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PETITIONER: FIDA HUSSAIN

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 05/04/1961

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. SINHA, BHUVNESHWAR P.(CJ) DAS, S.K. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1961 AIR 1522            1962 SCR  (1) 776  CITATOR INFO :  D          1963 SC1035  (8)  D          1972 SC2166  (4,5,8)

ACT: Foreigner-pakistan   entering   India  in   1953-Whether   a foreigner-Foreigners Act, 1946 (31 of 1946), s. 2 (a).

HEADNOTE: The  appellant was born in India before the  partition.   He left  for  Pakistan  and  returned to India  in  1953  on  a Pakistani  passport and Indian visa.  He did not  return  to Pakistan  before the expiry of the period for which  he  was permitted to stay in India under the visa.  He was convicted for  a breach of paragraph 7 Of the Foreigners Order,  1948, which  required every "foreigner" entering India  to  depart from  India before the expiry of the period during which  he was authorised to remain in India. Held, that the appellant was not a foreigner on the date  of his  entry  into India and his conviction was bad.   On  the relevant  date  the  appellant was a  natural  born  British subject  within  s. 1(1)(a) of the British  Nationality  and Status  of  Aliens  Act, 1914, and consequently  was  not  a foreigner as defined in s.    2(a)  of the  Foreigners  Act, 1946, as it then stood.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION:Criminal Appeal No. 129  of 1960. Appeal  by special leave from the judgment and  order  dated March  9,  1960,  of the Allahabad High  Court  in  Criminal Revision No. 697 of 1959. Naunit Lal, for the appellant. G. C. Mathur and C. P. Lal, for the respondent. 1961.  April 5. The Judgment of the Court was delivered by SARKAR,  J.-The  appellant  who  had  earlier  left   India, returned on a passport granted by the Government of Pakistan on May 16, 1953.  He had a visa endorsed on his passport  by

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the  Indian authorities permitting him to stay in India  for three  months  and this permission was later  extended  upto November 15, 1953.  He did not, however, return to  Pakistan within that date upon which he was convicted under s. 14 of 777 the Foreigners Act,, 1946, by a Sub-Divisional Magistrate on March  14, 1959, and sentenced to rigorous imprisonment  for one year.  His appeal to a Sessions Judge was dismissed  and the  High  Court at Allahabad, on being moved  in  revision, refused  to interfere with the order of the Sessions  Judge. This appeal is against the judgment of the High Court. The  appellant had been convicted for breach of paragraph  7 of  the Foreigners Order of 1948, issued under s. 3  of  the Foreigners   Act.   That  paragraph  requires   that   every foreigner  entering India on the authority of a visa  issued in pursuance of the Indian Passport Act, 1920, shall  obtain from  the  appropriate  authority a  permit  indicating  the period during which he is authorised to remain in India  and shall,  unless  that period is extended, depart  from  India before  its  expiry.   As earlier stated, the  visa  on  the appellant’s  passport showed that he had permission to  stay in India till November 15, 1953 but he stayed on after  that date.  Hence the prosecution. It is contended on behalf of the appellant that he could not be  convicted of a breach of paragraph 7 of  the  Foreigners Order  for that paragraph applies to a "foreigner"  entering India on the authority of a visa issued in pursuance of  the Indian Passport Act and overstaying the period for which  he is  permitted  to stay in India.  It is contended  that  the foreigner contemplated in this paragraph is a person who was a  foreigner  on  the date of his  entry  into  India.   The appellant says that on that date he was not a foreigner and, therefore,  the provisions of the paragraph do not apply  to him.   This contention of the appellant is plainly  correct. The  paragraph contemplates a foreigner entering India,  and therefore,  a  person  who at the date of the  entry  was  a foreigner. Now,  the  word  "foreigner" in paragraph  7  has  the  same meaning  as that word has in the Foreigners Act.   The  word "foreigner"  is  defined  in  that Act  in  s.  2(a).   That definition  has  changed  from  time to  time,  but  we  are concerned with the definition as it stood in 778 1953 when the appellant entered India, which was in these terms:               "foreigner" means a person who.........               (1)   is not a natural-born British subject as               defined in sub-sections (1) and (2) of Section               I  of  the British Nationality and  Status  of               Aliens Act, 1914, or               (2)   has  not been granted a  certificate  of               naturalisation as a British subject under  any               law  for  the time being in force  in  British               India, or               (3) is not a citizen of India. The  appellants  contention is that he was not  a  foreigner because he came within el. (1) of the definition as he was a natural-born  British  subject within s. l(l),  (a)  of  the British  Nationality  and Status of Aliens Act,  1914.   Now that provision is in these terms:               S.    1.  (1) The following persons  shall  be               deemed  to be natural-born  British  subjects,               namely,-               (a)  any  person  born  within  His  Majesty’s               Dominion and allegiance.

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That  the appellant was born at Allahabad at a time when  it was  within  his  Britannic Majesty’s  Dominion  is  not  in dispute.  That being so, we think that it must be held  that the  date  of  his  entry into India  the  appellant  was  a natural-born   British   subject  and,  therefore,   not   a foreigner.   He  could  not  have  committed  a  breach   of paragraph 7 of the Foreigners Order. In  the  result  we  allow the  appeal  and  set  aside  the conviction of the appellant and sentence passed on him. Before  leaving  this case we think it right to make  a  few more  observations.   The definition of a foreigner  in  the Foreigners   Act  was  amended  with  effect  from   January 19,’1957, by Act 11 of 1957.  The definition since that date is  as  follows: " "foreigner" means a person who is  not  a citizen  of  India".  Under s. 3(2), (e) of  the  Foreigners Act,  the Central Government has power to provide  by  order made  by it that a foreigner shall not remain in India.   We wish  to make it clear that we have said nothing as  to  the effect  of  the amended definition of a "foreigner"  on  the status of the                             779 appellant.   No  question as to the effect  of  the  amended definition  on the appellant’s status fell for our  decision in  this case for we were only concerned with his status  in 1953.  We would also point out that no order appears to have been  made concerning the appellant under s. 3(2)(c) and  we are  not  to be understood as deciding any  question  as  to whether  such  an order could or could not  have  been  made against the appellant. Appeal allowed.