become a rule of law.

(27) Apart from this, in this country a law has been made, taking power to require passports of persons entering India. Indian Passports Act (34) was passed in 1920. Section 30 of the said Act provides to make rules prohibiting entry into India, of any person who has not in his possession a passport issued to him. In exercise of the powers conferred under S. 30 of the said Act, the Central Government made rules. Under Rule 3, therefore, 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 thereof. Under S. 4 of the said Act, any person who contravenes the rules made in S. 3 can be arrested and under Rule 6 of the rules, such a person can be punished with imprisonment for a term which may extend to three months or with fine or with both. Under S. 5 of the Act, the Central Government is authorised by general or special order to direct the removal of any such person from India.

(28) These provisions make it abundantly clear that possession of a passport is a necessary requisite for a person leaving India.

(29) But, however, the main question involved in this case is as to the nature and the characteristics of a passport issued by a foreign country to its national to enter this country. It is, therefore, necessary to note the relevant provisions of the Indian Passport Act and the rules framed thereunder.

"Passport is defined under S. 2 of the Act, as one for the time being in force issued or renewed by the prescribed authority and satisfying the conditions prescribed relating to the class of passports to which it belongs. The conditions of a valid passport are mentioned in Rule 5 of the rules of which the main condition is that it shall have been issued or renewed by or on behalf of the Government of the country of which the person to whom it relates is a national and shall be within the period of its validity. Rule 3 of the rules which is very important for the discussion herein is as follows:--

"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:--(a) unless he is in possession of a valid passport conforming to the conditions prescribed in Rule 5,

and................"

(30) Under Rule 4, certain classes of persons are exempted from the provisions of R. 3.

(31) The Indian Passport Act with the rules framed thereunder, therefore, recognises the right of a foreigner holding a valid passport to enter into this country. When such right is recognised, there is correspondingly the duty of the authorities exercising the powers under this Act to allow a person holding a valid passport to enter this country unless otherwise such person is disqualified in the view of the authorities. Thus, in my opinion, the right which is recognised under the provisions of the Indian Passport Act is a legal right.

(32) The learned counsel for the appellant strenuously argued that a passport does not create an enforceable legal right as only a request is made to the foreign countries by the country which issues the passport to its national to permit him to travel without let or hindrance and to give him necessary protection. This, the counsel says, is by virtue of international convention and does not have the force of rule of law. The learned counsel in support of his convention and does not have the force of rule of law. The learned counsel in support of his contention relied upon a passage in the British Digest of International Law published by Stevens and Sons, Phase I, Vol. 6 at p. 9, which is as follows:--

"An alien, it has been judicially stated by the Privy Council in Musgrove v. Chung Teeong Toy, 1891 AC 272, has in English law no enforceable right to enter British territory. This principle is quite independent of any general legislation in force whereby the entry of aliens is regulated."

(33) This passage is not at all helpful, in my opinion, to support the contention of the learned counsel. The second sentence in the passage makes it clear that the principle mentioned in the first sentence does not apply in cases where a law is made regulating the entry of aliens. We have in this country a law made (Indian Passports Act, 1920) regulating the entry of persons into India and also the Foreigners Act (Act 31 of 1946), which, I will advert to presently, which provides for the exercise of powers by the Central Government in respect of the entry of foreigners into India, their presence therein and their departure therefrom. Thus, we have legislation in force in this country in respect of the entry of foreigners into India.

(34) The principle quoted in the above passage is based upon the decision in 1891 AC 272. To appreciate this principle, it is necessary to know under what circumstances the principle was laid down and whether this principle is absolute and unconditional. The facts in that case are these.

(35) The plaintiff Chum Teeong Toy, a Chinese national, was refused entry on his arrival in the port of Melbourne by a British ship. The plaintiff contended that he and the master of the vessel offered to pay 10 pounds to the Collector of Customs as provided by S. 3 of the Chinese Act of 1881. But the Collector of Customs refused to receive the said 10 pounds and to allow the plaintiff to land in Victoria. It appears, by S. 2 of the Chinese Act, 1881, if any vessel which ha don board a greater number of immigrants than in the proportion of one such immigrant to every hundred tons of the tonnage of such vessel, the owner, master, or character of such vessel should be liable to a penalty of 100 pounds for each immigrant so carried in excess of the fore going limitation...................By Section 3 of the same Act it was provided that nay immigrant arriving from parts beyond Victoria shall be permitted to land from any vessel at any port or place in Victoria, provided the master of the vessel shall pay to the Collector the sum of 10 pounds for every such immigrant. When the vessel arrived at Melbourne, she carried more than the number limited by S. 2 of the Chinese Act which was unlawful. The question, therefore, arose for decision whether the Colonial Government had the power to prevent the plaintiff, a Chinese immigrant from landing on the shores of the colony under the circumstances of the case and whether an action is maintainable by him in British Courts. In answering this question, it is observed at p. 282 thus:

"...............their Lordships would observe that the facts appearing on the record raise, quite apart from the statutes referred to, a grave question as to the plaintiff's right to maintain the action. He can only do so if he can establish that an alien has a legal right, enforceable by action, to enter British territory. No authority exists for the proposition that an alien has any such right. Circumstances may occur in which the refusal to permit an alien to land might be such an interference with international comity as would properly give rise to diplomatic remonstrance from the country of which he was a native, but it is quite another thing to assert that an alien excluded from any part of Her Majesty's dominions by the executive Government there, can maintain an action in a British Court, and raise such questions as were argued before their Lordships on the present appeal--whether the proper officer for giving or refusing access tot he country has been duly authorised by his own Colonial Government, whether the Colonial Government has received sufficient delegated authority from the Crown to exercise the authority which the Crown had a right to exercise through the Colonial Government if properly communicated to it, and whether the Crown has the right without parliamentary authority to exclude an alien. Their Lordships cannot assent to the proposition that an alien refused permission to enter British territory can, in an action in a British Court, compel the decision of such matters as these, involving delicate and difficult constitutional questions affecting the respective rights of the Crown and Parliament, and the relations of this country to her self-growing colonies. When once it is admitted that there is no absolute and unqualified right of action on behalf of an alien refused admission to British territory, their Lordships are of opinion that it would be impossible upon the facts which the demurrer admits for an alien to maintain an action."

(36) To my mind, a careful reading of this passage does not fully support the view that an alien cannot under no circumstance maintain an action in respect of refusal of entry. What their Lordships have said was that an action of the nature involving delicate questions of the constitutional rights could not be brought in an action by an alien and such right of action is not absolute and unqualified. From the observations made by their Lordships, it is clear that an action by an alien is not completely excluded.

(37) Under our Constitution, one fundamental rights provided under Arts. 14, 21, 25 and 31 are open to any person irrespective of the fact whether he is citizen of India or not. All civilized countries recognise and protect these basic human freedoms. The infringement of the rights mentioned above will undoubtedly give a cause of action even to foreigners who are not citizens of India; but the question here is whether an alien can move these Courts if entry is refused in spite of his possessing a valid passport. Under the provisions of the Foreigners Act, the Commonwealth citizen is entitled to certain civic rights and protection. Section 3-A of the Foreigners Act provides power to exempt the citizens of Commonwealth countries and other persons from the application of the Foreigners Act in certain cases.

(38) By virtue of the powers conferred under S. 3-A of the Foreigners Act, Foreigners (Exemption) Order, 1957, was passed by the Central Government exempting the United Kingdom and other countries mentioned in para 2 of the said Order from the operation of the provisions of the Foreigners Act excepting to the extent mentioned in para 3 of the Order. It is true that a discretion is left with the Central Government to allow or refuse entry of a foreigner into this country; but so far as a British subject holds a valid passport, he has got a right to demand entry into this country. He has a freedom from penalty and can claim immunity from the penalty. It confers on him a right of immunity from punishment. If a British subject knowing the Municipal law of this country, attracted by the exemptions and concessions under the provisions of the Foreigners Exemption Order, obtains a valid passport and comes to this country as a tourist without any disqualification liable for the refusal of entry, can the authorities refuse permission to such a person to enter, without valid reasons? If entry is refused by an officer arbitrarily abusing his power, cannot the British subject get redress by moving the Civil Courts or at least through the administrative agencies? In my opinion, he has certainly got a remedy by asserting his claim to enter into this country by virtue of a valid passport given to him if he has no other disqualification. Otherwise it would be unfair and unjust to refuse entry to the British subject who ahs been assured under the Municipal law of this country that he will be allowed to enter if he has a valid passport issued by that country of which he is the national and fulfils the conditions as required under the law. I am, therefore, of the opinion, the possession of a valid passport creates a right, recognised and enforceable, in my event a right recognised by rule of law.

(39) In Md. Solomen v. State, , in considering the

rights of a foreigner to move Civil Courts under the Constitution, it was observed by the Division Bench consisting of Mukharji and Laik JJ. as follows:-

"....................even if a foreigner has no locus standi to claim a fundamental right under Art. 19, he can still have locus standi to claim a legal right, if he has any, and attempt to enforce it by a writ or order or direction under Art. 226."

I respectfully agree with the view expressed in the above decision. If a foreigner has a legal right, he can enforce it.

(40) In a recent decision of the Supreme Court in Satwant Sing Sawney v. Ramratnam, W.P. No. 230 of , Subba Rao C.J., in the majority judgment, in considering whether an Indian citizen has got a fundamental right to travel abroad and whether a passport is a condition requisite for such travel emphasised the importance of a passport in the following terms:--

"...................a passport, whether in England or in the United States America, serves diverse purposes; it is a 'request for protection', it is a document of identity, it is a prima facie evidence of nationality, in modern times; it not only controls exit from the State to which one belongs but without it, with a few exceptions, it is not possible to enter another State. It has become a condition for free travel."

Of course, in this decision the legal effect of a passport was not considered and it was left open. It is clear from the observation made by the Supreme Court that the passport is a very valuable document, in that it establishes that identity of the person who holds it. It is a valuable piece of evidence to protect himself from any prosecution. It is a prima facie evidence that he is the national of the country which issued the passport in his favour.

(41) The passport Ex. P-40 in this case creates legal right as mentioned under S. 30 of the Indian penal Code, and it is, therefore, a valuable security. The conviction of the appellant under this charge by the lower Court is, therefore, correct is confirmed.

(42) Charge No. 3: The appellant has been convicted under Rule 55(2)(b) read with Rule 55(3) of the Defence of India Rules and sentenced to R.I., for three years. Rule 55(2)(b) is as follows:--

"No person shall use or have in his possession any forged or altered official document or any document so nearly resembling an official document as to be calculated to deceive." Rule 55(3) provides punishment extending up to five years or with fine or with both for contravention of any of the provisions of the rule. This rule is substantially the reproduction of Sec. 471 I.P.C. I have already found that the appellant used Ex. P-40, passport, a forged document, under Charge No. 10. The conviction under this charge is correct and confirmed.

(43) Charge No. 4: It is under Rule 55(2)(c) read with Rule 55(3) of the Defence of India Rules. Rule 55(2)(c) is as follows:--

"No person shall personate or falsely represent himself to be, or not to be a person to whom an official document relates or to whom an official document or any secret official codeword or password has been duly issued or communicated."

It is clear from the facts of this case that the appellant by producing before the authorities the passport, an official document represented himself to be one Comyn when admittedly he was not Comyn but Daniel Hailey Walcott. The appellant thereby falsely impersonated one Comyn. The appellant has also admitted in his judicial confession and his statement under Sec. 342, Crl. P.C., that the was in possession of the passport issued in the name of Comyn and he was passed out as Comyn on the production of the passport. The conviction by the lower Court under this charge is also correct and is hereby confirmed.

(44) Charge No. 5: It is a similar charge as that of charge No. 4; but this was in respect of the appellant having personated and falsely represented before the Receptionist of the Oceanic Hotel, Madras. The appellant not only produced the passport before the Receptionist of the Oceanic Hotel but he described himself as Comyn, a British subject in the register maintained in respect of foreigners in the Hotal Oceanic. It is, therefore, clear that he falsely represented himself to the Receptionist that he was Comyn when really he was not so. The learned counsel for the appellant, in respect of this charge, has contended that the alleged false representation to the Receptionist of Oceanic Hotel is an independent and different transaction from the false representation alleged to have been made by the appellant at the airport and that, therefore, the conviction has to be quashed on the ground of misjoinder of charges. I do not think there is substance in this argument. From S. 537, Crl.P.C., it is clear that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed on appeal or revision on account of misjoinder of charges. I do not think, by the inclusion of this charge any material prejudice was caused to the appellant or it has occasioned a failure of justice. The conviction under this charge is confirmed.

(45) Charge No. 6: The appellant ahs been convicted under Rule 26(2) of the Defence of India Rules and sentenced to undergo R.I. for five years. Rule 26(2) of the Defence of India Rules provides as follows:--

"If any person enters India in contravention of any order made under sub-rule (1), or of the provisions of, or of any rule or order made under, the Indian Passport Act, 1920 (34 of 1920), he shall, without prejudice to any other proceedings which may be taken against him, be punishable with imprisonment for a term which may extend to five year, or with fine, or with both."

(46) I have already found under Charge No. 10 that the appellant entered into this country with a forged passport (without a valid passport). Rule 3 of the Indian Passport Rules, 1950, prohibits any person entering into India without a valid passport. The appellant has clearly contravened Rule 3 of the Indian Passport Act 1920 which is made punishable under Rule 26(2) of the Defence of India Rules. The learned counsel for the appellant argued that the prosecution has not established mens rea on the part of the appellant which, according to him, is an essential ingredient, especially when the sentence provided under Rule 26(2) is deterrent. I am unable to accept this contention. The appellant has come with a forged passport into this country. He knew he was not in possession of a valid passport. he deliberately and consciously contravened the provisions of the Indian Passport Act. It is not necessary for the prosecution to prove the motive of the appellant in violating the provisions. The Defence of India Rules were framed during emergency when there was external danger to our country. The rules have been framed providing deterrent sentence to avoid any person coming to this country without a valid passport as it would not be possible to go into the motives of persons individually as to why they come to this country during the period of emergency. The conviction and sentence to five years' R.I. under Rule 26(2) are confirmed.

(47) Charge No. 7: The appellant has been convicted under Rule 3 read with Rule 5(v) and Rule 6 of the Indian Passport Act, 1950, for having entered this country without a valid passport. In view of the finding given under Charge No. 10, and under Charge No. 6, I find the conviction under this rule by the lower Court is correct and it is, therefore, confirmed.

(48) Charge No. 8: The appellant has been convicted under S. 420, I.P.C., and sentenced to R.I. for five years. The charge against the appellant is that he deceived P.W. 23 Sri V. Kuppuswami, Sub-Inspector of Police, Port Registration Office, Meenambakkam Airport, by suppressing his real name and falsely representing himself to be a British subject and by using a false passport Ex. P-40 and thereby fraudulently induced P.W. 23 to permit him to land at Madras by affixing a seal on the said passport and returned the said passport to him which P.W. 23 would not have done if he had no been so deceived and which act was likely to cause damage and harm to the said officer in mind and reputation. P.W. 23 stated that on 31-12-1965 when he was on duty at the Airport, the appellant arrived from Colombo by AIR Ceylon flight at 6-15 p.m. and produced the passport Ex. P-40 and the disembarkation card Ex. P-56 before him. On a comparison of the passport photo with the appellant, he found that the person was the same. He questioned the appellant about his name and intended the appellant about his name and intended address in India and the appellant replied that his name was Barry Phillips Charles Comyn and that he intended to go to Taj Hotel, Bombay. P.W. 23 believed the representation of the appellant to be true and had initialled in Ex. P-40 and had signed in Ex. P-56 in token of his check with his seal and permitted him to enter. He further stated that if he had known that the appellant was a different person and that he has used the forged passport, he would not have permitted him to land and would not have returned the passport after affixing his seal. He further stated that subsequently he had been asked by his superior officers to offer an explanation when it was found that the person permitted by him was not Comyn but the appellant and as a result thereof he had been mentally upset. The evidence in this case is clear that the appellant by representation and his conduct and by the production of a forged passport had committed the offence under S. 420, I.P.C. The conviction and sentence under this charge are also confirmed.

(49) Charge No. 9: The appellant has been convicted under S. 419, I.P.C., for having falsely impersonated Comyn and represented that he was Comyn when he was not that person both by the production of the passport and oral representation to P.W. 23. It is clear from the evidence of P.W. 23, as discussed in the previous paragraph, that the appellant has committed this offence also. The conviction and sentence under this charge are also confirmed.

(50) Charge No. 1: The appellant has been convicted under Sec. 5(1) read with S. 5(3) and S. 14 of the Foreigners Act, 1946 (Act 31 of 1946). It is alleged that the appellant having entered India during January 1962 calling himself as Daniel Hailey Walcott and having been ordinarily known as such, he entered India again through the Meenambakkam Airport on 31-12-1963 under an assumed name "Barry Philips Charles Comyn" and used that name without any licence and permission of the Government of India. In respect of this charge, the learned counsel appearing for the appellant contended that the appellant ha snot committed the offence under this charge as the prosecution has not proved the ingredients and the requirements of the provisions of the Foreigners Act with which the appellant was charged. To appreciate this contention, it is necessary to set out the relevant provisions of the Foreigners Act, 1946:--

(51) Section 5(1) of the Foreigners Act says:

"No foreigner who was in India on the date on which this Act name into force shall, while in India after that date, assume or use or purport to assume or use for any purpose any name other than that by which he was ordinarily known immediately before the said date."

Clause (2) is omitted as unnecessary. Clause (3) is as follows:--

"In relation to any foreigner who, not having been in India, on the date on which this Act came into force, thereafter enters India, sub-sections (1) and (2) shall have effect as if for any reference in those sub-sections to the date on which this Act came into force there were substituted a reference to the date on which he first enters India thereafter."

(52) Sec. 14 of the Foreigners Act is a penal provision which provides punishment for contravention of any of the provisions of this Act with imprisonment for a term which may extend to five years and fine. This Act came into force on 23-11-1946. The appellant was not admittedly residing in this country on the date the Act came into force. Hence S. 5(3) will apply to the appellant in that he entered India after the Act came into force, namely, 15-1-1962. Sec. 5(3) says that the words "to the date on which he first enters India thereafter" be substituted in Clause (1) of the same sub-section in the place of the words "referred to therein" to the date on which this Act came into force." If S. 5(1) is read with the substitution of the words as referred to in Clause (3) will read as follows:--

"No foreigner who first enters India after this Act came into force shall, while in India after that date, assume or use or purport to assume or use for any purpose any name other than that by which he was ordinarily known immediately before the said date."

(53) The learned Special Public Prosecutor Sri V. P. Raman contends that the appellant had entered into this country in 1962 as Daniel Hailey Walcott and he made subsequent visits in the same name and that his having come on 31-12-1965 with another name without the permission of the Central Government as required under Clause (5) of S. 5 would bring him within the mischief of Sec. 5, Clauses (1) and (3). I am unable to agree with this contention. The emphasis under Sec. 5(1), in my opinion, is that a foreigner while in India shall not assume or use any other name other than that by which he was ordinarily known. If a foreigner enters into this country and remains in this country, even for a short period, with a known name and he subsequently assumes or uses another name for any purpose without the permission of the Central Government, he will come within Sec. 5(3). If a foreigner visits this country with a known name and returns to his country and changes his name in his country according to the law and procedure of that country and if he comes again with that assumed name to this country and uses that assumed name, it cannot be said that he has assumed or used the name while he was in this country without the permission of the Central Government. It is not the case of the prosecution that the appellant has changed his name after he came to this country, but he came to this country with an assumed name. To my mind, the object of introducing this section appears to be that the Government should have control over all the foreigners while in India and if the names are changed, the identity of the foreigners may become difficult. The Government of India cannot have any control over any foreigner who ahs visited this country once to have his name changed in his country according to the law of that country. If a foreigner has lawfully changed his name and comes to this country, it cannot be said he is committing an offence under Sec. 5(3). It will cause hardship and inconvenience to any foreigner who comes with his name lawfully changed to expect him to get permission from the Central Government even before landing. How can any foreigner get permission from the Central Government before landing? And the permission will again depend upon the discretion of the Government which may taken in some cases considerable time. If the contention of the Special Public Prosecutor is accepted, the very moment a foreigner steps into this country in an assumed name, he will be committing the offence. I do not think that that is the intention of the Legislature. I am, therefore, of opinion that the prosecution has not proved the offence under this charge. The conviction and sentence are set aside and the appellant is acquitted of charge No. 1.

(54) In the result, the conviction of the appellant under charges Nos. 3 to 10 is confirmed.

(55) So far as the sentence is concerned, the learned counsel for the appellant strenuously pleaded for a lenient sentence. He urged that the appellant hails from a respectable family, that he had lost all his fortunes and that the prosecution has not shown that the appellant has come to this country with a hostile attitude or for a nefarious purpose. I am unable to accede to the request of the learned counsel. The appellant wanted to gain entry into this country with a forged passport while the country was at war and the state of emergency prevailed. The appellant had come on prior occasions to this country and got into trouble during those visits. Even during prior visits, it appears he committed offences and nonbailable warrants were pending against him. The appellant should have known that if he were to go again to this country while nonbailable warrants were pending and that he was wanted in those offences, he would be apprehended. To avoid detection, he had come with a British passport as a British subject under an assumed name. The fact that the appellant had come to this country in spite of the difficulties and risk that he might have to face, indicates that he had not come for any legitimate purpose. In view of these circumstances, I do not think that it will be proper to reduce the sentence imposed on him. The sentences passed under charges Nos. 3 to 10 are also confirmed.

(56) The appeal is dismissed with the above modifications.

(57) C. A. 815 of 1966: The appellant Jean Claude Donze was charged under 10 counts of which he was convicted on counts Nos. 1 and 3 to 10 and was sentenced to various term of imprisonment, the maximum being R.I. for five years, the sentences to run concurrently by the Sessions Judge, Madras. The facts of the prosecution case are briefly these:

(58) The appellant, Jean Claude Donze has in alias name Pierre Carraud. He is a French national. On 10-11-1961, he landed at Santa Cruz Aerodrome. Bombay from Rome under the name of Pierre Carraud with a French passport. He left Bombay for Tokyo on 13-11-1961. In the middle of the year 1962, he came back to India under the same name and stayed in Ashoka Hotel, New Delhi for a day and left the hotel abruptly with the key of the room occupied by him and did not return to the hotel subsequently.

(59) On 21-6-1962, the appellant was found again near Mandapam Camp attempting to leave for Ceylon by a country craft. He was arrested on suspicion. The appellant had a British passport, in the name of E.V. Conway, a British national. He was also found to be in possession of a key of a room No. 207 Ashoka Hotel, New Delhi. On being questioned by the officer who arrested him, it appears that the appellant first told him that he was E. V. Conway and subsequently stated that he was Pierre Carraud and finally said that he was Jean Claude Donze.

(60) Later, the appellant was prosecuted along with another in a case of smuggling and convicted and his finger print impressions were taken. He was detained in the Bombay District prisons from 15-2-1963 to 28-2-1963. He had left the country again. On 29-6-1963 the appellant returned to Delhi from Tel Aviv under the name of Donze John. On 15-9-1963, the appellant left Delhi for Beirut under the name Donze Jean Claude, a French national. He returned to New Delhi on 29-11-1963 under name Donze Jean. He left Bombay for Beirut again on 21-12-1963 under the name Jean Claude Donze. He arrived at Palam Airport from Beirut on 29-3-1964 under the name Jean Donze and left for Beirut on 3-4-1964. These facts are admitted.

(61) It appears subsequently he obtained a British passport in the name of Stephen Thomas Lamb, a British national and came to India. A case was registered against the appellant for having used a forged passport and impersonated a British national and it was pending. The appellant was wanted in that case.

(62) While matters stood thus, the appellant arrived at Meenambakkam Airport, Madras on 31-12-1963 by an Air Ceylon flight and produced the passport Ex. P-18, and the disembarkation card Ex. P-19 to the Security Officer, P. W. 22, at Meenambakkam Airport. The passport and the disembarkation card stood in the name of S. T. Lamb, a British national. P. W. 22 Sri Sankaran, the security officer on being satisfied that the photograph attached to the passport was that of the appellant who produced Exs. P-18 and P-19 he was allowed to go.

(63) The appellant then went to Hotel Oceanic along with another foreigner, the appellant in C.A. 810 of 1966 and registered his name in the arrival register as S.T. Lamb, British national, Ovington Gardens, London. The appellant left the Oceanic Hotel on the next day. He stayed in West End Hotel, Bombay on 22-1-1966 he was arrested on suspicion. He produced a British passport Ex. P-18. His finger prints slip of Pierre Carraud taken on conviction earlier in 1962. The finger prints were found to be identical. The prosecution has let in ample evidence to show that the appellant is Jean Claude Donze alias Pierre Carraud and with that name, he had come to India on prior occasions. The appellant does not dispute that he is Jean Claude Donze.

(64) The case for the prosecution is that he used a forged British passport fraudulently and impersonated Stephen Thomas Lamb and committed various offences as charged. The subject matter of all these offences is mainly the passport Ex. P-18.

(65) Thus there cannot be any doubt that Ex. P-18 is a forged passport and equally there is not doubt that the appellant used the forged is no doubt that the appellant used the forged passport fraudulently in order to gain entry into this country. P. W. 13, Mr. Charles Edward O'Hanlon, a British Constable attached to the New Scotland Yard stated that he verified the name and address given in Ex. P-18 the passport namely, Stephen Thomas Lamb born in Finchley, London, on 29-10-1925 at 42-A Grove End Garden, N. W. 8 London and found that there was no No. 42-A in the Grove End Garden. He further stated that none of the inmates of the flats in No. 42 could recognise the photo in Ex. P-18 and that no person by name Lamb lived there at any time. He found in the birth and death registers the entry relating to one Stephen Thomas Lamb that he was born on 29-10-1925 and died when he was aged about 15 years in the year 1940 as a result of enemy bombing. It is, therefore, clear from the evidence of P. W. 13, that the name of a dead man has been obviously used for the purpose of getting the passport Ex. P-18.

(66) The appellant when questioned under Section 342 Crl. P.C., admitted that he was known as Jean Claude Donze and Pierre Carraud. He stated that he arrived at Meenambakkam airport and gave the passport to the air hostess which according to him must have been give by her to P. W. 22. There is no reason to disbelieve the evidence of P. W. 22 who stated that the appellant produced the passport Ex. P.18 and represented that he was Stephen Thomas Lamb and believed that the appellant was Stephen Thomas Lamb as borne by Ex. P-18 and passed out the appellant. It is now, therefore, necessary to consider with the proved facts whether the convictions under the various charges could be sustained against the appellant.

(67) Charge No. 1: The appellant has been convicted for having assumed or used a different name, namely, Stephen Thomas Lamb other than the known name under which he has come to this country on prior occasions, namely Jean Claude Donze or Pierre Carraud. I have discussed in detail under charge No. 1 in C. A. 810 of 1966 in regard to the implication of S. 5(1) read with Sec. 5(3) of the Foreigners Act. I have held that a foreigner who changes his name other than the name known and recognised while he is in India, commits the offence contemplated under Sec. 5. It does not apply to a foreigner who changes his name in his county and obtains a passport in that name lawfully and comes to this country with a valid passport. It is not the case of the prosecution that the appellant has changed his name after he came to this country or while he stayed here. The conviction under this charge cannot, therefore, be sustained. The conviction and sentence are set aside under this charge.

(68) I propose to deal with charge No. 10 which is the main charge in respect of using forged passport fraudulently (a valuable security) I have discussed under charge No. 10 in detail in C. A. 810 of 1966 and found that a passport creates a legal right, and, therefore, a valuable security within the meaning of Section 30 I. P. C. Page 2 of Ex. P-18 which is a part of the passport is undoubtedly false, and, therefore, it is a false document. The appellant does not say that it was not false. The signature of Stephen Thomas Lamb found in page 2 is forged by some one though not the appellant as the said Stephen was dead at the time of the issue of the passport. Th evidence of P. W. 22 is very clear that the appellant landed at Meenambakkam airport and produced Ex. P-18, which is a forged document. P. W. 22 believed that it was genuine on the representation made by the appellant and allowed him to go. This charge has been clearly proved against the appellant. The conviction under this charge is confirmed.

(69) The convictions under charges Nos. 3, 6 and 7 are similar to those of charges Nos. 3 and 6 and 7 in C. A. 810 of 1966. Charge No. 3 is under Rule 55(2)(b) read with Rule 55(3) of the Defence of India Rules. The possession or use of a forged document is prohibited under the said rule. Charge No. 6 is in respect of Rule 26(2) of the Defence of India Rules which provides that if any person contravenes any rule or order made under the Indian Passport Act shall be punished. Charge No. 7 is in respect of R. 3 read with Rule 5(v) and R. 6 of the Indian Passport Rules 1950, which provides punishment for any person entering this country without a valid passport. As I have found under charge No. 10, the appellant used a forged passport and charges Nos. 3, 6 and 7 deal with substantially what is dealt with under charge No. 10. I find the conviction under these charges are correct and they are confirmed.

(70) Charges Nos. 4, 5, 8 and 9 are similar to those charges Nos. 4, 5, 8 and 9 in C.A. 810 of 1966. Charge No. 4 is in respect of R. 55(2)(c) read with Rule 55(3) of the Defence of India Rules. It provides that no person shall personate or falsely represent himself to be a person to whom an official document relates. In this case, the passport related to Stephen Thomas Lamb. The appellant Jean Claude Donze has falsely impersonated the said Stephen Thomas Lamb mentioned in the passport and gained entry. Charge No. 5 is in respect of the same offence; but it relates to impersonation by false representation made to the receptionist of the Oceanic Hotel, Madras. The case of the Receptionist of Oceanic Hotel describing himself as Stephen Thomas Lamb and entered as such in the arrival register. These two charges are clearly made out and the convictions are confirmed. Charge No. 8 is that the appellant has deceived P. W. 22 Sankaran, the Security Officer, Meenambakkam airport, by suppressing his real name and falsely representing himself to be a British subject by using a false passport Ex. P-18, and thereby fraudulently induced P. W. 22 to permit him to land at Madras by affixing a seal on the said passport which P. W. 22 would not have done if he had not been so deceived. It is clear from the evidence of P. W. 22, that the appellant made a false representation by not only producing the passport but also making oral representation to him that he was Stephen Thomas Lamb and thereby induced him to permit him to land at Madras by affixing his seal. This representation was made fraudulently with a view to gain entry. The conviction under Section 410 I. P. C., is correct and is, therefore, confirmed. Charge No. 9 is under Section 419 I. P. C. In view of the finding given by me under Charge No. 8, I confirm the convition under charge No. 9 also.

(71) In the result, the convictions of the appellant under charges Nos. 3 to 10 are confirmed. He was acquitted under charge No. 1.

(72) So far as the sentence is concerned, I am not impressed with the request made by learned counsel for the appellant for taking a lenient view. I have given reasons in C. A. 810 of 1966 as to why I am unable to reduce the sentence. The sentences passed under charges Nos. 3 to 10 are also confirmed.

(73) The appeal is dismissed with the above modifications.

(74) Appeals dismissed.


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