24 March 1964
Supreme Court


Case number: Appeal (crl.) 14 of 1963






DATE OF JUDGMENT: 24/03/1964


CITATION:  1965 AIR  618            1964 SCR  (7) 441

ACT: Foreigners  Act,  1946 (31 of 1946), ss. 2(a)  3.9  and  14- Whether  a  person  is  a foreigner has  to  be  decided  in relation to the time of the offence The fact that he was not a foreigner before the time of offence, not material-Onus of proof  on the accused-Citizenship Act, 1955 (LVII of  1955). s. 9(2).

HEADNOTE: The appellant, a Pakistani National originally came over  to India  on a Pakistani Passport and on the strength of  visa. He was found to be overstaying in India and he was  deported on  April  21, 1957.  Subsequently on finding him  again  in India he was charged with an offence of having entered India without  a  passport in contravention of s.  (2)(a)  of  the Foreigners  Act, 1946.  His defence was that he had been  in India  from  his birth and that the person who was  said  to have been deported in 1957 was some other and riot  himself. The  trial  court accepted this defence and  acquitted  him. The  State  appealed to the High Court and  the  High  Court reversed the finding of the lower court and held him  guilty of  the offence charged.  The present appeal was filed on  a special leave granted by this Court. The  first  contention of the appellant was  that  the  High Court was wrong in reversing the finding of the trial  court on the issue of the identity of the appellant.  Secondly  it was submitted that under s. 2(2) of the Foreigners Act as it stood before the Amendment which came into force on  January 19, 1957 the appellant though a Pakistani citizen was not  a "foreigner" and hence his entry into India before that  date would  not constitute an offence.  It was contended  further that the courts had no jurisdiction to determine whether the appellant  was  or  was not a foreigner  by  reason  of  the provision of s. 9(2) of the Indian Citizen-ship act 1955. Held:     The  appellant was the person who was deported  on April  21,  1957 and the finding of the High  Court  on  the question of his identity was correct. (ii) If  on the date when the offence is committed a  person is  "a  foreigner"  as defined by the Act, it  would  be  no excuse  for  him to say that on an earlier date he  was  not foreigner.   Since the appellant was deported in April  1957 and he came back to India subsequently without a passport he



was  a  foreigner under the amendment provision  which  came into  force  on January 19, 1957 had  committed  an  offence under s, 3 of the Foreigners Act. (iii)     Under s. 9 of the Foreigners Act the onus is  upon the person who is accused under the Act to prove that he  is not  a  foreigner.  It is only where there is proof  that  a person  is,  to  start with a citizen of  India  and  it  is alleged that he has lost his Indian Citizenship by reason of acquiring  the  nationality of the foreign  State  that  any question  of  invoking  the provisions of  s.  9(2)  of  the Citizenship Act arises.  In the present case the appellant a Pakistani national came to India originally with a Pakistani Passport  and after his deportation in April 1957 came  back to  India without a passport and hence he cannot  invoke  s. 9(2) of the Citizenship Act and lie had committed an offence under s. 3(2)(a) of the Foreigners Act. 442

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeals No. 14  of 1963.   Appeal by special leave from the judgment and  order dated  November 9, 1962 of the Rajasthan High Court in  D.B. Criminal Appeal No. 502 of 1961. S.   Shaukat Hussain, for the appellant. H.   R. Khanna and S. P. Nayar, for the respondent. March 24, 1964.  The Judgment of the Court was delivered by AYYANGAR,  J.-This  appeal, by special  leave,  against  the judgment of the High Court of Jodhpur raises for  considera- tion  the legality of the conviction of the appellant for  a contravention  of  s. 3 of the Foreigners Act (Act  XXXI  of 1946)  which  is an offence under s. 14 of  that  Act.   The relevant portion of s.   3 enacts: -               (3)  (1) The Central Government may  be  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  foreigners,   for               prohibiting  regulating  or  restricting   the               entry  of foreigners into India or  other  de-               parture   therefrom  or  their   presence   or               continued presence therein.               (2)   In  particular and without prejudice  to               the generality of the foregoing power,  orders               made  under this section may provide that  the               foreigner:-               (a)   shall  not  enter India or  shall  enter               India only at such times and by such route and               at  such  port  or place and  subject  to  the               observance  of such conditions on  arrival  as               may be prescribed-,               ...................................               Section 14 reads:               "14.  If any person contravenes the provisions               of  this Act or of any order made  thereunder,               or  any direction given in pursuance  of  this               Act  or such order, he shall be punished  with               imprisonment  for a term which may  extend  to               five  years and shall also be liable to  fine;               and if such person has entered into a bond  in               pursuance  of clause (f) of subsection (2)  of               section  3. his bond shall be  forfeited,  and               any person bound thereby shall pay the penalty               thereof, or show cause to the satisfaction  of



             the  convicting Court why such penalty  should               not be paid." 443 The  facts giving rise to the appeal are briefly these:  The case of the prosecution was that the appellant-Ibrahim,  s/o Miru-a  resident  of  Rajgarh  in  Bikaner  Division-was   a Pakistani national who had originally come over to India  on a  Pakistani  passport  issued to him in  1954  and  on  the strength  of a visa granted in December, 1956.  He was  then found to be overstaying in India since February 18, 1957 and an  order  was  thereupon  passed in  March,  1957  for  his deportation.   This order was given effect to and  on  April 21,  1957  be was taken across the Pakistan  border  at  the Check  Post  Munabao  by the  Indian  police  officials  and deported.  Then followed the events which have given rise to the  present proceedings.  Subsequent to his deportation  to Pakistan and on a date as regards which the prosecution  had no  information,  the appellant had, unknown to  the  Indian authorities, managed to come over to India clandestinely and he  was  found again in made a report to the  Station  House Officer of Rajgarh by  which he drew the latter’s  attention to  the  fact that the appellant who had been  deported  had managed  to cross the border on the side of  Ganganagar  and had re-entered India and he, brought this to his notice  for the  purpose  of  action  being  taken.   The  accused   was thereupon  apprehended  and was charged with an  offence  of having entered India without a passport in contravention  of s. 3(2)(a) of the Foreigners Act. The  defence  of the appellant was simple.  He said  he  had been  in India all the time since birth, had never  gone  to Pakistan and so had never come here in 1957 with a Pakistani passport,  was never deported therefrom and therefore  there was  no  question  of his having  entered  India  without  a passport.  in other words, his defence was that he  was  not the  person who had come over in 1957 and had been  deported to Pakistan in April 1957. In  support of their case the prosecution proved  the  order of Government by which Ibrahim, son of Meeru of Rajgarh  had been  directed to be deported in which is found a  reference to his having come over to India with a passport and  having overstayed the time permitted by the visa, the general diary of  the Emigration Check Post, Munabao dated April 21,  1957 which  recited that on April 21, 1957 the deportee  Ibrahim- had  come  with a Head Constable and  that  the  deportation order  had  been  given  effect to,  and  an  entry  in  the deportation  register  of the Check Post which  recited  the date and number of the Pakistani passport and the  authority by  which the order of deportation had been passed  and  the carrying  out  of  the  actual  deportation.   In  order  to establish  the  identity  of  the  appellant  with   Ibrahim mentioned  in these documents the prosecution  examined  two witnesses Shiv Rattan who was the Police Inspector in-charge of the 444 Munabao Check Post at the relevant date (P.W. 2) and  Govind Singh  who was a peon who was posted at the police lines  at Churn  and who accompanied Dube Singh, Head  Constable  when Ibrahim was taken from Rajgarh to the Check Post at  Munabao for  being  deported.  These two  witnesses  identified  the appellant  who  was present in Court Ibrahim whom  they  had seen off at the border Check- Post in execution of the order to  deport.   The  learned  Magistrate,  however,  was   not satisfied with this proof of identity, because he was of the view  that the two prosecution Witnesses--P.Ws 2 and  3could not, after the lapse of 4 years, be believed when they  said



that  they  remembered that the appellant was  Ibrahim  whom they  had  seen  deported at the Check  Post.   The  learned Magistrate also held that there was some discrepancy in  the father’s name of Ibrahim in one of the documents produced by the prosecution which, according to him, did not tally  with the  name of the appellant’s father.  On these  grounds  the learned Magistrate acquitted the accused. The  respondent-State  filed  an appeal to  the  High  Court against  this  order  of acquittal and  the  learned  Judges holding   that   there   could  be  no   doubt   about   the identification  by  P.W.s 2 and 3 of the  appellant  as  the Ibrahim  whom  they  had deported,  reversed  the  order  of acquittal  and  held  the appellant guilty  of  the  offence charged and sentenced him to a term of imprisonment.  It  is from this judgment of the High Court that the present appeal has been filed pursuant to leave granted by this Court. The  first point urged by learned counsel for the  appellant was  as regards the identity of the appellant with  Ibrahim. On this we are quite satisfied that the learned Judges  were correct  in their appreciation of the evidence in the  case. Both  the witnesses--P.W.s 2 and 3-are public  servants  and there  is no reason why they should depose  falsely  against the  appellant.   The documents produced  as  regards  which there  is no challenge give the name of the person  deported as Ibrahim, his father as Miru and besides, they specify his age   as  27  which,  it  is  conceded,  tallies  with   the description  of  the  appellant.  The only  point  that  was suggested  by  learned  Counsel  was  that  in  Ex.  P-1-the deporting  register at the Check Post-the name of  Ibrahim’s father  was  stated to have been entered as  Murra  and  not Miru.  When, however, it was pointed out to learned  Counsel during  the  course  of  the  arguments  that  there  was  a possibility  of  these words written in Urdu  being  wrongly transliterated  in  the  English  learned  Counsel  did  not persist in the point.  If then Ibrahim s/o Miru, aged 27 was deported  and  there  is evidence  adduced  which  has  been accepted  by the High Court that it was the  appellant  that was deported on the former occasion, we find no substance in the argument as regards this question of identity. 445 The  second submission of learned counsel was based  on  the fact  that  under s. 2(a) of the Foreigners  Act,  1946,  as originally enacted, a citizen of Pakistan which was a member of  the  British Commonwealth was not "a  foreigner"  within that Act :and that citizens of Pakistan became  "foreigners" only  by virtue of the amendment effected by Central Act  XI of  1957  which came into force on January  19,  1957.   The argument based on this feature was as follows: A person  who can  be  held  guilty  of a contravention of  s.  3  of  the Foreigners Act is only a "foreigner".  Even according to the case of the prosecution the appellant had come over to India on the strength of a Pakistani. passport issued in 1954  and under  a  visa of December, 1956.  It  must,  therefore,  be taken  that  he had crossed over to India  before  the  19th January, 1957.  On that date he was not a foreigner,  though a Pakistani, as he was a citizen of a Common-wealth country. He could not, in law, become a "foreigner" subsequently  and no action could be taken against him on the footing that  he had  become  a  "foreigner".   We  see  no  merit  in   this submission.   A  prima facie reading of the  Foreigners  Act would show that if on the date when the offence is committed a  person is a "foreigner", as defined by the Act, it  would be  no excuse for him to say that on an earlier date he  was not  a  foreigner.   But  it  is,  however,  unnecessary  to consider  this point further because, firstly, there  is  no



proof  on  the record before us that the  appellant  entered India before January 19, 1957.  But even if he had it  would only  mean that the earlier order of deportation  which  was passed  in  March/April  1957 was a  wrong  order  and  that certainly  is  not  a matter with which  we  are  concerned, because  it  is  common  ground,  if  the  identity  of  the appellant is held to be established, that the appellant  was deported to Pakistan in April, 1957.  He could come over  to India only subsequent to April, 1957 and if he did come over it  is  also  common  ground that he  came  over  without  a passport.   As the date upon which he could have  come  over was certainly after April, 1957 by which date s. 2(a) of the Foreigners Act containing the definition of "Foreigner"  had been  amended,  the appellant was a foreigner when  he  came into   India   without  a  valid  passport   and   visa   in contravention  of the provisions of s. 3 of  the  Foreigners Act,  and  that is the offence with which he  is  now  being charged.  We  find therefore that there is no  substance  in this point. Lastly,  it  was  submitted that the Courts  could  have  no jurisdiction  to  determine  whether  the  appellant  was  a "foreigner"  and that their jurisdiction in that regard  was barred by the provisions of s. 9(2) of the Citizenship  Act, 1955.  This argument proceeds upon a misapprehension of  the legal  position.   In  the first place, under s.  9  of  the Foreigners  Act the onus is upon the person who  is  accused tinder that Act to 446 prove that he is not a foreigner.  In the present case  once the plea regarding the absence of identity of the  appellant with  the deportee of April, 1957 was rejected it could  not be suggested that the appellant was ever an Indian  citizen. It  is only where there is proof that a person is  to  start with, a citizen of India and it is alleged that he has  lost his   Indian   citizenship  by  reason  of   acquiring   the nationality  of  a  foreign  State  that  they  question  of invoking  the provisions of s. 9(2) of the  Citizenship  Act arises.   That is not the case here.  The case of  the  pro- secution was that the appellant was a Pakistani national who had come over to India on a valid Pakistani passport in 1957 and  had been legally deported out of India in April,  1957. Or,  those  facts  there is no question of s.  9(2)  of  the Citizenship  Act  being invoked or coming  into  play.   The offence  charged was that having been deported once  out  of India,   he  again  entered  India  without  proper   travel documents  in violation of the provisions of s.  3(2)(a)  of the Foreigners Act. There  was one further point that was mentioned  by  learned Counsel  but which we did not permit him to argue.   Learned Counsel said that the order now passed was one by the  State Government  and  that there was no proof  that  the  Central Government had delegated this power to the State Government. Apart from the point being without substance in view of  the terms of s. 3(2)(a) we have extracted earlier, and which was the offence with which the appellant was charged, this point about  delegation  was never urged in the Courts  below  and consequently  no  evidence was led to  establish  delegation under s. 12 of the Act if that was necessary for  sustaining the prosecution in the present case.  As this point was  not raised  in  the Courts below we declined to  permit  learned Counsel to raise it before us. We  consider that the learned Judges were right  in  holding that  the  prosecution had established the  offence  charged against the accused. There  are no merits in the appeal which fails and  is  dis-



missed. Appeal dismissed- 447