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State Vs. Abdul Suttar Haji Ibrahim Patel - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtGujarat High Court
Decided On
Case NumberCriminal Appeal No. 563 of 1960
Judge
Reported inAIR1963Guj226; 1963CriLJ265; (1963)0GLR1073
ActsForeigners Act, 1946 - Sections 2, 9 and 14; Foreigners Order, 1948; Constitution of India - Articles 5, 7, 9 and 10; Citizenship Act, 1955 - Sections 3, 5, 8, 9(2) and 10; Evidence Act, 1872 - Sections 74
AppellantState
RespondentAbdul Suttar Haji Ibrahim Patel
Appellant Advocate H.K. Thakore, Asst. Govt. Pleader
Respondent Advocate S.B. Vakil, Adv.
DispositionAppeal allowed
Cases ReferredState of Bihar v. Kurnar Amar Singh
Excerpt:
criminal - acquittal - sections 2, 9 and 14 of foreigners act, 1946, foreigners order, 1948, articles 5, 7, 9 and 10 of constitution of india, sections 3, 5, 8, 9 (2) and 10 of citizenship act, 1955 and section 74 of evidence act - appeal against acquittal under section 14 - charge for failing to leave india after expiry of period during which respondent was permitted to stay in india - contravention of residential permit offence under section 14 - stay in india after expiry of period in residential permit and expiry of extended period - order of acquittal liable to be set aside. - - 322/57 from the registration officer, ahmedabad which permitted him to stay in india upto 12-12-1957, he failed to leave india. if yes (2) whether the prosecution have proved that he, failed to leave.....raju, j.1. this is an appeal by the state against the acquittal of respondent abdul sattar haji ibrahim by the learned judicial magistrate, first class, godhra in criminal case no. 1807 under section 14 of the foreigners act.2. the charge against the respondent was that having entered into india at ahmedabad on 13-10-57 under the authority of pakistani pass-port bearing no. 351544 dated 11-8-55 and 'c' visa bearing no. 22144 dated 5-10-1957 and having obtained residential permit no. 322/57 from the registration officer, ahmedabad which permitted him to stay in india upto 12-12-1957, he failed to leave india. it was also mentioned in the charge that the period of stay in india had been extended upto 12-1-1958 by the district magistrate, panchmahals and further extended upto 12-4-1958 by.....
Judgment:

Raju, J.

1. This is an appeal by the State against the acquittal of respondent Abdul Sattar Haji Ibrahim by the learned Judicial Magistrate, First Class, Godhra in Criminal Case No. 1807 under Section 14 of the Foreigners Act.

2. The charge against the respondent was that having entered into India at Ahmedabad on 13-10-57 under the authority of Pakistani Pass-port bearing No. 351544 dated 11-8-55 and 'C' Visa bearing No. 22144 dated 5-10-1957 and having obtained Residential Permit No. 322/57 from the Registration Officer, Ahmedabad which permitted him to stay in India upto 12-12-1957, he failed to leave India. It was also mentioned in the charge that the period of stay in India had been extended upto 12-1-1958 by the District Magistrate, Panchmahals and further extended upto 12-4-1958 by the Secretary to the Government of Bombay.

3. In his examinatipn at the trial, the respondent stated that he had committed no offence as he is a national of India and therefore, not bound to leave India. He also submitted a written statement and produced some documentary evidence and oral evidence. The documentary evidence and oral evidence led by him were for the purpose of inducing the Court to come to the conclusion that he was born in Godhra in India in 1936, that he was in school upto 30-11-1948, that he had certain dealings with the Forest Officers from 1951 to 1954 and to show that he had obtained an Indian Pass-port in 1954. The prosecution merely produced the pass-port, the application for Visa given by the accused at Karachi and the order of the Registration Officer, Panchmahals at Godhra showing that the period of stay in India was extended upto 12-4-1958. The residential permit issued at Ahmedabad by the Registration Officer, Ahmedabad when the respondent entered India at Ahmedabad was not produced, al-though it is referred to in the charge. This residential permit was, however produced as additional evidence at the instance, of the Court in Appeal.

4. The learned Magistrate framed the following points for determination;-

'(1) Whether the prosecution have provedthat the accused is a foreigner? If yes

(2) Whether the prosecution have proved that he, failed to leave India after the expiry of the period of residential permit granted to him by the Registration Officer, Panchamahals for the period ending 12-4-1958 and contravened the provisions of Clause 7 of the Foreigners Order 1948 and thereby committed an offence under Section 14 of the Foreigners Act, 1946?

(3) What order?'

On the first point, he held in the negative. He therefore, held that it was not necessary to decide the second point. The learned Magistrate held that the accused before him, namely the present respondent was a citizen of India on the 'date of the Constitution of India, having been born in India, that he had not migrated to Pakistan before 26-1-1950, that the word 'Migration' means making the place of destination a place of permanent abode', that the respondent had no intention of settling down in Pakistan and therefore, that he had not migrated to Pakistan and that the statements made by the respondent in his application for Visa that he was a national pf India and that he had migrated to Pakistan in 1948 were not true statements because it was not the intention of the respondent to settle in Pakistan. The learned Magistrate, therefore, held that the respondent, had discharged the burden of proof which was on him under Section 9 of the Foreigners Act. The learned Magistrate, also held that under Section 9 of the Citizenship Act, it was not open to any Court to decide the question whether when or how any person had acquired the citizenship of any other country because such, a question was to be determined only by the Central Government. He also held that the rule of evidence which was to be applied by the Central Government, viz., that the fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date was a rule of evidence to be applied by the Central Government and not a rule of evidence for a Court to apply. The learned Magistrate also ob-served that at the commencement of the Constituion, the respondent was a citizen of India and that there is nothing on record to show that his citizenship was terminated by the Central Governmerit. The learned Magistrate, therefore came to the conclusion that the prosecution has failed to prove that the accused is a foreigher and the therefore, held that the question whether be over stayed the period of permit did not arised. In the alternative, the learned Magistrate held that the residential permit originally given, permitting the stay in India upto 12-12-1957 had been extended upto 12-4-1958 and therefore as over staying is the period of Visa is no offence. He also held that the extension of the period by the Registration officer, Godhra was no proper because the period was not extended by the Central Government and there is nothing to show that the Registration officer, Godhra was empowered by the Central Government to extend the period of residential permit. He, therefore, held that the extension was unauthorised and hence, non-compliance with such an unauthorised order does not amount to an offence. He, therefore, held that the over-stay in India contrary to the unauthorised order of the Registration Officer, Godhra was not an offence. The learned Magistrate held that the prosecution has not made the act of over-stay after 12-12-1957 as the basis of the prosecution but that they made the act of over-stay after 12-4-1958 as the basis of the prosecution. He, therefore, held that the respondent did not commit an offence. For these reasons, the learned Magistrate acquitted the respondent. In appeal by the State this acquittal is challenged and it is contended that the whole legal approach of the learned Magistrate is wrong and that the acquittal based on such an erroneous legal approach should be set aside.

5. Section 14 of the Foreigners Act relates to the contravention by any person of the provisions of the Foreigners Act or of any order made thereunder or any direction given in pursuance of the Foreigners Act or such order. Clause 7 of the Foreigners Order which is an Order made under the Foreigners Act reads as follows:-

'Every foreigner who enters India on the authority of a Visa issued in pursuance of the Indian Passport Act, 1920 shall obtain from the Registration Officer having jurisdiction, either at the place at which the said foreigner enters India or at the place at which he presents a registration report in accordance with rule 6 of the Registration of Foreigners Rules, 1939 a permit indicating the period during which he is authorised to remain in India and 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 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: provided that this requirement shall be deemed to have been complied with by a foreigner who enters India as a 'Tourist' is granted a certificate of Registration in Form 'D' a provided for in the Registration of Foreigners Rules, 1939.'

6. In view of the charge under Section 14 of the Foreigners Act, the points for determioation which arise in such a prosecution and which have to be stated in the judgment under Section 367 of the Criminal, Procedure Code are as follows:-

1. Whether the respondent was a foreigner on 13-10-1957?

2. Whether he entered India at Ahmedabad on 13-10-1957 on the authority of a Visa issued in pursuance of the Indian Pass-port Act, 1920?

3. Whether he obtained from the Registration Officer having jurisdiction residential permit No. 322/57?

4. Whether that residential permit indicated that the respondent was authorised to remain in India until 12-12-57?

5. Whether the respondent contravened the residential permit issued under Clause 7 of theForeigners Order, 1948 by over-staying the period during which he was permitted to remain in India by the residential permit?

6. If the period mentioned in the residential permit was extended, was it validly extended?

7. Did the respondent depart from India before the expiry of such a validly extended period?

8. Whether the respondent is guilty under Section 14 of the Foreigners Act?

7. Our answers are as follows:- Points I to 5 and 8 in the affirmative. Point 6 in the nagative. Point 7 does not survive.

8. Before we turn to the evidence and discuss the above points for determination, it is necessary to bear in mind the provisions of Section 9 of the Foreigners Act, 1946, which reads asunder:

'If in any case not falling under Section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 lie upon such person.' The first point for determination is whether the respondent was a foreigner on 13-10-1957. But in view of Section 9 of the Foreigners Act, the burden would be on the respondent to show that he was not a foreigner and in view of the definition of 'foreigner' contained in Section 2 of the Foreigners Act, that he was a citizen of India. In Section 2 of the Foreigners Act, 'foreigner' is defined as meaning 'a person who is not a citizen of India.' The burden is, therefore, on the respondent to prove that he was a citizen of India on 13-10-1957. At this stage, it is necessary to turn to the relevant provisions m the Constitution of India and the Citizenship Act referring to citizenship. Article 3 of the Constitution of India provides that -

'At the commencement of this Constitution, every person who has his domicile in the territory of India and -

(a) who was born in the territory of India; or

(b) either of whose parents was born in the territory of India; or

(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement,

shall be a citizen of India.'

Article 6 refers to the rights of citizenship of certain persons who have migrated to India from Pakistan and it is not necessary to refer to this Article for the purpose of this appeal. Article 7 of the Constitution of India so far as relevant provides as under:

'Notwithstanding anything in Articles 5 and 6, a person who has after the first day of March 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India.' It is not the case of the respondent that his case falls under the proviso to Article 7 of the Constitution. It is, therefore, not necessary to consider the proviso to Article 7 of the Constitution. Article 8 is not relevant for the purpose of this Appeal. Articles 9 10 and of the Constitution ate also important and they read as follows:.

'9. No person shall be a citizen of India by virtue of Article 5, or be deemed to be a citizen of India by virtue of Article 6 or Article 8, if he has voluntarily acquired the citizenship of any foreign State.

10. Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such a citizen.

11. Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship'.

Article 10 of the Constitution provides that every person who is deemed to be a citizen of India under the Constitution shall continue to be such citizen, subject to the provisions of any law that may be made by Parliament. But on the question as to who is a citizen of India on the date of the Constitution, the Constitution is the sole law. The Citizenship Act refers to citizenship after the commencement of the Constitution and on the question as to who is a citizen of India on the date of the Constitution, we have to read for purposes of this appeal Articles 5, 7 and 9 of the Constitution together because while Article 5 provides that certain persons shall be citizens of India, Article 7 provides that notwithstanding anything in Articles 5 and 6, a person shall not be deemed to be a citizen of India in certain cases. Similarly, in Article 9 of the Constitution, there is a reference to Article 5. Therefore, even if a person satisfies the requirements of Article 5 of the Constitution he would not be a citizen of India, if he has voluntarily acquired the citizenship of any foreign State. It is, therefore, clear that in both these articles viz. Articles 7 and 9, the reference is to the period before the Constitution. Under Article 7 of the Constitution, a person who has after the first day of March 1947 and before the date of the Constitution, migrated from the territory of India to the territory of Pakistan shall not be deemed to be a citizen of India, notwithstanding that he fulfills the requirements of Article 5. Similarly, it is provided in Article g of the Constitution that although a person satisfies the requirements of Article 5, he would not be a citizen of India on the date of the Constitution, if he has voluntarily acquired the citizenship of any foreign State before the date of the Constitution. This interpretation of Articles 7 and 9 is not challenged by the counsel for either side. In fact the learned counsel for the respondent has cited Firoz Meharuddin v. Sub-Divisional Officer, Mahasamund, AIR 1961 Madh Pra no in support of the view that we have taken. Therefore, a person who wants to prove, as one of the steps of his case, that he was a citizen of India on the date of the commencement of the Constitution has to prove that he satisfies the requirements of Article 5 and that he does not incur the disqualifications mentioned in Article 7 or 9 of the Constitution. It is only if these three conditions are together satisfied that a person would be a citizen of India on the date of the Constitution, We have to read Articles 5 7 and 9 together for the purpose of deciding this question. As already observed, this is not a case to which Article 6 01 the proviso to Article 7 or Article 8 of the Constitution applies. For the above reasons we reject the contention that once an accused proves that he satisfies the requirements of Article 5 he need not prove anything else and that the burden is on the State to prove that accused had migrated from India to Pakistan after 1-3-1947 or that accused had voluntarily acquired the citizenship of any foreign State before 26-1-1950.

9. It is also contended that if accused proves that he was a citizen of India on 26-1-1950, it must be presumed that he continues to be a citizen of India till 13-10-1957 and that the burden is on the State to show that he had ceased to be a citizen of India after 26-1-1950 and before 13-10-1957.

10. Article 10 of the Constitution provides that:

'Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen'.

This Article does not deal with a presumption but it provides for the continuity of the status of citizenship subject to the provisions of any law that may be made by Parliament. The Citizenship Act of 1955 made by Parliament provides for citizenship of India after 26-1-1950 by acquisition in five different modes. Namely birth, descent, registration, naturalisation, etc. It also provides for termination of citizenship by renunciation or by voluntarily acquisition after 26-1-1950 of the Citizenship of another country and also by deprivation of citizenship. Therefore under the Citizenship Act of 1955 citizenship terminates in three different modes for three different reasons. Article 10 of the Constitution is in terms subject to the provisions of the Citizenship Act of 1955 Sub-section (i) of Section 9 of the Citizenship Act, 1955 provides that--

'If any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf'.

But the questions whether a person has renounced his citizenship under Section 8 of the Citizenship Act and whether a person has been deprived of his citizenship under Section 10 of the Citizenship Act, 1955, are matters to which Section 9(2) of the Citizenship Act does not apply and they can be decided by Courts.

11. In the instant case, even if the accused had succeeded in proving that he was a citizen of India on 26-1-1950, what he must prove is that he was a citizen of India on 13-10-195?. and for doing so he must prove that he never renounced his citizenship upto 13-10-1957, that he was not deprived of his citizenship upto 13-10-1957 and that he had not voluntarily acquired the citizenship ofanother country before, 13-10-1957. Questions which arise in this, case have already been set out and one of them is not whether, when or how accused has acquired the citizenship of another country. Whenever, a question is to be decided, by a Court, a, fact may be proved as relevant fact, although the relevant fact was not one of the questions to be determined. It is a debatable point whether Section 9(2) of the Citizenship Act, 1955, prohibits the use in a Court as evidence, of the fact that a person voluntarily acquired the citizenship of another country, as, a relevant fact when the question before the Court, is not whether, when or how a person had voluntarily acquired the citizenship of another country. This section also doesnot prohibit the use in Court of the fact that theproper, authority namely the Central Governmenthas determined under Section 9(2) of the Citizenship Act,'1955 that the accused has not voluntarily acquiredthe citizenship of another country between 26-1-50 and 13-10-1957. It is true that averments thataccused had not renounced his citizenship and hadnot been deprived of his citizenship upto 13-10-57.are negative averments but in the case of provingnegative averment, though, the burden of proof islight, the burden is on the person making theaverments.

12. In order to prove that the respondent satisfied the requirements of Article 5 of the Constitution, the respondent led evidence to show that he was born in the territory of India in 1936 and for this purpose, he examined a clerk in Iqbal High School to prove Ex. 13 a Certificate issued by the Head Master of that school. In that certificate, it, is stated that the informaion in the Certificate is in accordance with the school register. If the school register was relevant under Section 35 of the Evidence Act, an entry in that register has to be proved either by producing the original entry or producing secondary evidence of that entry. A certificate such as the one which is Ex. 13 cannot be said to be secondary evidence of that entry, Different kinds of secondary evidence ara mention-ed in Section 63 of the Evidence Act.' If the registeris a public document, then Only a certified copy of the entry would be admissible under Section 65(6) or (f) of the Evidence Act.

13. Ahmedmiya the defence witness (Ex. 12) has doposed that the contents of Ex. 13 are true and correct. The witness was apparently examine-ed in order to prove the Certificate and he obviously could not have had any knowledge of the truth or otherwise of the entries in Ex. 13. If he had personal knowledge of the fact that the respondent was born in Godhra in 1936, the witness would have stated so in his examination-in-chief. Wit-ness Akramulla, the Head Master of Polan Bazar Urdu School has also deposed that the respondent's name was entered: at Section R. No. 165 in the register of students of the school in which he was admitted on 2-5-1942 and he bad left the school on 1-5-1945. He produced the Certificate Ex. 28 given from that register. He added that the: con-tents of the Certificate. 'Ex 28 are true and conrect. But in addition this witness stated that the birth place of the respondent is at Godhra. The witness appears to be basing his evidence on the contents of the Certificate. It is difficult to believe that a Head Master knows the places of birth or the dates of birth of the students whocome to study in the school.

14. Although evidence as to the place of and the date of birth of the respondent is not satisfactory, we are not prepared to interfere with the acquittal on that ground. For the purpose of this appeal, therefore, we will treat it as proved that the respondent was born in India at Godhra in 1936.' In view, of this act the respondent would be satisfying the requirements of Article 5, of the Constitution. ' But that would of make, him a citizen of India on the date of the Constitution, unless it is proved that he does not suffer from the disqualifications mentioned in Articles 7 and 9 of the Constitution. As the burden is on the respondent to show that he was a citizen of India on 13-10-1957 and as for that purpose the respondent wants to prove that he was a citizen of India on the date of the Constitution, it is for the respondent to prove that he did not incur the dis-qualifications, mentioned either in Article 7 or Article 9 of the Constitution, in other words, that he did not migrate from the territory of India to Pakistan after 1-3-1947 ,and further that he had not voluntarily acquired the citizenship of any foreign State; before 26-1-1950. In his examination at the trial, the accused did not say that he had not migrated to Pakistan after 1-3-1947 and before 26-1-1950. He, however, stated that be was a national of India and he submitted a written statement in which, however, it is state that for, the first time he went to Pakistan in 1954. There is also no statement anywhere in his examination or in his written statement that he had not voluntarily acquired the citizenship of any foreign State. It is also not in the evidence of any of the defence witnesses that the respondent had not voluntarily acquired the citizenship of any foreign State. It is true that the issue would be in the negative form and sometimes such a negative issue may be proved by mere assertion on the part of the per son concerned so as to shift the burden of proof on the other side. In this, case, there is not even an assertion by the respondent that he had not voluntarily acquired the citizenship of any foreign State. He therefore, failed to prove, that he did not suffer, from the disqualifications mentioned in Article 9 of the Constitution.

15. As regards the disqualifications mentioned in Article 7 of the Constitution, no doubt, he has mentioned in his written statement that for the first time he visited Pakistan in 1954. But the prosecation adduced in evidence the application made by the respondent when he applied for a Visa. This application is at Ex. 6 and it is dated 4-10-1057. In that application, the respondent has stated that his place of birth is Godhra, that his nationality is Pakistan that he holds a Pakistani passport issued by the Government of Pakistan bearing No. 351544 dated 11-3-1955 and that the object of his visit to India was to attend the burial ceremony of one deceased Mamoon. In that application, the respondent has also stated that he had migrated from India to Pakistan in 1948. In his written statement, the respondent stated that his father-in-law had taken his signature on a printed English form and that the facts stated in the Visa application are wrong. He also added that the typed information was not filled, in byhim as he does not know haw to write or speak English. According' to the respondent, the; facts stated in his Visa application are wholly wrong.He stated that the fact stated in the Visa application that his nationality in Pakistan is wrong. He also added that the fact stated in that application that he migrated in 1948 was totally wrong. Ac-cording to him he had been cheated by his father-in-law who took away his Indian Pass-port. The statements contained in the Visa application are admissions made by the respondent. No doubt, an admission is not conclusive, and may be proved to be mistaken or incorrect. It is easy for the respondent to say that all the statements made by him in his Visa application are false and that he had been cheated by his father-in-law who had taken away his Indian pass-port. But the pass-port which had been produced shows that after the pass-port was issued on 11-8-1935, on the authorty of that pass-port the respondent visited India several times. The first Visa he obtained was dated 37-9-1955. He departed from Pakistan on a 12-10-1955 and catered India at Ahmedabad on 12-10-1955 accompanied by his wife and children. The departure and entry visas are found on page 8 of the pass-port. On 18-1-1955 he left India ac-companied, by his wife and children and he entered Pakistan on 18-11-1955. These visa entries are found on page, 9 of the pass-port. Then he obtained another Visa on 22-11-1955. He left Pakistian on 27-11-1955 and entered India at Ahmedabad on the same date. He left India on 21-2-1956 and reached Pakistan on the same date. He obtained a third Visa on 3-7-1956 and the Visa was not valid for his wife. He left Pakistan on 5-7-1956, and entered India on the same day. He left India , on 25-7-1956 and entered Pakistan on 26-7-1956. Another Visa was given to him on 28-1-1957. He left Pakistan on 1-2-1957 and entered India at Ahmedabad on the same date. He left India on 16-3-1957 and entered Pakistan on 18-3-1957. Then the last visa obtained by him was dated 5-10-1957. He entered India at Ahmedabad on, 13-10-1957 and he was given residential permit No. 322/57 permitting him to stay upto 12-12-1957. The issue of this residential permit is noted on page 24 of the Visa. It is, however, contended by the learned counsel for the respondent that these entries in the pass-port have not been proved. The original pass-port has been produced and every one of these entries in the pass-port would be a public document under Section 74 of the Evidence Act as constituting an act or the record of the acts of public officers. It is, however, contended that the Visa Officer of the Indian High Commissioner at Karachi is not an Officer of any part of India. The Visa bears the stamp and the seal of the Government of India. The Visa Officer of the. Government of India who issues a Visa is an officer of the Government of India and the Visa issued by him would be a public document within the meaning of Section 74 of the Evidence Act. 'Under Section 74, even the record of the acts of an officer of a foreign, country would be a public document. We, therefore, reject the contention of the learned counsel for the respondent that the various entries in the pass-port viz. entries of entry and exit in the Visas have not been proved. In view of, these facts which are recorded in the pass-port, it is clear that the defence raised by the respondent is transparently false.. It he Was really a citizen of India, having entered. India on a Pakistani pass-port, he could, have approached the Indian authorities for an Indian pass-port any' of the' four or five occasions when he entered India after 1955. In fact, he used his Pakistani pass-port four or five times between 1955 and 1957. It is, therefore, obvious that the explanation given by the respondent is clearly false. In these circurmstances the admissions contained in his application for Visa would have great value. It is true that the respondent has produced a Certificate of the school showing that he was in Godhra upto 30-11-1948. This Certificate does not prove where the respondent was after 30-11-1948.. The respondent has also examined two officers of the Forest Department, viz. Chandanmal Ex. 14 and Shantilal Ex. 25. He has also relied on various documents from the Forest Department But all these documents relate to the period subsequent to 1951 and do not show that the respondent had not migrated to Pakistan in 1948 or1949. The respondent has also examined oneChimanlal, Ex. 29 who is in the service of thePatel Saw Mill one of the partners of which isthe father of the respondent. According to thiswitness, in 1948 there were not and at that timethe wife and the father-in-law of the respondedwent to Pakistan. According to this 'witness, therespondent did not go to Pakistan before 1954 andwent in July or August 1954. But this witness isObviously an interested witness as he is a servantof the father of the respondent and in his cross-examination, the witness has stated that he didnot know if the respondent came to India on 2-10-1955, on 27-11-1955 or on 1-2-1957. This witnesshas, therefore, no personal knowledge of the move-ments of the respondent and was brought to giveevidence on a point which the respondent had toprove. It is, therefore, clear that the evidence ofthis witness should be rejected. The respondenthas produced several documents to prove his pre-sence in India between 1951 and 1954, but he hasproduced no document whatsoever to prove hispresence in India in 1919 and after 30-11-1948. Inthese circumstances the statement made by him inhis Visa application that he had migrated to Pakistan from India in 1948 does appear to be true andin any case, the burden is on the respondent toprove that he had not migrated to Pakistan after1-3-1947 and Before 26-1-1950. This burden, forthe reasons already given, the respondent has miserably failed to discharge.

16. It is also chear that the respondent hasfailed to prove that by reasons of Articles 5 7and 9 of the Constitution of India, he was a citizen of India on the date of the commencement of.the Constitution of India.

17. It is also contended by the learned counsel for the respondent that once the requirement of Article 5 of the Constitution of India are proved to have been satisfied by the respondent, the burden is on the State to prove that he has incurred the disqualifications mentioned in Article 7 or Article 9 of the Constitution. As already observed, Articles 7 and 9 provide something notwithstanding the provisions of Article 5 of the Constitution Therefore, Articles 5, 7 and 9 have to be read together and it is only after all these requirements are satisfied that a person can be held to be a citizen of India on the date of the commencement of the Constitution. If a person says that he was a citizen of India on the date of the commencement of the Constitution of India, the burden would be on him to prove that he is a citizen of India by reasons of Articles 5 7 and 9 of the Constitution of India, in other words, that he satisfies the requirements of Article 5 and that he does not suffer from the disqualifications mentioned in Articles 7 and 9 of the Constitution of' India.

18. It is also contended by the learned counsel for the respondent that in 1948, 1949 and 95 the respondent was a minor and that, therefore, there can be no migration on the part of a minor. A minor may not be able to contract but there is nothing in the Constitution to show that a minor cannot migrate. The idea of migration in Article 7 has also nothing to do with domicile as stated by their Lordships of the Supreme Court in State of Bihar v. Kurnar Amar Singh : [1955]1SCR1259 where their Lordships observed as follows:

'Kumar Rani went to Karachi in July 1948. Her story that she went there temporarily for medical treatment has been doubted by the High Court and appears to us to be unfounded. Where she came to India in December 1948, she did so on a temporary permit stating in her application for the said permit that she was domiciled in Pakistan and accordingly representing herself to be a Pakistani national. She went back to Pakistan in April 1949, on the expiry of that temporary permit. She made an attempt to obtain a permit for permanent return to India only after steps had been taken to vest the property in the Custodian and after the same was taken possession of. There can be no doubt on these facts that she must be held to have migrated from the territory of India after 1-3-1947. Even if therefore Article 5 can be said to be applicable to her on theassumption that Captain Narayan Singh was her husband and that her domicile was that of her husband, the facts bring her case under Article 7. Article 7 clearly overrides Article 5. It is peremptory in its scope and makes no exception for such a case, i.e. of the wife migrating to Pakistan leaving her husband in India. Even such a wife must be deemed not to be a citizen of India unless the particular facts bring her case within the proviso to Article 7'.

Witness Chimanlai has deposed that the father of the respondent is one of the partners of the Patel Saw Mill. This witness gave evidence in March 1960. It is admitted by the learned counsel for the respondent that the father of the respondent is still alive. In 1948 or 1949 the respondent may have been about 13 or 14 years old. But he was in a position to form an intention. He could have tommitted an offence. He could also have formed an intention of going to Pakistan permanently. Either he must have gone to Pakistan with the permission of his father, in which case it would be a migration with the consent of his father or it he had migrated to Pakistan without the consent of his father, it would show that he had terminated the guardianship of his father and had himself independently gone to Pakistan. The fact that he had migrated to Pakistan was admitted by him by voluntary statements made by him in his application for Visa in the year 1957 when he was a major. He applied for Visa four or five times between 1955 and 1957 and he had used the Pakistani pass-port several times during the period between 1955 and 1957. These facts clearly, show that his intention was to remain in Pakistan as a Pakistani national and that his intention was not to make a short stay in Pakistan, If he migrated in 1948, it would be difficult to hold that he had no intention of migrating to Pakistan, when it a clear from the facts that except for brief visits to India, he was in Pakistan till 1957. We, therefore reject the contention of the learned counsel for the respondent that the disqualifications contained in Article 7 of the Constitution would not affect the respondent as he was a minor in 1948.

19. It is next contended by the learned counsel for the respondent that there is evidence to show that the respondent had an Indian passport with him in 1954. On this point, the learned counsel for the respondent relies on the evidence of one Shashikant, a clerk in the Collector's Office at Godhra and the evidence of Khasaba, serving in the Special Branch of the C. I. D. at Bombay. The first witness has deposed that be has no personal knowledge and that he made confidential inquiry. His evidence, therefore, is clearly hearsay and should be rejected. The second witness Khasaba has deposed that a register is maintained in his office, of persons going from India to Pakistan with a pass-port. He has deposed that he had brought the register of 1954. A pass-port is issued by a pass-port Officer. The issue of a pass-port must therefore, be proved by the prodoction of the pass-port or by the evidence of an officer from the Pass-port Office. If the pass-port is not available, secondary evidence can be given of the pass-port. The officer who issued the passport may also depose that he had issued a passport and in order to refresh his memory, he can look at any entries or registers kept by him and satisfying the requirements of Section 159 of the Evidence Act. Even assuming that an officer had issued a pass-port, he can refresh his memory by looking at the register kept by him in his office In this case, the entry in the register kept by the police at Bombay is neither secondary evidence of the pass-port nor evidence of the officer who issued a pass-port. It was open to the respondent to produce an officer from the Pass-port Office. It is not impossible that forged pass-ports are taken to Bombay and shown to Police Officers who may, be checking emigrants and immigrants. The evidence of this witness has, therefore, no value. Moreover the evidence of the witness does not establish that a pass-port was issued to the very respondent. No doubt, he refers to Abdul Satar brahirn, but in Bombay there may be many Abdul Satar Ibrahims. For both these reasons there is no doubt that in this case the respondent has failed to establish that an Indian pass-port had been issued to him in 1954 or at any time. In view of this finding,, it is unnecessary to consider the question whether Sub-section (2) of Section g at the Citizenship Act refers only to relevant facts of only to facts in issue because it is possible to take the view that Sub-section (2) of Section 9 would not apply where the fact whether a person has acquired the citizenship of another country is not a fact in issue but merely a relevant fact. It is also not necessary to decide the question whether Sub-section (2) of Section 9 would apply to a case where the question before the Court is not whether a person has acquired the citizenship of another country but whether a person has not acquired the citizenship of another country. In the instant case, the burden is on the respondent to show that he was a citizen of India on 13-10-1957 and that he had not acquired the citizenship of any other foreign country during this period. We are, therefore, of the opinion that the finding of the learned Magistrate that the respondent is not a foreigner is the result of a wrong approach to the whole case and that the learned Magistrate also erred in holding that the respondent had discharged the burden cast on him under section 9 of the Foreigners Act. On the evidence and on the law, we have no doubt whatsoever that the respondent has failed to discharge the burden that he was not a foreigner on 13-10-1957.

20. Having held that he was a foreigner on 13-10-1957, it is necessary to consider the other points for determination. The fact that the respondent entered India on a Pakistani pass-port and the Visa issued under the authority of a Pakistani pass-port and the fact that he catered India at Ahmedabad on 13-10-1957 are proved by the prosecution evidence and are admitted by the respondent. They are also admitted in the written statement of the respondent, which is Ex. 9. That the respondent was given a residential permit by the Registration Officer at Ahmedabad on 13-10-1957 is also proved by the prosecution evidence and by the residential permit.

21. But it is contended that the prosecution has not proved the residential permit. The residential permit is clearly a public document being an act or the record of the acts of the Registration Officer. It is, therefore, a public document and the original residential permit has been produced. That is a sufficient proof of the residential permit. In the residential permit it is clearly stated that Mr. Abdul Sattar Haji Ibrahim Patel, a foreigner of Pakistan nationality holding Pakistani pass-port No. 351544 dated 11-8-1955 issued at Karachi, bearing Visa No. 22143-44 dated 5-10-1957 issued at Karachi for India is permitted to remain in India until 12-12-1957. This residential permit, therefore, clearly complies with the requirements of Clause (7) of the Foreigners Order. According to this permit, therefore, the respondent was not authorised to remain in India after 12-12-1957. The prosecution has proved that the respondent continued to stay in India after 12-12-1957 right upto the date of the trial in 1960 and this fact is admitted by the respondent and by his learned counsel.

22. It is, however, contended by the learned counsel for the respondent that the charge does not relate to a contravention of the residential permit. The charge reads as follows:-

'That you being a foreigner and a national of Pakistan and having obtained a pass-port No. 351544 dated 11-8-55 from the Govt. of Pakistan and obtained 'C' visa No. 22144 dated 5-10-57 entered India on 13-10-57 at Ahmedabad and obtained residential permit No. 322/57 valid upto 12-12-1957 and you got it extended upto 12-1-1958 from D. M., Punchmahals and got it further extended upto 12-4-1958 from Secretary to Govt. of Bombay and also obtained a residential permit valid upto 12-4-1958 from the Registration Officer, Punchmahals, and you failed to leave India after the expiry of the period so granted and contravened the provisions of Clause 7 of the Foreigners Rules 1948 and thereby committed an offence under Section 14 of the Foreigners Act 1946 and thereby committed an offence punishable under Section 14 of the Foreigners Act and within this Court's cognizance.'

There is a reference in the charge to the residential permit No. 322/57 and substantially the charge is for failing to leave India after the expiry of the period during which the respondent was permitted to stay in India and reference is made to the residential permit No. 322/57 and also to the order of extension by the District Magistrate, Punchmahals. Under clause (7) of the Foreigners Order, the period mentioned in the residential permit can be extended by the Government of India. If the extension was invalid, a mere reference to the invalid extension in the charge does not make the charge anyway defective because the charge does refer to residential permt No. 322/57 which is perfectly valid. Any contravention of the residential permit would, therefore, be an offence under Section 14 of the Foreigners Act. The charge contains a reference to the residential permit and to the fact that the respondent stayed in India after the expiry of the period for which he was permitted to stay in India and is therefore, a sufficient charge. Reference to the extension may be ignored if the extension was given by an authority who had no authority to do so. If the authority in question, viz. the Assistant Secretary to the Government of Bombay who had given the extension upto 12-4-1958 had the authority to do so, then it can be said that the period of permissible stay in India was extended from 12-12-1957 to 12-4-1958 and any stay in India after 12-4-1958 would be a contravention of Clause (7) of the Foreigners Order and therefore, would be an offence under Section 14 of the Foreigners Act. Whether we take the view that the extension upto 12-4-1958 from 12-12-1957 was authorised or not, by reason of the fact that the respondent admittedly continued to stay in India after 12-12-1957 upto the date of the trial in 1960 he would be guilty of an offence under Section 14 of the Foreigners Act, by reason of the fact that he contravened the residential permit and by reason of the fact that he stayed in India after the expiry of the period mentioned in the residential permit and also after the expiry of the extended period, even assuming that the period was validly extended upto 12-4-1958. Any fair reading of Clause (7) of the Foreigners Order would indicate that the person who stays in India either after the period mentioned in the residential permit or after the period to which the permit may have been vatidly extended, would be guilty of contravention of Clause (7) of the Foreigners Order and therefore, would be guilty under Section 14 of the Foreigners Act. In these circumstances, we have no doubt whatsoever that the respondent was guilty of an offence under Section 14 of the Foreigners Act and that the learned Magistrate by reason of a wrong approach to the facts as well as to the law, has erred in acquitting the respondent.

23. It is true that this is an appeal from acquittal and ordinarily, Courts -would be slow to interfere in art appeal from acquittal. But this is a matter of general importance and national importance. Foreigners who are allowed to enter India must comply with the residential permit Issued to them and if they fail to do so they must be convicted of the offence constituted by such failure. The whole approach of the learned Magistrate towards the law and the evidence is wrong for the reasons already given above and we, therefore, feel that this is a fit case in which we should interfere. In this case the period of over-stay has been for about 2 years.

24. We, therefore, interfere with the order of acquittal passed by the learned Magistrate, allow this appeal, convict the respondent under Section 14 of the Foreigners Act and sentence him to sufferrigorous imprisonment for one year and to pay a fine of Rs. 1000/-, in default rigorous imprisonment for one year. Warrant for arrest to issue and warrant under Section 383 Cri. P. C. to issue.


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