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The State of U.P. Vs. Shamsul Huda - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1971CriLJ977
AppellantThe State of U.P.
RespondentShamsul Huda
Cases ReferredIn Kulathil Mammu v. State of Kerala
Excerpt:
.....did succeed in proving that a notice had actually been served upon the accused concerned and the learned single judge held that the prosecution failed to substantiate that the notice had been served upon the said person and it was, therefore, that benefit of doubt was given to the said accused and his conviction had been set aside. 6. the learned counsel for the respondent contends that in the instant case the prosecution has failed to prove the permit in question. ka-3, the extract of the movement register for pakistan nationals visiting direct from pakistan for the year 1963, and in the said extract as well the said permit has been referred to and it is embodied that the permit was valid upto 4-5-1963. both the said witnesses who referred to the said permit were not cross-examined on..........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 where he departs.if a foreigner contravenes the said provision then he is liable to be convicted under section 14 of the foreigners act. there is no provision in the foreigners act or in the foreigners order enjoining that before a person is prosecuted for contravention of the aforementioned provision of section 7(5)(iii) of the foreigners order or violates any provision contained in the foreigners act h notice calling upon him to leave india shall precede before he is prosecuted for the same. the aforesaid decision of the learned single judge was confined to the facts of the.....
Judgment:

K.C. Puri, J.

1. This appeal has been preferred by the State of Uttar Pradesh against the judgment and order dated 8-11-1968 passed by the Civil and Sessions Judge, Pratapgarh acquitting the respondent Shamsul Huda who was tried of offence Under Section 14 of the Foreigners Act and who had been convicted by the trial court of the said of-fence and was awarded two years' rigorous imprisonment.

2 Shamsul Huda according to the prosecution was a Pakistani national and had come to India on 5-4-1963 on a Pakistani passport dated 3-4-1963. On arriving in India he obtained permit for staying here upto 4-5-1963. On 29 4-1963 the said respondent got an entry recorded at P. S. Jethwara to the effect that he was going back to Pakistan on that day but he lingered on his stay in India even thereafter. It was, therefore, that he was prosecuted Under Section 14 of the Foreigners Act and was convicted and sentenced by the trial court as mentioned heretofore but his appeal was allowed by the Civil and Sessions Judge who set aside his conviction and sentence awarded to him and acquitted him.

3. The trial court had held that the respondent was a Pakistani citizen and had violated the permit granted to him by overstaying thereafter. The Civil and Sessions Judge who heard the appeal following the decision of a learned Single Judge of this Court in Mohd. Ilyas v. State (Criminal Revision No, 864 of 1966) (All) held that no notice had been given to the respondent to leave India and, therefore, he could not be convicted of the offence in question.

4. We have heard the learned Government Advocate and the learned Counsel appearing on behalf of the respondent.

5. From the evidence on record it transpires that it was on 5-4-1963 that the respondent had entered into India on a Pakistani passport dated 3-4-1963. He had thereafter obtained requisite permit which was to expire on 4-5-1963. The question concerning the citizenship of the respondent was determined by the Central Government when it was held that the respondent was a foreigner and was a citizen of Pakistan. Under Section 9(2) of the Citizenship Act, 1955 the said determination is final. In Kulathil Mammu v. State of Kerala : 1966CriLJ1217 it had been held:

Article 9 does not use the word 'migration' and deals only with voluntary acquisition of citizenship of a foreign State before the Constitution came into force. Cases of voluntary acquisition of foreign citizenship after the commencement of the Constitution have to be dealt with by the Government of India under the Citizenship Act, 1955.

Section 7(3)(iii) of the Foreigners Order, 1948 reads as under:

Every foreigner to whom a permit is issued under Sub-section (1) or sub-paragraph (2) 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 where he departs.

If a foreigner contravenes the said provision then he is liable to be convicted Under Section 14 of the Foreigners Act. There is no provision in the Foreigners Act or in the Foreigners Order enjoining that before a person is prosecuted for contravention of the aforementioned provision of Section 7(5)(iii) of the Foreigners Order or violates any provision contained in the Foreigners Act h notice calling upon him to leave India shall precede before he is prosecuted for the same. The aforesaid decision of the learned Single Judge was confined to the facts of the particular case before him. In that case the prosecution itself claimed that a notice had been served upon the accused of that case to leave India and the question for consideration was as to whether the prosecution did succeed in proving that a notice had actually been served upon the accused concerned and the learned Single Judge held that the prosecution failed to substantiate that the notice had been served upon the said person and it was, therefore, that benefit of doubt was given to the said accused and his conviction had been set aside. It has nowhere been laid down by the learned Single Judge that in a case where a person who has been declared a foreigner by the Central Government contravenes the provision contain-ed in the permit regarding the period of his stay in India, must be given a notice to leave India before he can be prosecuted Under Section 14 of the Foreigners Act. As mentioned above neither the Foreigners Act nor the aforesaid Foreigners Order provides that a person who is a foreigner and contra venes the provisions of the said Act or the said Order is to be served with a notice calling upon him to leave India before he can be prosecuted Under Section 14 of the Foreigners Act. The Civil and Sessions Judge was consequently wrong in acquitting the respondent on the ground mentioned heretofore.

6. The learned Counsel for the respondent contends that in the instant case the prosecution has failed to prove the permit in question. It is urged that the person who issued the permit has not stepped into the witness box to prove the same. On going through the record we find that P.W. 3 Ambika Prasad Upadhyay, Sub Inspector, has proved the said permit which is on the record. In the statement of the said witness the said permit has been referred to as Ext. Ka-5. Somehow or the other that exhibit has not been recorded on the permit which is there on the record. That is the only permit which is there on the record and which has been referred to in the statement of the witness. The same has consequently been fully proved. Again, P.W. 1 Ram Bilas Chaubey, Head Constable has proved Ex._ Ka-3, the extract of the movement register for Pakistan nationals visiting direct from Pakistan for the year 1963, and in the said extract as well the said permit has been referred to and it is embodied that the permit was valid upto 4-5-1963. Both the said witnesses who referred to the said permit were not cross-examined on the said point. Therefore, it is obvious that the permit which the respondent had obtained for staying in India was to expire on 4-5-1963 and he overstayed in India after the expiry of the permissible period. He was consequently rightly convicted and sentenced by the trial court.

7. We allow the appeal and set aside the order of acquittal passed by the learned Civil and Sessions Judge and maintain the order passed by the trial court convicting and sentencing the respondent as mentioned heretofore. The additional District Magistrate (Judicial) Pratapgarh shall ensure that the respondent suffers the said sentence. If the respondent is on bail then non-bailable warrant of arrest shall be issued by the said A. D. M. (J) against him and if he is apprehended he would be remandec1 to nail custody to suffer the said sentence.


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