J.M.L. Sinha, J.
1. This appeal arises out of the judgment and order dated 4th of December, 1968, passed by Additional District Magistrate, Aligarh acquitting the respondent of the offence under para 7 (2) of the Foreigners' Order, 1948 read with Section 14 of the Foreigners Act.
2. The prosecution case shortly stated is as follows:-
Ahsan Ali, respondent, is a national of Pakistan. On 13th of May 1968 at about 3 P. M. Sri Satya Prakash Saxena (P. W. 1), Sub-Inspector, Aligarh, arrested him from Mohalla Jaiganj and it then transpired that he came to India from Pakistan on 19th July, 1953 on a Pakistani Passport No. 124896 dated 8-7-1953 and Indian Visa No. 32093 dated 11th July, 1953 which was valid upto 10th of October, 1953. The respondent got the visa extended upto 10th of December, 1953. He did not however, go back to Pakistan within the extended period of the visa nor did he get any residential permit prepared till the date of his arrest. He was, therefore, sent up for prosecution under Section 14 of the Foreigners' Act.
3. The respondent in his statement in the Trial Court admitted that he came to India on 19th July, 1953 under Pakistani Passport No. 124896 dated 8th July, 1953 and Indian Visa No. 32093 dated 11th July, 1953, which was valid upto 10th of October, 1953. He further pleaded that he did not remember whether he got the period of the visa extended upto 10th of December, 1953. He, however, admitted that he did not go to Pakistan thereafter nor did he get any residential permit prepared in his name. He admitted that he was arrested by the police on 13th May, 1968, from Mohalla Jiaganj, Aligarh. During his examination under Section 342, Criminal Procedure Code he added that he had gone to Pakistan in 1950 when he was 17 years of age and that he returned to India in 1953. He denied that he was a Pakistani national.
4. The prosecution in order to prove its case examined Sri Satya Prakash Saxena, Sub Inspector (P. W. 1), Babu Singh, Head Constable (P. W. 2), Dori Lai, Constable (P. W. 3) and Sri Krishna Kumar Tyagi, Sub Inspector (P. W. 4), who investigated the case.
5. The respondent examined three witnesses in his defence. Nasir Uddin (D. W. 1) deposed that the respondent was his neighbour and that he went away to Pakistan on the occasion of Holi of the year 1950 and that he returned to India 2i years or 3 years later. Hamid Khan (D. W. 2) and Chaudhary Fayyaz Ahmad Khan (D. W. 3) also made statements to the same effect. The last named D. W. also deposed that the respondent was a direct descendant of Sher Shah Suri and that he was born in the locality known as Turk-man-darwaza.
6. The Trial Court on a consideration of the evidence on record came to the conclusion that no offence was made out against respondent and in the result acquitted him. Feeling aggrieved against it the State of Uttar Pradesh has come up in appeal before this Court.
7. I have heard learned Counsel on both the sides and have also gone through the record of the case.
8. So far as can be gathered from the judgment of the Trial Court, two contentions were raised there on behalf of the resr pondent namely;
(i) That since the respondent had gone to Pakistan after the commencement of the Constitution he was an Indian National;
(ii) that even if it be assumed that the respondent had migrated to Pakistan before the commencement of the Constitution, he was not a foreigner within the meaning of that expression as denned in Section 2(a) of. the Foreigners' Act as it stood prior to its amendment by Act XI of 1957.
9. The first contention raised on behalf of the respondent did not find favour with the Trial Court and it was held that the respondent migrated to Pakistan before the commencement of the Indian Constitution. It was, however, accepted by the Trial Court that the respondent was not a 'Foreigner' within the meaning of Foreigners' Act and it was in consequence of that finding that the Trial Court acquitted the respondent.
10. The point that therefore falls for consideration is whether, in the context of the conclusion of the Trial Court that the respondent migrated to Pakistan before 1950, its finding that he was not a 'foreigner' when he entered India in 1953 is correct.
11. The definition of the word 'Foreigner' prior to its amendment by Act II of 1957 was as follows:-
Foreigner means a person who-
(i) is not a natural born British subject as denned in Sub-sections (1) and (2) of Section 1 of the British Nationality and Status of Aliens Act, 1914 or
(ii) has not been granted a certificate of naturalization as British subject under any law for the time being in force in India or
(iii) is not a citizen of India.
12. learned Counsel for the respondent contended that when the respondent is said to have entered India in 1953 he was not a 'Foreigner' because he was a natural born British subject as defined in Sub-sections (1) and (2) of Section 1 of the British Nationality and Status of Aliens Act, 1914. It was urged that since he was not a 'Foreigner' on that date he could not thereafter be treated to be a Foreigner and, could not be prosecuted of the contravention of para 7 (2) of the Foreigners' Order, 1948 merely because he continued to stay in India after the expiry of the period of the visa and did not obtain any residential permit.
13. In support of his argument learned Counsel referred me to the cases Mohd. Hanif v. State, 1959 All LJ 895 : (1960 Cri LJ 878), State of Uttar Pradesh v. Mohd. Yasin AIR 1967 AH 320 : (1967 Cri LJ 833) and Gulam Rasool v. State, 1970 All LJ 1251, in support of his argument.
14. Now. so far as the case of Mohd. Hanif Khan v. State, (supra) is concerned the charge against Mohd. Hanif Khan in that case was that being a Pakistani National he continued to stay in India till 20th of August 1954, without getting his visa extended and without obtaining a residential permit. It is worthy of notice that till 26th of August, 1954, the definition of the word 'Foreigner' had not been amended. In view of the definition of the word 'Foreigner' as it stood in 1954, Mohammad Hanif could not be treated to be a 'Foreigner' till 20th August, 1954. He could not, therefore, be prosecuted fot contravening Rule 7 of the Foreigners' Order, 1948.
15. In the case of : AIR1967All320 the accused had migrated to Pakistan in 1949, he entered India in 1953 on a Pakistani Passport which was valid only upto 6th of January, 1954, but he continued to overstay and was arrested on 20th July, 1962. It was held:-
The opposite party admittedly entered India in the year 1953. According to the definition of a 'Foreigner' as it stood in the Act before the amendment of 1957 any person born within His Majesty's dominion and allegiance was a citizen of India. Therefore it must be held that on the date of entry in this country even on a Pakistani Passport, opposite party was a citizen of this country. The Amending Act which effected a change in the definition of a 'Foreigner' came into force from January 19, 1957. Therefore, although he could not be convicted for an act done by him before the amendment on the basis that he was a 'Foreigner' such as his entry in India and overstaying here, he could be convicted after January 19, 1957, for disobeying any of order or conditions issued to him under the provisions of the Foreigners' Act as it stood after the amendment. In other words if after January 19, 1957, an order had been served on him by the authorities directing him to leave India within a certain period and if he had contravened that order, it can be said that because of the amendment in the Act he had become a 'Foreigner' and had contravened an order passed in pursuance of the Act.
Further on it was observed in this case-
However there is no evidence that any order has been passed by the authorities after January 19, 1957, directing the opposite party to leave India within a particular period. In the circumstances the question of contravention of any order under the Act which can be punished under Section 14 does not arise.
16. From the above it would be clear that it was conceded in the case of : AIR1967All320 that even if a person was not a 'Foreigner' before the amendment of that term by Act XI of 1957, he could be a foreigner after the amendmeht thereof. The respondent's acquittal in that case was upheld because in (Contd. on Col. 2) the opinion of the learned Single Judge there was no evidence of the fact that subsequent to the amendment of the term 'Foreigner' in the year 1957, any general or special order was issued directing the respondent to take any action in compliance thereof. It was not brought to the notice of the learned Single Judge that a general order was issued by the Government on 4th of December, 1959 in exercise of its power under Section 3 of the Act re-enacting para 7 of the Foreigners' Order. Paragraph 7 of the Foreigners' Order, 1948 as it stood before and after its amendment in December, 1959 are reproduced below for comparative study:
Para 7 before its Amendment by the Para 7 after Us Amendment by the
order dated 4th Dec. 1959. order dated 4th Dec. 1959.
Every foreigner who enters India on Every foreigner who enters India on
the authority of a visa issued in pursuance the authority of a visa issued in pursuance of
of the Indian Passport Act, 1920 shall Indian Passport Act, 1920 (XXXIV of
obtain from the Registration Officer 1920), shall obtain from the Registration
having jurisdiction either at the place at Officer having jurisdiction either at the
which the said foreigner enters India or, place at which the said foreigner enters
at the place at which he represents a re India or at the place, at which he pre
gistration or in accordance with Rule 6 sents a registration or in accordance with
of the Registration of Foreigners' Rules, Rule 6 of the Registration of Foreigners'
1939... Rules, 1939, a permit indicating the pe
riod during which he is authorised to re-
main in India.
(ii) Every foreigner resident in India to
whom the provisions of sub-para (1) do
not apply, shall, on or before the 5th
of January, 1960, obtain from the Regis-
tration Officer having jurisdiction at the
place at which he resides a permit indi-
cating the period during which he is au-
thorised to remain in India.
(iii) Every foreigner to whom a permit
is issued under sub-para (1) or sub-
para (2), shall, unless the period indic-
ated in the permit is extended by the
Central Government, depart from India
before the expiry of the said period; and
at the time of the foreigner's departure
from India the permit shall be surrende-
red by him to the Registration Officer
having jurisdiction at the place
from which he departs.
Para 7 of the Foreigners' Order, 1948 was again amended on 24th September, 1960. By that amendment the following words were added at the end of sub-para (1) of para 7:-
and also indicate the place or place of stay in India, if any, specified in the visa. In granting such permit the said Registration Officer may restrict the stay of the foreigner to any of the places specified in the visa.
Sub-para (3) of Para 7 of the Foreigners' Order was re-enacted by the same order i.e., order dated 24th September, 1960, and it now reads as follows:
Every foreigner to whom a permit is issued under sub-para (1) or sub-para (2)-
(a) shall not, if the permit indicates place or places, for stay in India, visit any other place unless the permit is extended by the Central Government to such other place, and
(b) shall unless the period indicated in the permit is extended by the Central Government depart from India before the expiry of the said period, and at the time of the foreigner's departure from India the permit shall be surrendered by him to the Registration Officer having jurisdiction at the place from which he departs.
17. It appears that the aforesaid provisions were not brought to the notice of the learned Single Judge deciding the case : AIR1967All320 , with the result that it could not be examined whether respondent had or had not applied for a permit and whether he was or was not granted a permit, and the appeal ended in dismissal. learned Counsel for the respondent cannot therefore seek any help from the case State v. Mohd. Yasin.
18. In the case of 1970 All LJ 1251 (supra) the appellant entered into India on 28th March, 1955 on a Pakistani passport dated 7th March, 1955 and visa dated 22nd March, 1955 which was initially valid upto 21st June, 1955 which period was later extended upto 23rd March, 1956. The appellant did not return even within the extended period and was arrested on 27th October, 1966.
19. My brother G. S. Lai, J., who decided the case was of the view that the effect of the amendment of the Foreigners' Act, 1946 in 1957 was not to bring within the scope of para 7 of the Foreigners' Order, persons who bad entered India before the amendment and were not foreigners according to the definition then in force but who became foreigners under the new definition. For this reliance was placed by G. S. Lai, J., on a Division Bench decision of this court in case State v. Yaqub, 1960 All LJ 924 : ((1961) 2 Cri LJ 173). The learned Single Judge- observed:
So under that decision the question of the applicant being a 'foreigner' or not is to be judged with reference to the date of his entry in India which was 28th of March, 1955.
20. After making a reference to the definition of the term 'foreigner' as it existed on 28th of March, 1955, on which date the appellant entered this country, and to the Division Bench decision in case 1960 All LJ 924 : ((1961) 2 Cri LJ 173), G. S. Lai, J., held that he was not a foreigner and that he could not be prosecuted for contravening any part of para 7 of the Foreigners' Order.
21. On a careful examination of the report of the case 1960 All LJ 924 : ((1961) 2 Cri LJ 173) (supra), on which reliance was placed by my brother G. S. Lai, J., I find that the facts of that case were clearly distinguishable. It would be of use to quote the following observation from the decision of that case.-
The law relating to Foreigners remained untouched till 1957. In that year Parliament passed the Amending Act, 1957, amending definition of the 'Foreigner' so as to mean a person who was not citizen of India. So far as para 7 of Jhe Order 1948 _is_ concerned it, however, continued as before and the point which we are consequently requir-ed to decide is whether it applies jothe res-pondent or not.
(Underlining is by me).
From the portion underlined in the above quotation it would be abundantly clear that para 7 of the Foreigners' Order, 1948 had not been amended till the date on which the respondent had been arrested and the Division Bench was considering the case of the respondent in the light of para 7 of the Foreigners' Order, 1948 as it stood on the date on whiei the respondent was arrested in that case. In the case of 1970 All LJ 1251 (supra) however, sub-para (2) of para 7 of the Foreigners' Order, 1948 had been amended more than once before the arrest of Ghulam Rasoal as already indicated earlier. The observations contained in the Division Bench decision were, therefore, not applicable to the facts of the case of Ghulam Rasool.
22. Since I feet inclined to take a view contrary to that expressed in the case of 1970 All LJ 1251 (supra) I should have referred the case to a larger Bench. I however find that the point in issue stands concluded by two decisions of the Supreme Court-
23. Faleh Mohammad v, Delhi Administration : AIR1963SC1035 and Delhi Administration v. Mohd. Iqbal : 1971CriLJ509 . The decision of the Supreme Court in case Fateh Mohd. v. Delhi Administration was available when my brother G. S. Lai, J., decided the case of Ghulam Rasool v. State but it appears that this de-cision was not brought to his notice. In view of the aforesaid decision of the Supreme Court it does not appear necessary to make a reference in this case to a larger Bench.
24. The facts in the case : AIR1963SC1035 were as follows:-
Fateh Mohammad entered India in 1956 on a Pakistani Passport. The visa endorsed on it enabled him to stay in India till August 8, 1956. As he failed to do so the Delhi Administration made an order under Section 3 of the Foreigners' Act and served it on him on November 19, imposing certain restrictions on his stay. The appellant did not comply with those restrictions and he was consequently sent up for prosecution. The case in due course came up before the Supreme Court. The Supreme Court considered whether Fateh Mohammad was a Foreigner and could be prosecuted for having contravened the order passed by Delhi Administration under Section 3 of the Foreigners' Act and served on him on November 19, 1959. The court observed:-It is contended that as the appellant was not a foreigner at the time he made his entry into India, he could not be convicted on the basis he was a foreigner within the meaning of the definition of a 'Foreigner' as subsequently amended. There is a fallacy undeilvine in this argument. The appellant was certainly not a foreigner when he entered India under the definition of a 'Foreigner' as it then stood. In view of the amendment of the definition he became a foreigner after January 19, 1957. He could not be convicted for an offence for an act done by him before the amendment-on the basis he was a foreigner; for instance an act done by him such as his entry into India or his non-compliance with the condition of an order issued on him before the amendment on the foot that he was a foreigner. But the offence for which he is charged is an act done by him in derogation of an order issued to him after the amendment. On the date when the Delhi Administration served on him the notice imposing certain restrictions and directing him to comply with certain conditions for his stay he was a foreigner within the meaning of amended definition. On the basis of the existing law he committed an offence and it will be futile for him to contend that he was not a foreigner under the original definition.
25. In the case : 1971CriLJ509 the respondent had left India in 1947. He came to India thrice thereafter on the last occasion he came on 31st May, 1956, after having obtained a visa which was extended upto 30th of November, 1956. He did not leave India and continued to stay without obtaining any residential permit. He was accordingly arrested on 5th October, 1960.
26. The Supreme Court accepted that he was a foreigner and was guilty of having contravened the provisions of Rule 7 (2) of the Foreigners' Order.
27. In the case before us, though Ahsan Ali was not a Foreigner on 10th of October, 1953 when he entered India, ha became a foreigner on 19th lanuary, 1957, when the definition of the word 'foreigner' was amended. Under Section 3 of the Foreigners' Act the Central Government can by order make provision either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner for prohibiting, regulating or restricting their entry into India or their departure from there or their presence or continued presence therein. In exercise of the powers under Section 3 of the Foreigners' Act the Central Government during the year 1959 inserted sub-para (2) in paragraph 7 of the Foreigners' Order, 1958, which has been reproduced earlier in this judgment. It was again amended and substituted with the following sub-para (2) through an order dated 16th June, 1965:
Every foreigner to whom the provisions of sub-para (i) do not apply shall, obtain a permit indicating the period during which he is authorised to remain in India, from the, Registration Officer to whom he presents a registration in accordance with Rule 6 of the Registration of Foreigners' Rules, 1939.
28. A perusal of sub-paras (1) and (2) of para 7 would reveal that while sub-para (1) applies only to those persons who were foreigners on the date on which they enter India, sub-para (2) applies to those who are not covered by sub-para (1). Sub-para. (2) would thus apply to those persons who may not be foreigner on the date of their entry in this country but became foreigner later on. Now, since the respondent entered India during the year 1953 and he was at that time not a foreigner within the meaning of that term as it then stood sub-para (1) of para 7 should not apply to him. He, however, became a foreigner on 19th June, 1957, when the definition of the term 'foreigner' was amended to say that every person who is not a citizen of this country is a foreigner. Sub-para (2) of para 7 would therefore be clearly applicable to him.
29. Since sub-para (2) was inserted in para 7 of the Foreigners' Order, 1948 after the amendment of the definition of the word 'foreigner' in the Foreigners' Act, it became incumbent on the respondent to make a compliance thereof. It is admitted on both hands that the respondent did not obtain a residential permit as required by sub-para (2) of para 7 of the Foreigners' Order, 1948. He was therefore guilty of having contravened sub-para (2) of the Foreigners' Order punishable under Section 14 of the Foreigners' Act. The conclusion to the contrary reached by the trial Court is erroneous.
30. Confronted with the above position learned Counsel for the respondent assailed the finding of the trial Court on point No. 1 and urged that the respondent migrated to Pakistan after the commencement of the Constitution and not before the commencement of the Constitution. It was contended that since the respondent migrated to Pakistan after the commencement of the Constitution and since there is no declaration of the Government of India that he has ceased to be an Indian National, he should be deemed to be a citizen of this country and consequently cannot be prosecuted of the breach of paragraph 7 sub-para (2) of the Foreigners' Order, 1948.
31. Having given my careful thought to the above contention raised on behalf of the respondent I find that it has no force. According to the entries in the visa obtained by the respondent he had migrated to Pakistan in September, 1947. In column 6 of the application it was mentioned by the respondent himself that he was a Pakistani national. It was open to the Trial Court to take into consideration the entries contained in the visa and the application moved by the respondent for that purpose and he held on the basis thereof that the respondent had migrated to Pakistan before the commencement of the Constitution. In case State of Uttar Pradesh v. Zafar Ali : AIR1963All18 decided by D. P. Uniyal and K. B. Asthana, JJ., it was observed :-
The question therefore that arises for consideration is whether the respondent who had come on Pakistani Passport and a visa can be held to be citizen of India. Prima facie the nationality of the person holding the passport is that which is described in the Passport. Under Pakistani Citizenship Act, a person can obtain a Pakistani passport, if he is a citizen of that country and not otherwise. It follows, therefore, that the passport issued to the respondent by the Pakistani authorities was presumptive proof of the nationality of the respondent.
32. The view taken by the Trial Court finds support from the view expressed by this Court in the above cited case.
33. It is true that the respondent examined three witnesses in his defence all of whom deposed that the respondent went away to Pakistan during the riot that took place on the occasion of Holi in the year 1950. It is, however, apparent on a perusal of the evidence of all the three defence witnesses that thev had close association with the respondent. Nasir Uddin (D. W. 1) made a statement in the examination in chief that he was acquainted with the respondent since 20 or 25 years. Hameed Khan D. W. 2 stated that he and the brother of the respondent were co-workers in a factory. Chau-dhary Fayaz Ahmad Khan (D. W. 3) conceded that his elder son accompanied the respondent upto the station to persuade him not to go to Pakistan. Obviously he would not have done so. unless he had close relations with the respondent. It appears that the aforesaid witnesses came forward to give evidence on the side of the respondent because of the association existing between them and the respondent. In view of the documentary evidence contained in the visa and the application mentioned earlier reliance could not be placed on the oral testimony of the witnesses and the court below has committed no error in placing reliance on that documentary evidence in preference to the oral testimony of the witnesses. The conclusion reached by the Trial Court that the respondent had migrated to Pakistan before 1950 cannot, therefore be interfered with.
34. Since the respondent had migrated to Pakistan before the commencement of the Constitution he was not an Indian National and consequently there is no question of his ceasing to be an Indian National and a declaration being given in that connection by the Government of India.
35. This appeal is, therefore, allowed. (The judgment and order dated 4th December, 1968 passed by Additional District Magistrate, City, Aligarh, acquitting the respondent of the offence under para 7 (2) of the Foreigner's Order 1948, read with Section 14 of the Foreigners' Act are set aside. Instead, he is held guilty of the aforesaid offence. He is convicted of the same and is sentenced to undergo six months rigorous imprisonment. He shall surrender forthwith to serve out the sentence.