ORDER.- 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. C.A. No. 810 of 1966.-The appellant Daniel Hailey Walcott was charged under ten counts, of which he was convicted on counts No. 1 and 3 to 10 and was sentenced to various terms of imprisonment, the maximum being R.I. of five years, the sentences to run concurrently, by the Sessions Judge, Madras. 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 31st December, 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. On 15th January, 1962, the appellant landed at Santa Cruz Aerodrome Bombay, with a passport describing himself as Daniel Hailey Walcott, a United States National. On 23rd January, 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 Afganisthan, 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 one Shri Nurcharan (P.W. 10) as an aircraft mechanic between February, and September, 1962. The appellant came back to India and landed at Palam Air port, New Delhi" on 8th March, 1962, describing himself as Daniel Hailey Walcott, Jr., with a residential permit valid till 25th April, 1962. From 13th April, 1962 for about 5 or 6 months, the appellant stayed with his wife in the Ashoka Hotel, New Delhi, registering himself as Daniel Hailey Walcott, a United State national. From 13th April, 1962 for about 5 or 6 months, the appellant stayed with his wife in the Ashoka Hotel, New Delhi, registering himself as Daniel Hailey Walcott, a United State national. While he was staying in Ashoka Hotel, the Delhi Police registered a case against him under the Indian Arms Act and filed a 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 25th September, 1962 to 1st December, 1962. He was subsequently released on bail and he left India. The Assistant Collector of Customs, New Delhi, filed a complaint on 22nd February, 1963, against the appellant under the Sea Customs Act and the Import and Export Control Act of 1947. On 24th February, 1963, the appellant landed at the Palam Airport and left India on 2nd March, 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. 2,000. He was detained in the Central Jail from 23rd August, 1963 till nth September, 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 23rd September, 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 the country, a proclamation was issued on 20th October, 1964, declaring the appellant as a proclaimed offender. Another case was subsequently registered under the provisions- of the ‘Foreigners’ 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 19th March, 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. In this state of affairs, the appellant landed at Meenambakkam Air port on 31st December, 1965, with the British Passport in the name of Barry Philip Charles Comyn as already noted. Of course, the appellant denied knowledge of the two cases registered against him. In this state of affairs, the appellant landed at Meenambakkam Air port on 31st December, 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 produced before P.W. 23 the Sub-Inspector of Police attached to the Port Registration Office, a British Passport, Exhibit P-40, and a disembarkation card, Exhibit 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. The appellant went to Oceanic Hotel, 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 N. 14-A, Mrlborough Place, London, and having a passport bearing No. 991143. This description was given in Exhibit 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. . While he was staying in the West End Hotel, Bombay, along with his companion, he was arrested by D. W. 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 print slip 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 print slip and the finger prints taken from the appellant in Bombay by the Finger Print Expert, it was found that they tallied. The passport, Exhibit 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 Walcott. The passport, Exhibit 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 Walcott. 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. The prosecution claimed that the British Passport, Exhibit 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. 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 using 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 are proved: On 19th November, 1965, an application dated 17th November, 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 28th June, 1934. It was attested by Harry F.Johnson, 14, John Street, London, W.C. 1. In pursuance of that, a British Passport, Exhibit P-40 was issued to the said Comyn on 22nd November, 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 28th June, 1934 dated in 1940 when he was six years old, during war operations. It was also found that no solicitor by name Harry F.Johnson lived in the address given in the application. The appellant admitted that his name is Daniel Hailey Walcott and that he is a national of United States of America. It was also found that no solicitor by name Harry F.Johnson lived in the address given in the application. The appellant admitted that his name is Daniel Hailey Walcott and that he is a national of United States of America. He landed in India in January, 1962, as an American National under the name of Daniel Hailey Walcott and even during his subsequent visit to India, he came in the name Daniel Hailey Walcott. He also admitted that he landed at Meenambakkam Airport on 31st December, 1965 with the British Passport Exhibit 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 this 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, Taxas, U.S.A., on 26th November, 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 31st December, 1965 evening. I was using a false British passport under the name of Barry Philips Charles Comyn and Mr. Donze was using false-British passport under the name of Stephen Thomas Lamb. These passports were obtained from the Foreign Office, London by making an application with certificates of a deceased person, using our photographs. I was using a false British passport under the name of Barry Philips Charles Comyn and Mr. Donze was using false-British passport under the name of Stephen Thomas Lamb. These passports were obtained from the Foreign Office, London by making an application with certificates 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 given 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 consequence 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, 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. From the facts stated above, it is clear that the applicant landed at Meenambakkam Aerodrome on 31st December, 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 Gomyn 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. 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 Indian Penal Code 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 section 463 Indian Penal Code is as follows:- “Whoever mates 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 section 464, Indian Penal Code which runs as follows: “A person is said to make a false document- First-Who dishonestly or fraudulently makes signs, scales 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, scaled 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 this case. ‘Forged document’ is defined under section 470, Indian Penal Code. 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 section 464 Indian Penal Code and (3) It must have been made with one of the intents specified under section 463, Indian Penal Code. It is contended that the passport Exhibit 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 Exhibit 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 Exhibit 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 concerned. Instead of the passport 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 Exhibit 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, that false document must have been made with a fraudulent intention. There cannot be any doubt that the part of the document viz., page 2 in the passport is false But the question is whether it was made with fraudulent intention. “ Fraudulently” is’ defined in section 25 of the Indian Penal Code. 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 autologically The word ‘fraud’ or ‘fraudulently’ must be understood in the general and popular sense. 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 autologically The word ‘fraud’ or ‘fraudulently’ must be understood in the general and popular sense. It involves two elements, namely (1) deceit; and (ii) 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 cases 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. In Dr. Vimla v. Delhi Administration1, the case law on this subject was fully discus sed and the principles 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 corres ponding loss to the deceived, the second condition is satisfied. Non-economic advantages to the deceiver or non-economic loss to the deceived need not co-exist. Sir James Stephen, in his ‘History of the Criminal Law of England, vol IT page 121, observes — which has been quoted in Kotamraju Venkatrayadu v Emperor2the Full Bench decision of this Court, subsequently followed and approved by the Supreme Court in Dr. Vitnla v. Delhi Administration1. Sir James Stephen, in his ‘History of the Criminal Law of England, vol IT page 121, observes — which has been quoted in Kotamraju Venkatrayadu v Emperor2the Full Bench decision of this Court, subsequently followed and approved by the Supreme Court in Dr. Vitnla v. Delhi Administration1. ”Whenever the words ‘fraud’ or ‘Intent to defraud,‘ or ‘fraudulently’ occur in the definition of a crime, two elements atleast are essential to the commission of the crime ; namely, first, deceit or an intention to deceive or in some “ cases, mere 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 object in nearly every case is 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 hae had an equivalent in loss or risk of loss to some one else, and, if so , there was fraud.“ It is, therefore, clear that a 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, some one 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), page 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 a d 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 maker must have known that what was made was false a d 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 section 342 Criminal Procedure Code, 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. 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 is admittedly forged. The appellant has been convicted for having used the forged document 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 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 officers 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. 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 467 Indian Penal Code, section 467 Indian Penal Code is a penal section in respect of forgery of valuable security. 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 467 Indian Penal Code, section 467 Indian Penal Code 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 the consideration, "Valuable security" is defined in section 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 by any person acknowledges that he lies under legal liability, or has not a certain legal right. " In view of the 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. 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 — Volume IV, Chapter 21, page 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 or 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 conferred and some recognized. " Roscoe Pound prefers to follow the English analytical jurists and thinks or 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 conferred and some recognized. " At pages 70 and 71, it is stated: "The capacities of creating, divesting or altering legal rights in the stricter sense or of creating liabilities, as means of securing recognized interests (legal powers) are some conferred and some recognised..............The exemptions 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 pages 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 — Twelfth Edition — at page 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 page 233 under the head note” The kinds of legal rights “ , it is stated: ”A perfect right is one which corresponds to a perfect duty, and a perfect duty in 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 systems, however, there are rights and duties which, though undoubtedly recognised by the law, yet fall short of this typical and perfect form............ In all fully developed legal systems, 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 interest 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 low.“ C. W. Paton in his Text Book of Jurisprudence — Third Edition — at page 250, states as follows: ........the characteristic 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 recognizes but will not enforce directly.” At page 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 could, 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’: (1) Legal right in its strict sense is one which is an assertable claim, enforceable before Courts and. 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’: (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. 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. 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 section 30 Indian Penal Code. It is necessary to know the implication of a passport. A British passport is described as follows by Lord Alverstor.e, C.J., in Rex v. Brailsford1which is of 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. Lord Jowitt, L.C. in Joyce v. Director of Public Prosecutions2, 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 gives him rights and imposes upon the sovereign obligations which would otherwise not be given or imposed.” At page 370, he says: “To me, my Lords, it appears that the Crown in issuing a passport is assuming an onerous burden, and the holder of the passport is acquiring substantial previlleges. A well-known writer or international law has said (See Oppenheimr, International Law, 5th Ed., Vol. I, page 546) that by a universally recognized customary rule of the law of nationals every state holds the right of protection over its citizens abroad. This rule thus recognized 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 Governments 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*” It is, therefore, clear from this speech with which I respectifully 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 recognized by the law of nations and has become a rule of law. Apart from this, in this country a law has been made, taking power to require passports of persons entering India. Indian Passport Act (XXXI Vol.1920) was passed in 1920. Section 3 of the said Act provides to make rules prohibiting entry into India of any person who is not in his possession a passport issued to him. In exercise of the powers conferred under section 3 of the said Act, the Central Government made rules. Indian Passport Act (XXXI Vol.1920) was passed in 1920. Section 3 of the said Act provides to make rules prohibiting entry into India of any person who is not in his possession a passport issued to him. In exercise of the powers conferred under section 3 of the said Act, the Central Government made rules. Under rule 3, therfore, 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 section 4 of the said Act, any person who contravenes the rules made in section 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 section 5 of the Act, the Central Government is authorised by general or special order to direct the removal or any such person from India. These provisions make it abundantly clear that possession of a passport is a necessary requisite for a person leaving India. But, however, the main question involved in this case is as to the nature and the characteristic 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 section 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 the validity. 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 the validity. Rule 3 of the Rules which is very important for the discus ion 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..........” Under rule 4, certain classes of persons are exempted from the provisions of rule 3. The Indian Passport Act with the rules framed thereunder, therefore, recognizes 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, this right which is recognized under the provisions of the Indian Passport Act, Is a legal right. 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 contention relied upon a passage in the British Digest of International Law published by Stevens & Sons Phase 1, Volume 6 at page 9 which is as follows: “An alien, It has been judicially stated by the Privy Council in Musgrove v. Chun Teeong Toy1, 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.” This passage is not at all helpful, in my opinion, to support the contention of the learned Counsel. This principle is quite independent of any general legislation in force whereby the entry of aliens is regulated.” 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 Passport Act, 1920) regulating the entry of persons into India and also the Foreigners Act (XXXI 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 The principle quoted in the above passage is based upon the decision Musgrove v..Chun Teeong ToyK 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. ORDER.- 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. C.A. No. 810 of 1966.-The appellant Daniel Hailey Walcott was charged under ten counts, of which he was convicted on counts No. 1 and 3 to 10 and was sentenced to various terms of imprisonment, the maximum being R.I. of five years, the sentences to run concurrently, by the Sessions Judge, Madras. 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 31st December, 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. 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. On 15th January, 1962, the appellant landed at Santa Cruz Aerodrome Bombay, with a passport describing himself as Daniel Hailey Walcott, a United States National. On 23rd January, 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 Afganisthan, 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 one Shri Nurcharan (P.W. 10) as an aircraft mechanic between February, and September, 1962. The appellant came back to India and landed at Palam Air port, New Delhi" on 8th March, 1962, describing himself as Daniel Hailey Walcott, Jr., with a residential permit valid till 25th April, 1962. From 13th April, 1962 for about 5 or 6 months, the appellant stayed with his wife in the Ashoka Hotel, New Delhi, registering himself as Daniel Hailey Walcott, a United State national. While he was staying in Ashoka Hotel, the Delhi Police registered a case against him under the Indian Arms Act and filed a 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 25th September, 1962 to 1st December, 1962. He was subsequently released on bail and he left India. The Assistant Collector of Customs, New Delhi, filed a complaint on 22nd February, 1963, against the appellant under the Sea Customs Act and the Import and Export Control Act of 1947. On 24th February, 1963, the appellant landed at the Palam Airport and left India on 2nd March, 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. 2,000. 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. 2,000. He was detained in the Central Jail from 23rd August, 1963 till nth September, 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 23rd September, 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 the country, a proclamation was issued on 20th October, 1964, declaring the appellant as a proclaimed offender. Another case was subsequently registered under the provisions- of the ‘Foreigners’ 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 19th March, 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. In this state of affairs, the appellant landed at Meenambakkam Air port on 31st December, 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 produced before P.W. 23 the Sub-Inspector of Police attached to the Port Registration Office, a British Passport, Exhibit P-40, and a disembarkation card, Exhibit 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. The appellant went to Oceanic Hotel, 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 N. 14-A, Mrlborough Place, London, and having a passport bearing No. 991143. The appellant went to Oceanic Hotel, 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 N. 14-A, Mrlborough Place, London, and having a passport bearing No. 991143. This description was given in Exhibit 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. . While he was staying in the West End Hotel, Bombay, along with his companion, he was arrested by D. W. 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 print slip 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 print slip and the finger prints taken from the appellant in Bombay by the Finger Print Expert, it was found that they tallied. The passport, Exhibit 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 Walcott. 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. The prosecution claimed that the British Passport, Exhibit 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. 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 using forged document, a valuable security, fraudulently, knowing it to be false to gain entry to this country. 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 using 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 are proved: On 19th November, 1965, an application dated 17th November, 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 28th June, 1934. It was attested by Harry F.Johnson, 14, John Street, London, W.C. 1. In pursuance of that, a British Passport, Exhibit P-40 was issued to the said Comyn on 22nd November, 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 28th June, 1934 dated in 1940 when he was six years old, during war operations. It was also found that no solicitor by name Harry F.Johnson lived in the address given in the application. The appellant admitted that his name is Daniel Hailey Walcott and that he is a national of United States of America. He landed in India in January, 1962, as an American National under the name of Daniel Hailey Walcott and even during his subsequent visit to India, he came in the name Daniel Hailey Walcott. He also admitted that he landed at Meenambakkam Airport on 31st December, 1965 with the British Passport Exhibit 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. 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 this 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, Taxas, U.S.A., on 26th November, 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 31st December, 1965 evening. I was using a false British passport under the name of Barry Philips Charles Comyn and Mr. Donze was using false-British passport under the name of Stephen Thomas Lamb. These passports were obtained from the Foreign Office, London by making an application with certificates 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 given 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 consequence 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, it would be used against him. The appellant has given a lengthy confessional statement in respect of matters not relevant to this case. He must have known the consequence 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, 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. From the facts stated above, it is clear that the applicant landed at Meenambakkam Aerodrome on 31st December, 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 Gomyn 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. 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 Indian Penal Code 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. 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 section 463 Indian Penal Code is as follows:- “Whoever mates 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 section 464, Indian Penal Code which runs as follows: “A person is said to make a false document- First-Who dishonestly or fraudulently makes signs, scales 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, scaled 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 this case. ‘Forged document’ is defined under section 470, Indian Penal Code. 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 section 464 Indian Penal Code and (3) It must have been made with one of the intents specified under section 463, Indian Penal Code. It is contended that the passport Exhibit 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 Exhibit 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 Exhibit P-40 constitute a part of the document. Hence, it becomes necessary to consider whether the particulars contained in page 2 of Exhibit 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 concerned. Instead of the passport 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 Exhibit 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, that false document must have been made with a fraudulent intention. There cannot be any doubt that the part of the document viz., page 2 in the passport is false But the question is whether it was made with fraudulent intention. “ Fraudulently” is’ defined in section 25 of the Indian Penal Code. 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 autologically The word ‘fraud’ or ‘fraudulently’ must be understood in the general and popular sense. It involves two elements, namely (1) deceit; and (ii) 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 cases 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. In Dr. Vimla v. Delhi Administration1, the case law on this subject was fully discus sed and the principles 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 corres ponding loss to the deceived, the second condition is satisfied. Non-economic advantages to the deceiver or non-economic loss to the deceived need not co-exist. Sir James Stephen, in his ‘History of the Criminal Law of England, vol IT page 121, observes — which has been quoted in Kotamraju Venkatrayadu v Emperor2the Full Bench decision of this Court, subsequently followed and approved by the Supreme Court in Dr. Vitnla v. Delhi Administration1. ”Whenever the words ‘fraud’ or ‘Intent to defraud,‘ or ‘fraudulently’ occur in the definition of a crime, two elements atleast are essential to the commission of the crime ; namely, first, deceit or an intention to deceive or in some “ cases, mere 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 object in nearly every case is 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 ? 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 hae had an equivalent in loss or risk of loss to some one else, and, if so , there was fraud.“ It is, therefore, clear that a 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, some one 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), page 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 a d 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 section 342 Criminal Procedure Code, 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. 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 is admittedly forged. The appellant has been convicted for having used the forged document fraudulently. 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 is admittedly forged. The appellant has been convicted for having used the forged document 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 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 officers 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. 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 467 Indian Penal Code, section 467 Indian Penal Code 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 the consideration, "Valuable security" is defined in section 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 by any person acknowledges that he lies under legal liability, or has not a certain legal right. " In view of the 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. 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. 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. 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 — Volume IV, Chapter 21, page 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 or 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 conferred and some recognized. " At pages 70 and 71, it is stated: "The capacities of creating, divesting or altering legal rights in the stricter sense or of creating liabilities, as means of securing recognized interests (legal powers) are some conferred and some recognised..............The exemptions 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 pages 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 — Twelfth Edition — at page 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 page 233 under the head note” The kinds of legal rights “ , it is stated: ”A perfect right is one which corresponds to a perfect duty, and a perfect duty in 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 systems, 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 interest 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 low.“ C. W. Paton in his Text Book of Jurisprudence — Third Edition — at page 250, states as follows: ........the characteristic 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 recognizes but will not enforce directly.” At page 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 could, 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’: (1) Legal right in its strict sense is one which is an assertable claim, enforceable before Courts and. 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’: (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. 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. 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 section 30 Indian Penal Code. It is necessary to know the implication of a passport. A British passport is described as follows by Lord Alverstor.e, C.J., in Rex v. Brailsford1which is of 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. Lord Jowitt, L.C. in Joyce v. Director of Public Prosecutions2, 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 gives him rights and imposes upon the sovereign obligations which would otherwise not be given or imposed.” At page 370, he says: “To me, my Lords, it appears that the Crown in issuing a passport is assuming an onerous burden, and the holder of the passport is acquiring substantial previlleges. A well-known writer or international law has said (See Oppenheimr, International Law, 5th Ed., Vol. I, page 546) that by a universally recognized customary rule of the law of nationals every state holds the right of protection over its citizens abroad. This rule thus recognized 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 Governments 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*” It is, therefore, clear from this speech with which I respectifully 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 recognized by the law of nations and has become a rule of law. Apart from this, in this country a law has been made, taking power to require passports of persons entering India. Indian Passport Act (XXXI Vol.1920) was passed in 1920. Section 3 of the said Act provides to make rules prohibiting entry into India of any person who is not in his possession a passport issued to him. In exercise of the powers conferred under section 3 of the said Act, the Central Government made rules. Indian Passport Act (XXXI Vol.1920) was passed in 1920. Section 3 of the said Act provides to make rules prohibiting entry into India of any person who is not in his possession a passport issued to him. In exercise of the powers conferred under section 3 of the said Act, the Central Government made rules. Under rule 3, therfore, 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 section 4 of the said Act, any person who contravenes the rules made in section 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 section 5 of the Act, the Central Government is authorised by general or special order to direct the removal or any such person from India. These provisions make it abundantly clear that possession of a passport is a necessary requisite for a person leaving India. But, however, the main question involved in this case is as to the nature and the characteristic 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 section 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 the validity. 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 the validity. Rule 3 of the Rules which is very important for the discus ion 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..........” Under rule 4, certain classes of persons are exempted from the provisions of rule 3. The Indian Passport Act with the rules framed thereunder, therefore, recognizes 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, this right which is recognized under the provisions of the Indian Passport Act, Is a legal right. 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 contention relied upon a passage in the British Digest of International Law published by Stevens & Sons Phase 1, Volume 6 at page 9 which is as follows: “An alien, It has been judicially stated by the Privy Council in Musgrove v. Chun Teeong Toy1, 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.” This passage is not at all helpful, in my opinion, to support the contention of the learned Counsel. This principle is quite independent of any general legislation in force whereby the entry of aliens is regulated.” 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 Passport Act, 1920) regulating the entry of persons into India and also the Foreigners Act (XXXI 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 The principle quoted in the above passage is based upon the decision Musgrove v..Chun Teeong ToyK 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.