Desai, J. - (1.) This is an application in revision by one Mohammad Shafiq from judgments of the Courts below convicting him under Section 5 of the Influx from Pakistan (Control) Act (No. XXIII), 1949. The trial Court sentenced him to rigorous imprisonment for 9 months and the appellate Court reduced the sentence to 6 months. We may point out that this reduction was a misuse of the power of the appellate Court to interfere with sentences. The disparity between the sentence inflicted by the trial Court and that inflicted by the appellate Court was not so great that the appellate Court would be justified in interfering with the sentence, which was at the discretion of the trial Court and which could not be interfered with unless the appellate Court held that the discretion had been exercised arbitrarily or erroneously.
(2.) There is no controversy about the facts. Sometime in June 1948, the applicant went from India to West Pakistan. On 19-7-1948 the Influx from the West Pakistan (Control) Ordinance (No. XVII), 1948 (to be referred as Ordinance No. XVII was enacted by the Central Government. Section 3 of it prohibited any person from entering into India from West Pakistan without being in possession of a permit and authorized the Central Government by a notification published in the official gazette to make rules prescribing the authorities by whom permits may be issued, the conditions to be satisfied by the applicants for such permits, the forms and classes of such permits and for any other matters ancillary or incidental to the carrying out of the purpose of the Ordinance. Section 4 of it was to the effect that, "any person who contravenes the provisions of Section 3, or of any rule made thereunder, shall be punishable with imprisonment which may extend to one year, or with fine which may extend to one thousand rupees, or with both such imprisonment and fine". On 23-7-1948 the applicant was granted a permit, styled as "temporary permit" by the High Commissioner for India in Pakistan authorizing him to stay in India from 25-7-1948 to 25-9-1948. There are certain columns in the permit which were filled in by the applicant himself. In the column of 'duration of visit' he had put down "2 months". The operative portion of the permit is to the effect that the applicant was allowed to stay in India from 25-7-1948 to 25-9-1948. On 29-7-1948 the Central Government made what is known as 'Permit System Rules' and published them in the Gazette of India on 7-8-1948. The rules did not purport to have been made under any authority; there was no reference in them to Ordinance No. XVII. Rule 4 laid down that from the date the permit system was brought into force, no person, who was not in possession of a valid permit, would be allowed to enter into the Indian Dominion. Rule 11 provided that any person wishing to obtain a permit should state the station he wishes to visit in India and his address in India and should fill up the permit accordingly. There was no rule regarding temporary permits or the duration or availability of permits or return of a permit-holder on expiry of the period of the permit to Pakistan. These rules were cancelled on 6-9-1948. On 7-9-1948 fresh rules were made under Section 3 of Ordinance No. XVII in place of the rules made on 29-7-1948 and cancelled on 6-9-1048. They were published in the Gazette of India on 14-9-1948. Rule 3 provided for four kinds of permits including a permit for temporary visit, and a permit for resettlement or permanent return. Rule 12 was to the effect that, "no person holding a temporary permit shall stay in India after date of the expiry of such permit. There was also a provision for extension of the period of a temporary permit. On 25-9-1948 the period of 2 months for which the applicant was allowed to enter into India expired but he continued to stay on. On 10-11-48 the Influx from Pakistan (Control) Ordinance (No. XXXIV), 1948 (to be referred to as Ordinance (No XXXIV) was made; Section 2 of it defined 'permit' to mean a permit issued in accordance with the rules made under the Ordinance. Section 3 prohibited every person from entering into India from any place in Pakistan without being in possession of a permit. Section 4 authorized the Central Government to make rules prescribing the authorities by which, and the conditions subject to which, permits may be issued, the conditions to be satisfied by the applicants for such permits, the forms and classes of such permits and generally for any other matter ancillary or incidental to the carrying out of the purpose of the Ordinance. Section 5 was to the effect that, "Whoever enters India, in contravention of the provisions of Section 3, or having entered India contravenes the provision of any rule made under Section 4, or commits a breach of any of the conditions of his permit, shall be punishable with imprisonment......" Section 9 repealed Ordinance No. XVII and laid down that: "notwithstanding such repeal, any rule made, action taken, or thing done in the exercise of any power conferred by the Influx from West Pakistan (Control) Ordinance, 1948, shall for all purposes, be deemed to have been made, taken, or done in the exercise of the powers conferred by this Ordinance, as if this Ordinance had commenced on the day such order was made, or such action was taken, or such thing was done." On 23-4-1949 the Influx from Pakistan (Control) Act (No. XXIII) 1949 was enacted. It provided for five classes of permit including a permit for temporary visit, prohibited entry into India from Pakistan without being in possession of a permit, authorized the Central Government to make rules on the same lines as Ordinance No. XXXIV, punished entry into India without a permit or in contravention of the provision of any rule made under the authority of the Act or a breach of any of the conditions of the permit and repealed Ordinance No. XXXIV and contained a saving clause like the one contained in Ordinance No. XXXIV.
(3.) The applicant admitted that he had obtained a temporary permit for return to India, that on 14-8-1948 he applied to the High Commissioner for India in Pakistan for permission to reside permanently in India and that he stayed on in India even after the expiry of the temporary permit. The learned Magistrate charged him with committing an offence punishable under Section 4 of Ordinance XVII read with Rule 12 of the Permit System Rules of 1948, Section 9(2) of Ordinance No. XXXIV and Section 9(2) of Act No. XXIII of 1949 by not returning to Pakistan on or before 26-9-1948. He convicted him under Section 5 of the Act of 1949. The appeal of the applicant was dismissed by the Sessions Judge.;