Mohammad Shafi v. State

Agarwala, J.:— This is an application in revision by Mohammad Shafi who has been convicted under section 4 read with section 3 of Ordinance 17 of 1948 — Influx from West Pakistan (Control) Ordinance, 1948.

Mohammad Shaft who alleges himself to be a resident of Kandala in the district of Muzaffarnagar seems to have gone to West Pakistan and while there he intended to come back to India. He was granted a temporary permit on the 2nd of August, 1948. The permit described the duration of the visit as one month and was to commence from the 2nd of August, 1948. The date of expiry of the permit was not noted. It may be assumed for the purpose of this case that the permit was to expire on the 2nd of September, 1948. After having come to India he overstayed beyond the 2nd of September, 1948 and did not go back to Pakistan. He was arrested by the police on the 1st of October, 1948, prosecuted under section 4 of Ordinance 17 of 1948 and convicted by the Magistrate and sentenced to six months' rigorous imprisonment. The conviction was affirmed in appeal by the Sessions Judge Muzaffarnagar.

The influx from West Pakishan (Control) Ordinance 17 of 1948, which came into force on the 19th of July, 1948, did not itself provide a penalty for overstaying beyond the limits mentioned in the permit. Section 3 merely prohibited the entry of a person into India from any place in West Pakistan unless he was in possession of a permit, etc. Section 4 provided for a penalty for any person who contravened the provisions of section 3 or of any rule made thereunder. The first rules framed under this Ordinance were published in the Gazette dated the 7th August, 1948. In these rules, also there was no rule which prohibited overstay in India after the expiry of the term of the permit. This omission was remedied in the rules which were made on the 7th of September, 1948. These rules were called “Permit System Rules” of 1948. Rule 12 of these Rules provided that no person holding a temporary permit would stay in India after the date of expiry of such permit. But, as already stated, this rule was not in existence before the 7th of September. In the case of the applicant the term of the permit expired on the 2nd of September, 1948. He did not, therefore, commit any offence when he overstayed after the 2nd of September, at any rate, up to the 6th of September, 1948, before rule 12 was made. The question, therefore, is whether he can be held guilty of an offence under section 4 of Ordinance 17 of 1948 because of the coming into force of rule 12 on the 7th of September, 1948.

It was urged by the learned Assistant Government. Advocate that as soon as rule 12 came into force the overstay of the applicant became illegal. We do not think that this contention is correct. Rule 12 speaks of the date of the expiry of the permit. Ordinarily an Act operates only on cases and facts which come into existence after the statute is passed—vide Bourke v. Nutt. This is on the general principle that a statute is not retrospective in operation and does not affect vested rights. When the rule speaks of the expiry of a temporary permit, it is intended that the expiry should occur after the rule had come into force. In the present case, as the expiry had occurred before the rule came into force the rule has no application to the case. We, therefore, hold that the applicant was not guilty of any offence.

We, therefore, allow this application, set aside the conviction of the applicant and quash the sentence passed against him. He is on bail. He need not surrender.

Revision allowed.