Judgment :- 1. This is a petition under Art.226 of the Constitution of India for the issue of a writ of Habeas Corpus or other direction in the nature thereof directing the respondents to produce Sri A. K. Aboobaker before Court and to order that he be set at liberty. 2. On 5th November 1964 a notice Ex. P-1 under S.3 (2) of the Foreigners Act, 1946 was served on the said Aboobaker directing him not to remain in India on pain of action being taken against him and the same day he was arrested for the purpose of deporting him to Pakistan. This petition has been filed on his behalf challenging the validity of the order. It is stated in the affidavit filed in support of the petition that Aboobaker was born at Kummakode amsom in Nadapuram village in Kozhikode district, that his parents were Indian citizens, that his father and mother remained throughout in India and retained their Indian domicle and nationality, that it was when he was a minor that Aboobaker left India in search of employment, that during minority he had no legal capacity to acquire a domicile different from that of his parents and so he could not, in law, be said to have 'migrated' to Pakistan. It was further stated that the question whether Aboobaker had acquired the citizenship of another country and whether he had lost his Indian citizenship is a matter which should be determined by the Central Government under S.9(2) of the Citizenship Act read with R.30 of the rules framed thereunder and it is only after obtaining such a decision that the State Government could deal with him as a foreigner, and not having done so, the deportation order cannot be legally justified. 3. In the counter affidavit filed on behalf of the first respondent, the State of Kerala, it is contended that Aboobaker is a person who has migrated from India to Pakistan after 1st March 1947 and before the promulgation of the Constitution and therefore under Art.7 of the Constitution of India he cannot be deemed to be a citizen of India. The allegation in the petitioner's affidavit that Aboobaker came to India in 1948 and remained in India till 1952 has been denied. The allegation in the petitioner's affidavit that Aboobaker came to India in 1948 and remained in India till 1952 has been denied. It is stated that Aboobaker after leaving for Pakistan in 1948 came to India only in 1954 after obtaining a Pakistani passport No. 178152 dated 10th March 1954 and an Indian C. Visa No. 52667 dated 17th September 1954 and it is stated that the Register of Pakistanis kept by the District Intelligence Bureau, Kozhikode would show that the said Aboobaker left India for Pakistan on 1st November 1954. Thereafter he came to India again with the same passport and a fresh C. Visa No. 28861 dated 16th April 1956 and left India for Pakistan in June 1956 without reporting his departure at the Police station. It is pointed out that in the application for the C. Visa No. 28861 Aboobaker has shown his date of birth as 5th March 1936 and while describing his deceased father as Indian he has given his own nationality as Pakistani and the approximate date of migration has been shown as 1948. The counter further states that on 29th October 1964 Aboobaker was found clandestinely staying in the village of Kunnangode without any valid travel documents and so he was arrested under S.55 (b) Cr. P.C. and a case was registered against him under S.3 and 6 of the Indian Passport Rules, 1950. When he was produced before the judicial Sub-Magistrate, Badagara he was released on bail. The facts were then brought to the notice of the State Government and the order Ex. P-1 was passed requiring Aboobaker not to remain in India. Notice was served on him and his arrest and detention became necessary as he was unwilling to comply with the direction given in the notice. It is contended by the learned Government Pleader that Aboobaker cannot be deemed to be a citizen of India under Art.7 and has to be treated as a foreigner and if that be so, no question of any decision being taken by the Central Government would arise. 4. Where the question whether the person is not a foreigner is a question of fact and where there is dispute on the question which would require a detailed examination of evidence, a proceeding under Art.226 of the Constitution would not normally be appropriate for a decision of the question. 4. Where the question whether the person is not a foreigner is a question of fact and where there is dispute on the question which would require a detailed examination of evidence, a proceeding under Art.226 of the Constitution would not normally be appropriate for a decision of the question. But learned counsel for the petitioner stated that the variations on questions of fact in the petition and the counter affidavit were immaterial and would not affect the merits of the case and that he is prepared to argue the case on the basis that the facts stated in the counter affidavit represent the true position. On the facts thus admitted learned counsel raised two contentions; one, that at the time Aboobaker left for Pakistan he was only a minor and therefore he could not loose or abandon his Indian citizenship and acquire Pakistan nationality; and secondly, merely leaving the country and going to Pakistan is not sufficient to constitute 'migration'. 5. Before dealing with the points raised by the petitioner's learned counsel it would be useful to refer to the relevant provisions of Part II of the Constitution dealing with citizenship. Art.5 provides that at the commencement of the Constitution, every person who has his domicile in the territory of India and who satisfies one or the other of the three tests prescribed by Cl. (a),(b) and (c) shall be a citizen of India. Art.6 deals with persons who have migrated to the territory of India from Pakistan and it provides that they shall be deemed to be citizens of India at the commencement of the Constitution they satisfy the requirements of clauses (a) and (b). In other words, Art.6 extends the right of citizenship to persons who would not satisfy the test of Art.5, and so, persons who would be entitled to be treated as citizens of India at the commencement of the Constitution are covered by Art.5 & 6. Art.7 with which we are concerned provides that notwithstanding anything in Art.5 & 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. Art.7 with which we are concerned provides that notwithstanding anything in Art.5 & 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. The proviso deals with persons who having migrated to Pakistan have returned to the territory of India under a permit for resettlement or permanent return, but with that class of persons we are not concerned, as Aboobaker had no permit for resettlement or permanent return to India. Art.8 deals with the rights of citizenship of persons of Indian origin who reside outside India. Art.9 provides that no person shall be a citizen of India by virtue of Art.5, 6, or 8 if he has voluntarily acquired the citizenship of any foreign State. 6. It is common ground that if the question is whether the person to be deported has lost the citizenship of the country and voluntarily acquired the citizenship of a foreign State, the question has to be decided by the Central Government. The question that arises for our decision here is whether Aboobaker could be deemed to be a foreigner at the relevant date under Art.7. It is well settled that it is only persons who had migrated prior to the commencement of the Constitution and after the first day of March 1947 that would come within the ambit of Art.7 of the Constitution. We have, therefore, to see whether Aboobaker could be taken to have migrated to Pakistan after the first day of March 1947 and before the commencement of the Constitution. 7. The date of birth of Aboobaker as seen in the C. Visa is 5th March 1936. Learned counsel, therefore, argues that when Aboobaker left for Pakistan in 1948 he was a minor, that his parents were all in India and retained their Indian domicile and nationality and during minority Aboobaker had no legal capacity to acquire a domicile different from that of the guardian and could not, in law, migrate as has been held in Mst. Allah Bandi v. Government of Union of India AIR. 1954 All. 456. In that case two Mohammedan minor married girls who were residents in India left for Pakistan along with their parents in 1947, their husbands who were citizens of India remaining all along in India. Allah Bandi v. Government of Union of India AIR. 1954 All. 456. In that case two Mohammedan minor married girls who were residents in India left for Pakistan along with their parents in 1947, their husbands who were citizens of India remaining all along in India. It was held that the girls could not be said to have migrated to Pakistan in 1947 as they could not, in law, change their domicile of origin and shift to Pakistan with the intention of resettling there. Reference was also made to the passage in Cheshire's Conflict of Laws where it is stated that before reaching full age an infant is utterly incapable of acquiring by his own act an independent domicile of choice and he is powerless to alter his civil status. 8. Learned counsel for the petitioner then referred to the decision in Sharafat Ali Khan v. State of U.P. AIR. 1960 All.. 637. There the petitioner, an Indian citizen by birth went to Pakistan when he was a minor. His father remained in India and retained his Indian domicile and nationality. A little later his father was murdered in India. He felt impelled to return to India and got a Pakistani passport. The question was whether after attaining majority the petitioner could be deemed to have acquired Pakistan nationality by his own voluntary act in applying for Pakistan passport. Following the decision in Allah Bandi v. Government of Union of India AIR. 1954 All. 456, Broome, J., held: "A minor during his minority has no legal capacity to acquire a domicile different from that of the guardian and cannot in law migrate. Where, therefore the petitioner during his minority went to Pakistan in 1948, while his father remained in India and retained his Indian domicile and nationality, the petitioner cannot lose or abandon his Indian citizenship or acquire Pakistan nationality so long as he remained a minor in the absence of any action on the part of his guardian." His Lordship further stated that the petitioner went to Pakistan when he was only a minor unaccompanied by his guardian, and returned to India within about two months of his attaining majority. His Lordship then observed: "He could not change his domicile or nationality during the period of his minority, and there is nothing whatsoever to suggest that he showed any intention of changing his domicile or nationality after attaining majority, apart from the bare fact that he applied for and obtained a Pakistan passport. Mere applying for such a passport, as has been held by Desai, J. in Criminal Revision No. 631 of 1959 D/ 7-3-1960 is no proof of the acquisition of Pakistan citizenship. Presumably the petitioner must have declared himself to be a Pakistani in his application for the passport, but this at best was nothing more than an admission which is capable of being explained away. And in the circumstances of the present case, there is ample explanation for the admission presumed to have been made by the petitioner when applying for a Pakistan passport. His father had been murdered on 8th March 1956, and it was essential for him to return to India with the utmost speed; and the only way in which he could accomplish this end was by making a false declaration and obtaining a Pakistan passport." So even in this decision it had been laid down that conduct after attaining majority could under certain circumstances be of help in deciding whether the person had any intention of changing his nationality. 9. Learned Government Pleader brought to our notice the decision in Mohammed Iqbal Alin Uddin v. State of Punjab AIR. 1963 Punjab 520. That was for quashing a criminal charge for contravention of the provisions of Para.7(2) of the Foreigners Order punishable under S.14, of the Act. At the time he left for Pakistan in 1947 the petitioner was a minor and the contention was that as a minor he could not have changed his domicile and he would con-time as an Indian citizen and the question whether an Indian citizen has acquired citizenship of another country cannot be determined by the courts. Grower, J., stated that the charge is dependent not merely on the acquisition of Pakistan citizenship by the foreigner but on the fact that he migrated from India in the year 1947 with the result that under Art.7 of the Constitution he could not be deemed to be a citizen of India. Grower, J., stated that the charge is dependent not merely on the acquisition of Pakistan citizenship by the foreigner but on the fact that he migrated from India in the year 1947 with the result that under Art.7 of the Constitution he could not be deemed to be a citizen of India. His Lordship stated that migration is something different from the act of changing one's nationality or domicile and even if a minor is not capable of changing his nationality or domicile he can certainly migrate in the sense of going away to another country for good. The petitioner became a major in 1951 and if he decided to stay in Pakistan after he attained the age of majority the intention to migrate could be proved from that fact. 10. Learned counsel for the petitioner, however, contended that Aboobaker could not be taken to have 'migrated' from the territory of India to Pakistan either in 1948 or at any time thereafter, because he had left his family in India and had only gone to Pakistan in search of some employment and did not settle down there. In support of his contention he relied on the decision in Shabbir Hussain v. State of U. P. AIR. 1952 All. 257. In that case it was stated that the word "migrated" in Art.7 is used in the sense of departure from one country to another with the intention of residence or settlement in the other country, and a temporary visit to another country on business or otherwise cannot amount to migration. Their Lordships however stated that the fact whether a person has migrated from one country to another or has gone there on a temporary visit is a question of fact, which will have to be decided on the circumstances of each case. In that case the petitioner was born and brought up in the district of Bijnor in the Uttar Pradesh. He was carrying on a cloth business. He sent some of his goods to Lahore in Pakistan and in order to dispose them off he went to Lahore for two months. Before his departure from Bombay to Pakistan and within the period of his temporary visit to Pakistan he expressed his intention that he was going there only on a temporary visit. He sent some of his goods to Lahore in Pakistan and in order to dispose them off he went to Lahore for two months. Before his departure from Bombay to Pakistan and within the period of his temporary visit to Pakistan he expressed his intention that he was going there only on a temporary visit. On these facts it was held that this temporary visit did not amount to migration within the meaning of the word used in Art.7. 11. Another case referred to is the case Iqbal Ahmad v. State of Bhopal AIR. 1954 Bhopal 9. The Judicial Commissioner of Bhopal following the Allahabad case held that a temporary visit to another country on 'business or otherwise cannot amount to migration and that the expression 'migrated' in Art.7 is used in the sense of departure from one country to another with the intention of residence or settlement in that country. 12. In Smt Shanno Devi v. Mongol Sain (AIR. 1961 SC. 58) their Lordships of the Supreme Court had to consider the meaning of the word "migrated" in Art.6, whether it means merely come to the territory of India or it means 'come to the territory of India to remain here' or in other words 'come to the territory of India with the intention of residing here permanently.' After a detailed discussion, their Lordships held: "For all these reasons it appears clear that when the framers of the Constitution used the words "migrated to the territory of India" they meant "come to the territory of India with the intention of residing there permanently." The only explanation of their not expressly mentioning "domicile" or the intention to reside permanently" in Art.6 seems to be that they were confident that in the scheme of this Constitution the word "migration" could only be interpreted to mean "come to the country with the intention of residing there permanently." Their Lordships further stated; "It may sometimes happen that when a person moves from one place to another or from one country to another he has, at the point of time of moving, an intention to remain in the country where he moved only temporarily, but later on forms the intention of residing there permanently. There can be no doubt that when this happens, the person should at this later point of time be held to have 'come to the country with the intention of residing there permanently.' In other words, though at the point of time he moved into the new place or new country he cannot be said to have migrated to this place or country he should be held in law to have migrated to this later place or country at the later point of time when he forms the intention of residing there permanently." 13. In this case after staying for a period of about six or seven years in Pakistan on 10th March 1954 after he had become a major Aboobaker obtained the Pakistan passport No. 178152 dated 10th March 1954 and C. Visa No. 52667 dated 17th September 1954 and came and stayed in India for a period of two months. From the register of Pakistanis kept by the District Intelligence Bureau it is seen that he left for Pakistan on 1st November 1954. After reaching Pakistan he lived there for two years and once again with the same, passport and a new C. Visa No. 28861 dated 16th April 1956 he came to India and left for Pakistan in June 1956. Thereafter he is next seen in India only in 1964 without any travel documents leading to his arrest and order for deportation. From these acts of Aboobaker after he attained the age of majority his intention to migrate could well be inferred. In our opinion, the fact that he remained continuously in Pakistan all these years and came to India only occasionally on short visits after obtaining passport and C. Visa unmistakably show that he made Pakistan his permanent home and had migrated to Pakistan before the relevant date under Art.7. 14. We may, in this connection, refer to the decision in State of Bihar v. Kumar Amar Singh AIR. 1955 SC. 282: In that case the question arose whether Kumar Rani Sayeeda Khatoon had migrated from the State of Bihar to Pakistan before the 26th January 1950 within the meaning of the word "migrated" in Art.7 of the Constitution. 14. We may, in this connection, refer to the decision in State of Bihar v. Kumar Amar Singh AIR. 1955 SC. 282: In that case the question arose whether Kumar Rani Sayeeda Khatoon had migrated from the State of Bihar to Pakistan before the 26th January 1950 within the meaning of the word "migrated" in Art.7 of the Constitution. Certain facts were found to have been established in the case, namely (1) Kumar Rani went to Karachi in July 1948; (2) Her story that she went there temporarily for medical treatment has been doubted by the High Court and appears to us to be unfounded; (3) When 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; (4) She went back to Pakistan in April 1949 on the expiry of that temporary permit; (5) 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. On these facts, their Lordships came to the conclusion that Kumar Rani Sayeeda Khatoon must be held to have 'migrated' from the territory of India after the 1st March 1947 and before the coming into force of the Constitution. 15. It cannot be disputed that a Pakistani passport obtained by a person furnishes prima facie evidence that he is a Pakistani citizen. In the case in Mohammad Abdali v. State of Bihar AIR. 1960 Patna 98 a Bench of the Patna High Court after considering various English decisions and the legal position obtaining in America came to the conclusion that the Pakistani passport was a prima facie evidence that the petitioners in that case were foreigners within the meaning of the Foreigners Act, 1956. In the case in Dawood v. Deputy Commissioner of Police AIR. 1958 Cal. 565, Sinha, J., said that though a passport by itself is not a conclusive proof of nationality it is accepted as a proof of the fact by international agreement and the comity of nations. In the case in Dawood v. Deputy Commissioner of Police AIR. 1958 Cal. 565, Sinha, J., said that though a passport by itself is not a conclusive proof of nationality it is accepted as a proof of the fact by international agreement and the comity of nations. In that case, a Muslim, who was an Indian national, migrated to Pakistan in 1950 on account of communal disturbances and having gone there, applied and obtained a Pakistani passport on making a declaration affirming that he was a Pakistani national. It was held that he acted with deliberation in renouncing his Indian citizenship and accepting Pakistani nationality and was precluded from saying that he had no intention of making Pakistan his abode or residence. By accepting a Pakistani passport he caused the sovereign State of Pakistan to accept him as its citizen and to request other sovereign States of the world to extend protection and safety to him as a Pakistani citizen. In State of U.P. v. Jafar Ali AIR. 1963 All. 18 it was held that prima facie the nationality of the person holding a passport is that which is described in the passport. Under the Pakistani Citizenship Act a person can obtain a Pakistani passport if he is a citizen of that country and not otherwise. 16. Learned counsel then referred to the decision in State of A.P. v. Abdul Khadar AIR. 1961 SC. 1467, but it does not help the petitioner. There the respondent had come to India on a passport granted by the Pakistan Government. The C. Visa permitted him to stay in India only till April 14th, 1955. He, however, continued to stay on, after that date in spite of refusal to extend his visa. Notice was given to him to leave India and on his refusal to do so was proceeded against and convicted under S.14 of the Foreigners Act. The evidence showed that the respondent did go to Pakistan but the only evidence with regard to that was that he went there about the end of 1954 or beginning of 1955. The evidence also showed that he stayed there only for a short time. He was all along paying the rent of his shop in India. His family had always been here and therefore it was found that he cannot be said to have migrated to Pakistan. The evidence also showed that he stayed there only for a short time. He was all along paying the rent of his shop in India. His family had always been here and therefore it was found that he cannot be said to have migrated to Pakistan. The passport obtained by him from Pakistan their Lordships said, would no doubt be evidence that he was a Pakistani national, but as he left India for Pakistan only in 1954 he must be held to have been an Indian citizen on the promulgation of the Constitution and the passport can show no more than that he renounced Indian citizenship and acquired Pakistani nationality. Therefore, Art.7 would not apply in his case. S.9(2) of the Citizenship Act 1955 provides that if any question arises as to whether an Indian citizen has acquired the citizenship of another country it shall be determined by such authority and in such manner as may be prescribed. Under R.30 of the rules framed under the Act the authority to decide that question is the Central Government and so the question whether the respondent who according to the evidence was an Indian citizen had acquired Pakistani citizenship, their Lordships said, cannot be decided by the court. However their Lordships expressly declared: "The question whether a person is an Indian citizen or a foreigner, as distinct from the question whether a person having once been an Indian citizen has renounced that citizenship and acquired a foreign nationality, is not one which is within the exclusive jurisdiction of the Central Government to decide." 17. Here on the facts Aboobaker had left India after 1st day of March 1947 and before the promulgation of the Constitution and his case would be governed by Art.7 and not by the provisions of the Citizenship Act. It cannot be contended that inasmuch as Aboobaker had obtained the Pakistani passport only in 1954 after the promulgation of the Constitution he must be deemed to have been an Indian citizen before that date and therefore the provisions of the Citizenship Act would apply to him because he had left India prior to 1950 and the fact that he obtained the Pakistani passport in 1954 & 1956 merely confirmed that his earlier leaving the country in 1948 was with the intention of permanently settling down in Pakistan and amounted to a conscious adoption of what had been done earlier. We have, therefore, no hesitation in holding that Aboobaker had migrated to Pakistan in 1948 within the meaning of Art.7 of the Constitution and, therefore, he was a foreigner within the meaning of that word in the Foreigners Act and the State Government was perfectly justified in issuing the notice Ex. P-1 and as he was unwilling to comply with the direction contained in the notice in arresting him for the purpose of deporting him to Pakistan. For these reasons this petition must fail and the Rule issued by this Court is discharged. Interim order staying the deportation of Aboobaker is hereby vacated. There will be no order as to costs. Dismissed.