S.C. Mohapatra, J.
1. In this appeal against acquittal, the only question for consideration is whether the respondent is a Foreigner as defined in the Foreigners Act, 1946 (hereinafter referred to as 'the Act'). The trial Court has acquitted the respondent on the following finding :
'From the evidence as adduced by the prosecution it is not clear if the accused is a Foreigner and not 'an' Indian citizen. It is very difficult to determine the nationality of the accused.
Relying upon a decision of this Court reported in 32 (1966) CLT 634 (Sayad Abdul Hagua v. State) to the effect :
'This determination of the question of nationality of the party concerned has to be made not by the Courts but by the Central Government and before such determination is made the proceedings under Section 14 of the Foreigners Act are incompetent.'
The trial Court held that the prosecution report submitted against the accused is. not proper since that stage has not yet come in absence of a declaration of nationality by the Central Government.
2. Mr. P. K. Mohanty, the learned Public Prosecutor submitted that the order of acquittal of the trial Court is wholly misconceived end is contrary to Section 9 of the Act. There being no change of nationality, determination by the Central Government is not a pre-requisite for prosecuting the accused.
3. Mr. Ashok Mukherjee, the learned counsel engaged by this Court to defend the respondent at state expense has cited another decision of this Court reported in I. L. R. 1965, Cutt. 38 (State of Orissa v. Abdus Soran Khan) and submitted that the. accused having explained in his statement under Section 313 Cr. P. C. that he is an Indian citizen having remained in India for 40 to 45 years and the prosecution evidence being that the accused is seen in Khariar Road by the witnesses since 12 to 8 years, it is to be assumed that the accused is continuing to reside in India much prior to 26.1.1950, which satisfies the condition of citizenship under Article 5 of the Constitution of India.
4. The contention of Mr. Mukherjee has been directly answered by the Supreme Court in a decision reported in AIR 1974 S. C. 28 (Masud Khan v. State of Uttar Pradesh). It has been held :
'...There is no room for any. such presumption. Under Section 9 of the Foreigners Act whenever a question arises whether a person is or is not a Foreigner the onus of proving that he is not a Foreigner lies upon him The burden is therefore upon the petitioner to establish that he is a citizen of India in the manner claimed by him and therefore he is not a Foreigner...'
To the same effect are the decisions of this Court reported in ILR 1965, Cutt. 38 (supra) and 32 (1966) CLT 634 (supra). In ILR 1965 Cutt. 38 at page 40, it has been held :
'There can be no dispute that the onus is in the first instance, on the respondent to establish that he is a citizen of India and not a Foreigner.'
In 32 (1966) CLT 634 (supra) it has been held :
'...No doubt, under Sec, 9 of the Foreigners Act, the onus of proving that he is not such a Foreigner lies upon a person who claims it. But once some evidence is led to make out a prima facie case that a person was a citizen of India on 26.1.1950, it is for the other side to prove the contrary and make out a case that the accused had in fact given up his old domicile in India and has acquired a new domicile...'
It is thus, clear that the burden of proof is on the accused and where it is not discharged, it should beheld that he is a foreigner.
5. Ext.-1 discloses that the accused has contravened the provision of Section 3(2)(e)(iii) of the Act read with Notification No. 4/3/56-1. F. I. dated 19. 4.58 from the Ministry of Home Affairs,: Government of India for which he is made liable under Section 14. The accused was called upon to produce a valid passport for continuance in India.
6.Section 3(2)(e)(iii) authorises the Central Government to make an order providing that the foreigner shall comply with such condition as may be prescribed or specified requiring him to furnish such proof of his identity and to report such particulars to such authority in such manner and at such time and place as may be prescribed or specified. Ext. 1 is not an order made under Section 3(2)(e)(iii). The notification dated 19. 4. 58 of the Ministry of Home Affairs has not been produced in Court. Prosecution is required to prove that the Under Secretary to the State Government in Home Department is competent to issue the direction under Ext. 1. This has not beep done. No witness has proved these aspects of the matter also.
7. While the accused has not discharged the onus under Section 9, prosecution has also not proved the Notification dated 19.4.1958. The learned Magistrate has not examined the question carefully.
8. As the trial Court has not taken into consideration the real question to be decided in the case and has not taken into consideration, Section 9 of the Act, the order of acquittal is liable to be set aside.
9. Normally, in view of the failure of the prosecution to prove the ingredients of Section 14, the order of acquittal would have been confirmed. However, entry of Foreigners or their continuance in the Republic without authority is a menace and serious view of the same is to be taken. In that view of the matter, a departure has to be made from the criminal jurisprudence by putting the burden of proof on a person even if he is an accused to prove that he is an Indian citizen, if he claims it. This can be proved by cogent evidence. As records stand at present, the accused respondent not having proved that he is an Indian citizen to discharge the burden under Section 9, the acquittal if confirmed, would permit a Foreigner to continue in the Republic which is contrary to the scheme of the Act.
10. In the result, the appeal is allowed, the order of acquittal is set aside and the case is remitted back to the trial Court for fresh trial in accordance with law.