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1978 Supreme(Sikk) 10
SIKKIM HIGH COURT
A. M. BHATTACHARJEE, J.
SONAM TSHERING
VERSUS
STATE OF SIKKIM
Criminal Appeal No. 3 of 1978,
Decided On : 6 -10 -1978
Rules made under an enactment are deemed to be part of the enactment and automatically extended along with the enactment.
Headnote:
REGISTRATION OF FOREIGNERS ACT, 1939 - REGISTRATION OF FOREIGNERS RULES, 1939 - INDIAN PASSPORT (ENTRY INTO INDIA) ACT, 1920 - INDIAN PASSPORT RULES, 1950 - EXTENSION TO SIKKIM - VALIDITY - SCOPE - INTERPRETATION - OFFENCES AND PENALTIES.
Fact of the Case:
The accused-appellant, a foreigner from Tibet, was convicted on his own plea of guilty to charges under the Registration of Foreigners Act, 1939, and the Indian Passport Rules, 1950, for entering Indian territory without reporting his presence and without a passport, respectively. He was sentenced to one year of rigorous imprisonment for the first charge and three months of rigorous imprisonment for the second charge, to run concurrently.
Finding of the Court:
1. The Registration of Foreigners Act, 1939, and the Indian Passport (Entry into India) Act, 1920, were validly extended to Sikkim under Article 371F (n) of the Constitution of India, even though the corresponding Sikkim laws were not repealed. 2. The Registration of Foreigners Rules, 1939, and the Indian Passport Rules, 1950, are deemed to be part of the respective enactments and automatically extended along with the enactments. 3. The accused's plea of guilty to the charge under Section 5 of the Registration of Foreigners Act is not valid because there was no Registration Officer appointed in Sikkim to whom he could report his presence. 4. The accused's plea of guilty to the charge under Rule 6 of the Indian Passport Rules is valid, and his conviction and sentence are upheld.
Issues: 1. Whether the Registration of Foreigners Act, 1939, and the Indian Passport (Entry into India) Act, 1920, were validly extended to Sikkim without repealing the corresponding Sikkim laws. 2. Whether the Registration of Foreigners Rules, 1939, and the Indian Passport Rules, 1950, automatically extended along with the enactments. 3. Whether the accused's plea of guilty to the charge under Section 5 of the Registration of Foreigners Act is valid. 4. Whether the accused's plea of guilty to the charge under Rule 6 of the Indian Passport Rules is valid.
Ratio Decidendi: 1. The provisions of Article 371F (n) of the Constitution of India allow for the extension of enactments to Sikkim without repealing the corresponding Sikkim laws. 2. Rules made under an enactment are deemed to be part of the enactment and automatically extended along with the enactment, as per the observations of the Supreme Court in T. B. Ibrahim v. RTA, Tanjore and State of Uttar Pradesh v. Babu Ram. 3. The accused's plea of guilty to the charge under Section 5 of the Registration of Foreigners Act is not valid because there was no Registration Officer appointed in Sikkim to whom he could report his presence, as required by Rule 4-A of the Registration of Foreigners Rules, 1939. 4. The accused's plea of guilty to the charge under Rule 6 of the Indian Passport Rules is valid because the Indian Passport Rules, 1950, are deemed to be part of the Indian Passport (Entry into India) Act, 1920, and automatically extended along with the enactment.
Final Decision: The appeal is partly allowed. The conviction and sentence under Section 5 of the Registration of Foreigners Act, 1939, are set aside. The conviction and sentence under Rule 6 of the Indian Passport Rules are confirmed. The order of removal or deportation is set aside.
1. The accused-appellant has been convicted on his own plea of guilty to a charge under S. 5 of the Registration of Foreigners Act, 1939, on the allegation that he entered Indian territory from Tibet and failed to report his presence to the prescribed authority and he has been sentenced to undergo rigorous imprisonment for a period of one year. He has also been convicted on a similar plea to another charge under the provisions of the Indian Passport Rules, 1950, framed under S. 3 of the Indian Passport (Entry into India) Act, 1920, on the allegation that he entered Indian territory from Tibet without a passport and he has been sentenced to undergo rigorous imprisonment for three months and both the sentences are to run concurrently.
2. The Registration of Foreigners Act, 1939, has been extended to Sikkim under the provisions of cl. (n) of Article 371F of the Constitution of India on the 16th of May, 1975, and has been enforced on the 1st Feb., 1976. But the corresponding Sikkim Law, being the Registration of Foreigners Rules of 1960, has not been at any time expressly repealed either before or simultaneously with or after the extension and enforcement of the Central Registration of Foreigners Act, 1939. The question as to whether the extension and enforce-ment of any enactment under Art. 371F (n) of the Constitution, without repealing the corresponding Sikkim Law on the subject would be valid and effective, has been considered by me in details in Raj Kumar Rai v. State (Criminal Appeal No. 2 of 1978, decided on 15-9-1978) and I have held in that case that the extension and enforcement of the Indian Arms Act, 1959 to and in Sikkim under the provisions of Article 371F (n) of the Constitution without expressly repealing the corresponding Sikkim Law, being the Sikkim Arms Rules, 1952, has been valid and effective and that on and as a result of such extension and enforcement, the corresponding Sikkim Law stood overborne, overthrown and impliedly repealed. In this case also I would, therefore, hold that the Central Registration of Foreigners Act, 1939 has been validly extended to and enforced in Sikkim even though the corresponding Sikkim Law, being the Sikkim Registration of Foreigners Rules of 1960, has not been repealed at any time before such extension and enforcement and that on and as a result of such extension and enforcement, the Sikkim Registration of Foreigners Rules of 1960 have stood, overborne, overthrown and impliedly repealed.
3. This question has not arisen in respect of extension and enforcement of the Indian Passport (Entry into India) Act, 1920 to and in Sikkim, which has been extended on 16th May,1975 and enforced on 20th Sept. 1976, as there does not appear to be any corresponding law in Sikkim on this subject relating to entry into Sikkim without passport or other similar document. But even if there was any such law, such law would also be deemed to have been overborne, overthrown and impliedly repealed by the extension and enforcement of the Indian Passport (Entry into India) Act, 1920 and the said Act is to be deemed to be validly extended and enforced without express repealment of the corresponding Sikkim Law.
4. It should, however, be noted that though under the provisions of the Registration of Foreigners Act, 1939, the offence is punishable under S. 5 of the Act, yet the offence consists solely of contravention of or non-compliance with the provisions of the rules made thereunder, being the Registration of Foreigners Rules, 1939. The Indian Passport (Entry into India) Act, 1920 also does not in the body of the Act create any offence or even provide for its punishment but it is the rules made thereunder, being the Indian Passport Rules, 1950, which create the offence as well as provide for the punishment. The maintainability of any criminal prosecution under the Registration of Foreigners Act, 1939 or under the Indian Passport (Entry into India) Act, 1920 will, therefore, depend entirely on the resp
