JUDGMENT : Das, J. - The Petitioner has been convicted u/s 14 of the Foreigners Act of 1946 and sentenced to undergo R.I. for six months and to pay a fine of Rs. 600/ - in default to undergo, R.I. for six months more. 2. The case of the prosecution is briefly this: The Petitioner who is a resident of Cuttack, left India for Pakistan in 1947, settled there and became a Pakistani national. He came to India under a Pakistani permit dated 30.9.1952 granted by Pakisthan Government., the condition was that he was to enter India between 6-10-1952 and 12.10.1952 and go back to Pakisthan by 4-11-1952. The Petitioner, however, did not return to Pakisthan by the due date, but continued to remain in India. In exercise of the powers vested u/s 3(2)(c) of the Foreigners Act (Act XXXI of 1946) (hereinafter referred to as 'the Act'), the Home Department of the Government of Orissa letter No. 21916-PPT dated 29-10.1960 (ext. 1) issued a notice and directed him to quit India within one month from the date of receipt of notice. The said notice was served on the Petitioner on 11-11-1960 as will appear from ext. 5. The Petitioner filed an application (Ext. 2) dated 11-11-1960 to the Government of Orissa for extension of his stay on the ground of illness. He also made a further prayer to stay permanently in India as an Indian citizen. As the Petitioner failed to quit India within one month from the date of receipt of the notice, he was prosecuted u/s 14 of the Foreigners Act, for contravening the aforesaid order of the Government. 3. The plea of the accused is that his family is settled permanently at Cuttack from the year 1889. He is domiciled in the territory of India. His parents were born in India and his father S.A. Qudoos was a noted photographer in the State of Orissa. In 1947 he went to Delhi to undergo some higher training in photography. During the Hindu-Muslim riot in that year. In order to save his life, was forced to leave for Karachi while his family members were living as usual at Cuttack, where he has ancestral residential house and other landed properties and he himself had been enrolled as a voter in Cuttack Municipality While in Pakisthan he made several attempts to return to India, but failed. In order to save his life, was forced to leave for Karachi while his family members were living as usual at Cuttack, where he has ancestral residential house and other landed properties and he himself had been enrolled as a voter in Cuttack Municipality While in Pakisthan he made several attempts to return to India, but failed. When he learnt about the death of his father in India and felt an irresistible urge to come back to Cuttack to look after his ailing mother. As it was not otherwise possible to obtain the necessary permit from the Pakisthan Government, he had to give a false declaration that he was a domicile of Pakisthan and was thus able to obtain the necessary visa and pass-port to come to India. After coming back to India he informed the Government of his intention to stay in India and not to go back to Pakisthan. He admits the service of notice .upon him on 11-11-960. In support of his plea he also examined some witnesses to show that he had his ancestral residence and some property at Cuttack and his stay at Pakisthan was merely a temporary one and that he is an enlisted voter in Cuttack Municipality. In short, the plea of the accused is that he continues to be a citizen of India and the Foreigners Act has no application to him and as such he is not liable to be convicted u/s 14 of the said Act. 4. The trial court held that he is not an Indian citizen and that since he has failed to quit India in accordance with the notice, ext. 5, he found him guilty u/s 14 and sentenced him as stated above. The appellate court maintained the conviction and the sentence; hence this revision. 5. The main contention of Mr. Mohanty, learned Counsel for the Petitioner is that the Petitioner continued to be a citizen of India notwithstanding his temporary absence at Pakisthan. He had never migrated from India at any time, nor changed his domicile and that being the position he cannot be made liable u/s 14 of the Act as he is not a foreigner within the meaning of that Act. 6. The main question for consideration is whether the Petitioner is a 'foreigner' within the meaning of the Foreigners Act. He had never migrated from India at any time, nor changed his domicile and that being the position he cannot be made liable u/s 14 of the Act as he is not a foreigner within the meaning of that Act. 6. The main question for consideration is whether the Petitioner is a 'foreigner' within the meaning of the Foreigners Act. Section 2(a) of the said Act defines a 'foreigner' as a person who is not a citizen of India. There are several modes of acquisition of a citizenship of India. Article 5 of the Constitution deals with the mode of acquisition of a citizenship at the commencement of the Constitution of India. It provides that any person who has his domicile in the territory of India at the commencement of the Constitution and who satisfies one of the three conditions specified by Clauses (a), (b) and (c) of the said Article, shall be a citizen of India. The conditions are: (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 the commencement of the Constitution. The conditions are alternative in character and so if anyone of those conditions is satisfied, a person would be deemed to be a citizen of India provided he had his domicile in the territory of India on the 26th of January 1950, that is, the date of the commencement of the Constitution. It is not disputed that the Petitioner and his parents were born in India. Thus the two clauses, viz., (a) and (b) are wholly applicable to his case. The only other question, however, is whether he has his domicile in India on 26-1-1950. It is the admitted case of the Petitioner that he was in Pakisthan on 26-1-1950, but his case is that it was merely a temporary absence and his domicile in India continued as before. In this connection it is necessary to refer to Article 7 of the Constitution. The case of the State is that the Petitioner migrated to Pakisthan after 1-3-1947 and thus ceased to be a citizen of India as provided under Article 7 of the Constitution. In this connection it is necessary to refer to Article 7 of the Constitution. The case of the State is that the Petitioner migrated to Pakisthan after 1-3-1947 and thus ceased to be a citizen of India as provided under Article 7 of the Constitution. Article 7 provides that notwithstanding -Articles 5 and 6 a person who after the 1st day of March 1947, migrated from the territory of India to the territory now included in Pakisthan, shall not be deemed to be a citizen of India. We are not concerned with the proviso of that Article which deals with persons who permanently return to India under a valid permit for resettlement. Under Article 9 no person shall be a citizen of India by virtue of Article 5 if he has voluntarily acquired the citizenship of any foreign State. If applies to cases where migration had taken place after 26-1-1950. Article 10 says that every person who is or deemed to be a citizen of India under any of the foregoing Articles of the Constitution, shall subject to the provisions of any law that may be made by Parliament continue to be such a citizen. Under Article 11 the Parliament has the powers to regulate the rights of citizenship by law, and in exercise of this power, Parliament has enacted the Citizenship Act (Act LVII of 1955) providing for the acquisition of Indian citizenship in various ways and the termination thereof. Thus, citizenship can be acquired in accordance with the provisions of the Constitution and under the Citizenship Act. We have already seen that Section 2(a) of the Foreigners Act defines a foreigner as "a person who is not a citizen of India". It is the case of the Petitioner that he was a citizen of India as at the date of the commencement of the Constitution he has his domicile at Cuttack in Orissa where he and his parents were born and where the members of his family reside in his ancestral residence and he has his other immovable" properties, and he never migrated from India. 7. It appears from the evidence of the prosecution that the accused has his ancestral residence at Cuttack. The evidence of p.w.1 a police officer attached to the District Intelligence, Branch at Cuttack shows that the father of the Petitioner had his photographic shop at Cuttack. 7. It appears from the evidence of the prosecution that the accused has his ancestral residence at Cuttack. The evidence of p.w.1 a police officer attached to the District Intelligence, Branch at Cuttack shows that the father of the Petitioner had his photographic shop at Cuttack. Another police officer, p.w.2 has also said that he visited the house of the accused at Cuttack and saw that members of his family were staying in that hour in Pension Lane and that house is their residential building. P.w.4 has also admitted in his evidence that the accused has his house at Boxibazar and he is the son of Abdul Qudoos who had a photographic studio at Cuttack and he has been seeing the Petitioner from his childhood. Abdul Qudoos and his family members including the accused were residing in their house in the Pension Lane. He has also some house property near the Pravat Cinema which he has let out on rent. The Petitioner as also filed a certified copy of the Municipal Electoral Roll to show that he was enrolled as a voter of the Cuttack City Municipality, his house number being 502 and his serial number in the voters' list being 1026. The evidence in this case thus prima facie makes out a case that the Petitioner was a permanent resident of Orissa and has his domicile .in India on 26-1-1950 and is an Indian Citizen. The prosecution, however, contends that notwithstanding the fact that the Petitioner was born in India and has his domicile in India at the time of the commencement of the Constitution, according to the very admission of the Petitioner he left India in 1947 and stayed in Pakisthan until 1952 and he came to India only for a short stay on the strength of a Pakistani pass-port and on the representation that he is a Pakisthani national, and thus by reason of Article 7 of the Constitution he shall be deemed to have ceased to be a citizen of India. To make Article 7 applicable (without its proviso), it is necessary to make out a case that the Petitioner migrated from India to Pakisthan after the 1st day of March, 1947. No doubt, accused in his 342 statement has stated that he left India in 1947. But there is no clear evidence on behalf of the prosecution that he left India after 1-3-1947. No doubt, accused in his 342 statement has stated that he left India in 1947. But there is no clear evidence on behalf of the prosecution that he left India after 1-3-1947. In any event, before the provisions of Article 7 can be made applicable, it has to be established that he in fact migrated from the territory of India. The word 'migrated' from India is something more than mere 'leaving' India. The Supreme Court in Abdul Sattar Haji Ibrahim Patel Vs. State of Gujarat while dealing with a case under the Foreigners Act held that the requirement of migration postulates that the person must have left India with the intention of residing permanently in Pakisthan. In another decision of the Supreme Court in Smt. Shanno Devi Vs. Mangal Sain the lame view was also expressed. Their Lordships held that leaving India casually for a specific purpose without intending to settle down permanently in Pakisthan would not amount to migration. It was contended on behalf of the State that the admission of the Petitioner or that he obtained a Pakisthan pass-port and in the said pass-port described himself as a Pakisthan national is by itself the best evidence of his migration from India and settling down permanently in Pakisthan. No doubt a pass-port obtained by a person from a foreign country is relevant in an enquiry as to the citizenship of the person holding the pass-port as observed in Izar Ahamad v. Union of India AIR 1912 S.C. 1052, but as has been held by the Supreme Court in a case reported in Mohd. Ayub Khan Vs. Commissioner of Police, Madras and Another the obtaining of a foreign pass-port, cannot be regarded as the conclusive proof of voluntary acquisition of foreign citizenship. No doubt, u/s 9 of the Foreigners Act the onus of proving that he is not such foreigner lies upon a person who claims it. But once some evidence is led to make out a prima facie case that a person was a citizen of India on 26-1-1950, it is for the other side to prove the contrary and make out a case that the accused had in fact given up his old domicile in India and has acquired a new domicile in Pakistan as obviously, a person cannot have more than domicile at one time. In other words, it has to be proved that, the Petitioner has ceased to be a citizen of India and has become a foreigner so as to be attracted by the provisions of the -Foreigners Act. It may be mentioned that under Article 10 of the Constitution a citizen shall, subject to the provisions of any law made by Parliament, continue to be such citizen. In Civil Appeals Nos. 976 and 977 of 1964 (Kedar Pandey v. Narayan Bikram Saha) their Lordships of the Supreme Court observed that the law attributes every person at birth a domicile which is called a domicile of origin. This domicile may be changed and a new domicile, which is called a domicile of choice, can be acquired. But the two kinds of domicile differ in one respect. The domicile of origin is received by operation of law at birth and the domicile of choice is acquired later by the actual removal of an individual to another country accompanied by his animus manendi. For this purpose, residence is a mere physical act and means nothing more than personal presence in the locality apart from any of the circumstances attending it. If this physical fact is accompanied by the required state of mind, neither its character nor its duration is in any way material. The state of mind or animus manendi which is required, demands that the person whose domicile is the object of the enquiry, should have formed a fixed and settled purpose of making his principal or sole permanent home in the country of residence, or in effect, he should have formed a deliberate intention to settle there. With respect to the onus, their Lordships said that it is also well settled that the onus of proving that a domicile has been chosen in substitution of the domicile of origin, lies upon those who asked that the domicile of origin has been lost. The domicile of origin continues unless a fixed and settled intention of obtaining the first domicile and acquiring another as the sole domicile is clearly laid down. Thus, the only evidence required for proving a change of domicile, is the intention of permanent residence. The domicile of origin continues unless a fixed and settled intention of obtaining the first domicile and acquiring another as the sole domicile is clearly laid down. Thus, the only evidence required for proving a change of domicile, is the intention of permanent residence. In other words, what is required to be established is that the person who is alleged to have changed the domicile of origin, has voluntarily fixed the habitation for himself and his family in a new country not merely for a temporary and special purpose, but with the intention to make it a permanent home. 8. We have already seen that the Petitioner had his domicile of origin at Cuttack where he and his parents were born and lived for generations and where they have their ancestral and residential property and where he is also enlisted as a voter in the Municipality. No doubt he admitted that he bad been to Pakisthan in 1947 when the Hindu-Muslim riot took place, got some employment there to maintain himself at the time. He wanted to come to India to see his ailing father and members of his family and he could not get a pass-port without making a false declaration that he was a Pakisthan national, but the prosecution has not led any evidence to make out any case that the Petitioner had relinquished his domicile of origin and made Pakisthan his permanent residence. Once it is held that the Petitioner continued to retain his domicile of origin on 26-1-1950, Article 7 could have no application to the case. That Article has application only to such persons who have migrated before 26-1-1950, that is after 1-3-1947. 9. The pass-port of the Petitioner may at best show that in 1952 he was described as a Pakisthan national, but that does not conclude the matter. If the question is if a person has voluntarily acquired the citizenship of a foreign State, his case has to be determined u/s 9(2) of the Citizenship Act. Section 9(2) of the Citizenship Act of 1955 says that if any question arises as to whether, when and 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. Section 9(2) of the Citizenship Act of 1955 says that if any question arises as to whether, when and 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. It was asserted by the Petitioner that immediately after his return to India, he made a representation to the Home Department of the Government of India to grant him permission to stay permanently as before in India and not to go back to Pakisthan. The Under Secretary to the Government of India, Home Affairs, by their Memo No. 9-F-615-F dated 13-4-1961 informed the Petitioner that his representation is being forwarded to the Government of Orissa for favourable consideration. The Government of Orissa also by their letter No. 13029/PPT dated 7-7-1960 informed the Petitioner that his application is receiving consideration of the Home Department of the Government of Orissa. But nothing is clear from the records as to what happened to that application filed by the Petitioner. The Government of Orissa on the other hand in their letter No. 21916-PPT dated 29-10-1960 sent notice to the Petitioner to quit India within a month of the receipt of the notice, ext. 1 and it is the non-compliance with this notice that has entailed the prosecution u/s 14 of the Act. In view of the nature of contentions raised by the Petitioner, the question that arises for consideration is whether the Petitioner has in fact lost the citizenship of India which he had before he left for Pakisthan in 1947. That however is a question which can be decided only by the Central Government as would appear from Section 9(2) of the Citizenship Act and Rule 30 of the Rules framed thereunder. Rule 30 lays down that if any question arises as to whether, when or how any person has acquired the citizenship of another country, the authority to determine such question shall, for the purpose of Section 9(2), be the Central Government, and in doing so, the Central Government shall have due regard to the rules of evidence specified in Schedule III of the Rules. It is well-settled by authorities that a State Government in order to justify its action against a person u/s 14 of the Act, must establish that be is not a citizen of India. It is well-settled by authorities that a State Government in order to justify its action against a person u/s 14 of the Act, must establish that be is not a citizen of India. This determination of the question of nationality of the party concerned has to be made not by the courts but by the Central Government and before such determination is made the proceedings u/s 14 of the Foreigners Act are incompetent, See The Government of Andhra Pradesh Vs. Syed Mohd. Khan, and State of Madhya Pradesh v. Pir Mohammad AIR 1963 S.C. 735. One of the contentions raised by the Petitioner is that he is not a free agent in obtaining a pass-port of Pakistan and that he was forced under circumstances to declare himself a Pakisthani national to obtain such a pass-port, That again is a question which does not fall within the jurisdiction of Courts. In the aforesaid decision of the Supreme Court reported in Mohd. Ayub Khan Vs. Commissioner of Police, Madras and Another their Lordships held that it would be impossible to hold that termination of Indian citizenship depends upon the action of a foreign country in issuing the pass-port and if a plea is raised by the citizen that he had not voluntarily obtained the pass-port, the Citizen must be afforded an opportunity to prove that fact. Tat question could also be determined in an enquiry u/s 9(2) of the Citizenship Act. In view of this position, it cannot be said that the prosecution has established that the Petitioner is a foreigner so as to make him liable u/s 14 of the Act. The conviction and sentence passed on the Petitioner are accordingly set aside and the revision allowed. The bail- bonds of the Petitioner shall stand cancelled. Revision allowed. Final Result : Allowed