Sreenivasam v. Sittampalam
1953Present: H. A. de Silva J.
V. S. SREENIVASAM, Appellant, and S. SITTAMPALAM(Authorised Officer, Department of Immigration and Emigration),
S. C. 557—M. C. Colombo, 24,649/B
immigrants and Emigrants Act, No. 20 of 1948-—Control of entry into Ceylon of personsother than citizens of Ceylon—Residence permit—Solder's right to re-enter andremain in Ceylon beyond prescribed- period—Sections 2, 8, 10, 11, 14, 15, 3Q,SI, 45 (1) (a)—Citizenship Act, No. 18 of 1948, s. 2.
An Indian national, who was a British subject resident in Ceylon for lessthan five years, prior to the date on which the Immigrants and Emigrants Actcame into operation and who with a valid passport has obtained a temporaryresidence permit under section 14 (1) (6) of that Act, contravenes the provisionsof section 15 (b) if, after visiting India thereafter, he re-enters and remainsin Ceylon beyond the period for which he is authorised to remain in Ceylonby the permit, and thereby commits an offence punishable under section 45(1) («)•
Obiter : Even if such person had been in Ceylon for more than five yearspreceding the date on which the Act came into operation, Part 111, section 8,of the Act would be equally applicable to him.
A PPEAL from a judgment of the Magistrate’s Court, Colombo.
N. K. Choksy, Q.C., with C. Shanmuganayagam and K. Rajaratnam,’for the ac.cused appellant. .
Boyd Jayasuriya, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
TT- A. DE SILVA J.—Sreenioaaam v. SitlampaXam
January 23, 1953. H. A. de Silva J.—
The accused-appellant in this case appeals against a conviction enteredagainst him in the Magistrate’s Court of Colombo..
The point that arises for consideration in this case is the constructionof certain sections of Immigrants and Emigrants Act, No. 20 of 1948.
The charge against the accused runs thus :—
“ That he being a person to whom Part HI of the Immigrants andEmigrants Act, No. 20 of 1948, applies, being the holder of a TemporaryResidence Permit No. CX 4631 issued by the Controller of Immi-gration and Emigration, Colombo, on the 27th.day of October, 1950,the said Temporary Residence Permit being valid up to the 27th dayof October, 1951, did in contravention of the provisions of section15 (b) of the said Act remain in Ceylon after the expiry of the period ofwhich he was authorised to remain in Ceylon by the said TemporaryResidence Permit and did thereby commit an offence punishableunder section 45 (1) (a) of the said Act.
After trial the learned Magistrate found him guilty and imposed uponhim a fine of Rs. 30.•
The following were the admissions made :—
The accused is a British subject and an Indian national.
He was in Ceylon prior to the 1st November, 1949.
The Act came into operation on the 1st of November, 1949.
The accused took up the position at the trial that he has been in Ceylonsince June, 1943, but the learned Magistrate after considering the evidenceled for the. prosecution and for the defence found as a fact that theaccused was not in Ceylon prior to 1946 or 1947. The accused’s counselwho argued the appeal before me did not canvass that finding of fact.After the perusal of the evidence led in this case I see no reason to dissentfrom that finding. The accused admittedly obtained a TemporaryResidence Permit No. CX 4631 for a period of one year commencingfrom the 27th October, 1950. The date of expiry -of this TemporaryResidence Permit is 27th October, 1951. This Temporary ResidencePermit has been endorsed by the Controller of Immigration and Emi-gration on Pass No. 51083 dated 20th September, 1950,—P2 issued bythe High Commissioner for India in Ceylon. This Pass expires on the19th September, 1954. I may mention that this Pass has been issuedby the High Commissioner for India at Colombo. The following endorse-ments appear on this Pass : “ Arrived from Ceylon 28th October, 1950.Signed illegibly for Protector, Emigration, Dhanushkodi ”. Amongstother endorsements there are the following : “ Endorsement Permittedto land, 22nd November, 1950. Signed illegibly. Authorised Officer,Colombo Port, Ceylon ”.“ Endorsement Permitted to land, 15th
August, 1951. Signed illegibly. Authorised Officer, Colombo Port,Ceylon ”.
H. A.. DE SXX.VA J.—^Sreervivusarti it. S-iitatupul<un
This Pass issued on behalf of the Government of India by the HighCommissioner for India in Colombo is made valid only for direct travelbetween India and Ceylon. The Pass also says that the possession ofthis Pass does not exempt the holder from compliance with the Immi-gration regulations of Ceylon. It is admitted that the accused leftCeylon on the 28th October, 1950, and returned on the 22nd November,.1950, to Ceylon. He again left Ceylon on the 6th July, 1951, and cameback to Ceylon on the 15th August, 1951. The accused thereafter "continued to remain in Ceylon ; thus., according to the prosecution, theaccused has contravened the conditions of the Temporary ResidencePermit issued to him which expired on the 27th of October, 1951.
The point that has been raised by learned Counsel for the accused isthat the Immigrants and-, Emigrants Act has no application to thosenon-nationals who were in Ceylon prior to the date on which the Act came-into operation, namely, 1st November, 1949. The fact that the accused-appellant elected to obtain a Temporary Residence Permit does notdebar him from raising the point that is taken now. It was not obligatoryon his part to have applied and obtained a Temporary Residence Permit..He has not forfeited his rights under the Act to remain in Ceylon by reasonof his having obtained the Temporary Residence Permit. It is alsoargued that when this Act came into force there were a large number ofpersons who were not citizens of Ceylon, and that their right to remainin Ceylon was by no means affected by the Act. I may also at this stagerefer to an observation made by learned Counsel for the accused. Hestated that in the charge framed against the accused the word “ enter ”is not mentioned but he (counsel) did not want to take advantage of theomission of the word “ enter ” in the charge with a view to gettingan acquittal.
Learned Counsel for the accused conceded that his client had to obtain- a valid Passport from the High Commissioner for India in Ceylon for himto travel between India and Ceylon. He contends that Part ITT of theAct has no application to the accused who was admittedly in Ceylonprior to the 1st of November, 1949, the date on which the Act came into-operation. Part III of the Act relates to the control of entry into Ceylonof persons other than citizens of Ceylon. Section 8 which falls within*Part III runs thus :—“ This part shall apply to every person seekingentry into or entering Ceylon unless—(a) he is a citizen of Ceylon ; or(b) by virtue of any Order under Part I for the time being in force, he isexempted from the provisions of this Part
The argument of learned Counsel for the accused is that Part HI ofthe Act has no application to a person who is seeking re-entry into Ceylonor re-entering Ceylon. His argument is that the accused was not coiningto Ceylon for the first time after this Act came into operation, but hehaving gone back to India was coming back to Ceylon. It is true that' armed with the Pass issued to him by the High Commissioner for Indiain Ceylon which was valid for a period of five years for travel betweenIndia and Ceylon, the accused went back to his home country armedwith a Temporary Residence Permit to which I have already referred.
JT. A. DE SILVA J.—Sreenii’asam v. Sitlnmpalam
One of the conditions upon which the High Commissioner for Indiaissued this Pass to him was that he (accused) had to comply with theImmigration regulations of Ceylon. The learned Crown Counsel whoappeared on behalf of the learned Attorney-General has argued that theaccused was a person to whom Part III of the Act applied and that he,by reason of his remaining in Ceylon after the 27th October, 1951, hasviolated the provisions of section 15 of the Act. Section 15 runs thus:.—“ No person fto whom this Part applies and [who enters Ceylon (a) ifhe is not the holder of a visa, permanent Passport or Temporary ResidencePermit, remain in Ceylon after the expiry of the period for which he isauthorised to remain in Ceylon byj the (endorsement granted to him atthe time of his entry ; or (6) if he is the holder of any such visa or permit,remain in Ceylon after the expiry of the period for which he is authorisedto remain in Ceylon by that visa or permit, as the case may be 53. Section50 (1) of Act No. 20 of 1948 states that a citizen of Ceylon “ means acitizen of Ceylon under any law for the time being in force ”.
The Citizenship Act, No. 18 of 1948, makes provision for citizenshipof Ceylon and for matters connected therewith. This Act came intooperation on the 15th November, 1948, by proclamation in GovernmentGazette No. 9,919 of the 15th November, 1948. This was admitted bylearned Counsel for the accused. Section 2(1) lays down that with effectfrom the appointed date, there shall be a status to be known as “ thestatus of a citizen of Ceylon ”. Section 2 (2) reads thus:—“ a person shallbe or become entitled to the status of a citizen of Ceylon in one of thefollowing ways only :—(a) by right of descent as provided by this Act ;
(b) by virtue of registration as provided by this Act or by any other Actauthorizing the grant of such status by registration in any special case ofa specified description ”.
It will be seen that when the Immigrants and Emigrants Act came intoforce on the 1st November, 1949, there were three categories of personsinhabiting Ceylon, namely, (1) citizens of Ceylon by descent or registra-tion, (2) British subjects who were not citizens of Ceylon, and (3) personswho were neither British subjects nor citizens of Ceylon. LearnedCrown Counsel states that the argument of learned Counsel for theaccused is that this Act (Immigrants and Emigrants Act) does not applyto any of these three categories of people who were resident in Ceylonon the 1st November, 1949. He also argues that the only persons whohave an absolute right to remain in Ceylon are the citizens of Ceylon.He refers to Part 6 of the Act which deals with deportation from Ceylonof persons other than citizens of Ceylon. Section 30 which falls withinPart 6 states thus :— “ This Part shall apply to every person unless—
(а)he is a citizen of Ceylon ; or
(б)by virtue of any Order under Part 1 for the time bieng in force,*
he is exempted from the provisions of this Part. ”. Vide section 31.
He further argues that when this Act was passed those persons whowere not citizens of Ceylon were permitted to remain in Ceylon. Thereis no provision in the Act to deport all persons who were not Ceylonnationals on the appointed date, namely, 1st November,i 1949.
IT. A. DE SILVA .T.—Sreenivasam v. Siltampalarh-
The question for determination is whether or not Part III of the Actapplied to those persons leaving Ceylon after the 1st November,
The accused was admittedly a person, who is a non-national of Ceylon,and who was in Ceylon on 1st November, 1949. He obtained aPassport from the representative of his Government in Ceylon—a Pass-port to travel between India and Ceylon. His was a valid Passport.Section 50 defines a valid Passport in relation to any person who is not acitizen of Ceylon as one issued to him by or on behalf of any Governmentrecognised by the Government of Ceylon. The accused armed with thisvalid Passport obtained a Temporary Residence Permit from the Con-troller of Immigration and Emigration. The Immigrants and EmigrantsAct No. 20 of 1948 thus provides “ an Act to make provision for controllingthe entry into Ceylon of persons other than citizens of Ceylon, for regu-lating the departure from Ceylon of citizens and persons other thancitizens of Ceylon, for removing from Ceylon undesirable persons whoare not citizens of Ceylon, and for other matters incidental to or connectedwith the matters aforesaid ”. Section 2 exempts various classes of personsfrom the operation of Parts 3, 4, 5, 6, and 7 of this Act to such extent orsubject to such conditions or restrictions as may be specified by Order ofthe Minister. Section 2 (1) also provides that an order under this sub-section may be either a special order in respect of .any person or groupof persons, or a general order applicable to any class or description ofpersons, being in either case persons referred to in this sub-section.Vide section 2 (2) of the Act..
Section 10 of the Act provides that any person to whom Part IIIapplies shall not enter Ceylon .unless he has in his possession (a) a validPassport which bears an endorsement in the prescribed form granted tohim by an authorised officer under this Part ; and if so required byregulations made under this Act a visa granted to him under such regu-lations or a permanent Passport or Temporary Residence Permit issuedto him under such regulations.
Section 11 of the Act requires that no endorsement under Part IIIshall be granted by an authorised officer to any person unLess that personlias in his possession (a) a passport which is a valid passport ; and (b)if so. required by regulations made under this Act, a visa, a permanentresidence permit or temporary residence permit granted or issued to himunder such regulations. Regulations were made under the variousprovisions of this Act by the Minister of Defence and External Affairs—Vide Government Gazette No. 10,039 of October 28th, 1949. Section 14makes provision (a) for the granting of a visa for a period, not exceedingsix months, as may be specified in the visa ; (b) issue of a TemporaryResidence Permit for such definite period, exceeding six months, as maybe specified in the permit ; (c) issue of a permanent residence permit foran indefinite period. Section 14 also makes provision for the extensionof the period of a visa or permit above referred to.
TT A. DE SJXVAKT.—Sreenivasam v. Sittampalam335
]t is in pursuance of section 14 (1) (6) that the accused was granted aTemporary Residence Permit for a period of one year after the authoritieswere satisfied that he (accused) had a valid passport. Now section 14 (3)runs thus,
“ No permanent residence permit shall be refused—(a) hi the caseof the spouse or a dependent child of a citizen of Ceylon ; or
(ii) in the case of any other dependant of a citizen of Ceylon, ifthe Minister ia satisfied that the maintenance of such other dependantis assured, or a bond is entered into by such citizen in accordance withregulations made under this Act. Section 14 (3) (6) runs thus,
“ No temporary permit shall be refused in’the case of a personwho, being a British subject, was ordinarily resident in Ceylon for aperiod of at least five years immediately preceding the appointeddate. ”
At this stage it will be relevant to advert to the attempt made by theaccused to prove that he has been in Ceylon since June, 1943. Thatattempt in all probability was to prove that he had been in' Ceylon for aperiod of over five years before this Act came into operation on the 1stof November, 1949. So that if he came within section 14 (3) (6) he wouldhave been entitled as a matter of right, to obtain a Temporary ResidencePermit. Even though he had been in Ceylon from June 1943) yet inmy opinion he comes clearly within Part III, section 8 of the Act. Section14 (3) (b) lends ^support to the argument adduced by learned CrownCounsel that even a person who had been at least five years resident inCeylon before Hhe Act came into force had to obtain a TemporaryResidence Permit. Section 14 (3) (6) is an effective answer to the con-tention made by learned Counsel for the accused-appellant that thisAct has no application to British subjects and who are non-nationalswho were in Ceylon on the 1st of November, 1949. If the legislaturehad in contemplation the non-applicability of this Act to British subjectswho are non-nationals and who were residents in Ceylon, on the 1st ofNovember, 1949, there wrould have been no difficulty for the legislatureto have said so in clear and unambiguous terms. As I said before, theobject of the legislature in enacting this piece of legislation is clearly andunequivocally laid down in the preamble to the Act.
Now section 2 of the Act Snakes provision for the Minister to make anorder exempting persons or any class or description of persons from theoperation of this Act. The Minister has under section 2 of the Act madeorder published in Government Gazette No. 10,039 of October 28, 1949—Vide Government Gazette notification-—exempting certain persons, orgroup of persons or class of persons. Paragraph^ 9 of that order runs•thus,
“ Indian estate labourers proceeding to India and returning from Indiato Ceylon shall, until further notice, be exempt from the requirementof possessing a valid passport and a visa or a Residence Permit, if theypossess an Immigration certificate issued to them under the Estate Labour
H. A. DE SILVA J.—Sreenivaswni v. Sittampalanv
(Indian) Ordinance, No. 41 of 1943 The accused admittedly does notcome within this category. It is therefore abundantly clear that theaccused is not one of the persons exempted from the operation of this Act.
I do not think that anything turns on the words “ enter ” or “ re-enterThe accused comes within the provisions of this Act. He undoubtedlywas in Ceylon when the Act came into operation. He is a British subjectand a non-national of Ceylon. He had to obtain a valid passport fromthe representative of his Government in Ceylon to travel between Indiaand Ceylon. He obtained that passport. It was granted to himsubject to his observance of the regulations made under this Act. Priorto the enactment of the Act No. 20 of 1948 there was no requirement inthe law of this country that a person, whether he is a national or non-national, should be armed with a valid passport to enable him to travelbetween India and this country. The Act made it compulsory for bothnationals and non-nationals of Ceylon to have a valid passport for travelbetween Ceylon and India. In the case of a national of Ceylon he hadto obtain a valid passport from the officers appointed by the CeylonGovernment for that purpose, and in the case of a non-national from hisGovernment or the accredited representative of his country in Ceylon.
The accused, therefore, when he wanted to return to his countryobtained a valid passport from the High Commissioner for India in Ceylon.He had further to obtain a Temporary Residence Permit from the officerof the Government of Ceylon, to enable him to remain in Ceylon for oneyear. Once he went back to India there was no obligation on his partto come to Ceylon again. He may have remained in his country if heso desired. If he chose to come to Ceylon again armed with his Pass-port, which was valid for five years, and the Temporary ResidencePermit, he was undoubtedly entering Ceylon within the meaning ofPart III of the Act.
In the case of a national of this country, if he travels abroad with aCeylon passport, he will have to return to Ceylon within the periodmentioned in the passport or within the period of extension, if he hadbeen granted one. A person normally goes back to the country from whichhe came. The accused did precisely that. Thereafter he came to Ceylonagain with the passport granted to him.
I am unable to agree to the restricted meaning that is sought to begiven to the words “ entry into or entering Ceylon ” in Part III of theAct as applicable only to persons who had not been in Ceylon prior to the1st November, 1949, on which date the Act came into force. That inshort is the contention of Counsel for the accused..
That contention, if upheld, would be repugnant to the object, thescheme and the wording of this Act.
I therefore hold that the verdict of the learned Magistrate is correct.The sentence imposed is not excessive.
The appeal is dismissed.
V. S. SREENIVASAM , Appellant ,and S. SITTAMPALAM (Authorised Officer ,Departmen