Abdul Hamid v. State of Bihar — 1972 DIGILAW 4 (PAT)

JUDGMENT G. N. Prasad J. Abdul Hamid, the petitioner before me, has been convicted under section 14 of the Foreigner's Act (Act 31 of 1946) and sentenced to undergo rigorous imprisonment for one year. The following facts are not in dispute before me. The petitioner was formerly employed under the Railways in India as a Gangman. In 1947 he opted for Pakistan. Subsequently, he came to India under a Pakistani passport towards the end of 1956. Thereafter, he continued to stay in India even after the expiry of the period of his passport on the 5th March, 1958. On the 12th July, 1958, he surrendered his passport to the Pakistani High Commissioner at Calcutta. 2. Upon these facts a prosecution report was submitted by the officer-in-charge of Pakur Police station for the prosecution of the petitioner under section 14 of the Foreigner's Act on the ground that he had been staying in village Patharghata, within Pakur Police station since about 21st December, 1956, in contravention of section 3 of the Indian Passport Act, 1930, read with rule 5 of the Indian Passport Rules, 1950, and section 14 of the Foreigner's Act, 1946. 3. At the trial two charges were framed against the petitioner one for violation of section 3 of the Indian Passport Rules; and second, for having entered into village Patharghat a police station Pakur, in the district of Santhal Parganas, in India "without the leave of competent civil authority and thereby contravening the provisions of Order 3 of 1950 and under section 3 of the Foreigners Act, 1946, and thereby committed an offence punishable under section 14 of the Foreigners Act, 1946.” The courts below have acquitted the petitioner of the first charge; but have convicted him under section 14 of the Foreigners Act, 1946, hereinafter referred to as the "Act," holding that he is a foreigner and by staying in India even after the expiry of the period of his visa, he has violated Order 7 (2) of the Foreigners Order, 1948. It may be mentioned here that no charge had been framed against the petitioner for violating Order 7 (2) of the Foreigners Order, 1948. The charge under section 14 of the Act was framed against him for contravening the provisions of order 3 of 1950. It may be mentioned here that no charge had been framed against the petitioner for violating Order 7 (2) of the Foreigners Order, 1948. The charge under section 14 of the Act was framed against him for contravening the provisions of order 3 of 1950. No such Order was made available to the lower appellate court, and in this Court the parties are agreed that no such Order exists. Learned Standing Counsel No. II has urged that it is a case of violation of Order 7 (2) of the Foreigners Order, 1948, and I therefore, proceed to consider the applicability of that provision to the facts and circumstances of the present case. 5. The Foreigners Order, 1948 was framed by the Central Government in exercise of its power under section 3 of the Act and was published in the Gazette of India on the 14th February, 1948. Paragraph 7 of the Order, as originally framed, provided for two things; (i) that every foreigner who enters India on the authority of a visa issued in pursuance of the Indian Passport Act, 1920 (34 of 1920), must obtain from the Registration Officer concerned a permit indicating the period during which he is authorised to remain in India as also indicating the place or places for his stay in India, if any, specified in the visa, and (ii) that he must depart from India before the expiry of that period, and at the time of his departure from India, he must surrender the permit to the Registration officer having jurisdiction at the place from where he departs. But by a notification dated the 15th December, 1959, issued by the Government of India, in the Ministry of Home Affairs, the seventh paragraph of the Foreigners Order, 1948, was replaced by a new paragraph which reads as follows :- “7. Restriction of Sojourn in India-(1) Every foreigner who enters India on the authority of a visa issued in pursuance of the Indian Passport Act, 1920 (34 of 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. (2) Every foreigner resident in India to whom the provisions of sub-paragraph (1) do not apply shall: on or before the 5th January, 1960, obtain from the Registration officer having jurisdiction at the place at which he resides a permit indicating the period during which he is authorised to remain in India. 3. Every foreigner to whom a permit is issued under sub-paragraph (1) or subparagraph (2) 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 the 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.” 6. Mr. Ghosal for the petitioner has urged that the courts below have erroneously proceeded upon the footing that the petitioner is a foreigner within the meaning of the Act. Learned counsel has referred me to the definition of a "foreigner" as it stood prior to the Foreigners Laws (Amendment) Act, 1957 (2) of 1957) which came into force with effect from the 19th January, 1957. Under the old definition, a "foreigner" was a person "who is not a natural born British subject as defined in sub-sections 1 and 2 of section 8, of the British Nationality land status of Aliens Act, 1914". Under the Act of 1914, just referred to, any person born within His Majesty's Dominion and allegiance was deemed to be natural born British subject. By the amendment of 1957, a foreigner means a person who is not a citizen of India. Mr. Ghosal therefore, contends that in 1947, when the petitioner opted for Pakistan, he was not a foreigner within the meaning of the law as it then stood, nor was he a foreigner when he came to India towards the end of 1956. In other words, according to Mr. Ghosal, the petitioner is not a foreigner to whom the provisions of paragraph 7 of the Foreigners Order, 1943 can apply. 7. In dealing with this contention of Mr. Ghosal, reference must be made to the Citizenship Act, 1955, (Act 57 of 1955) and the Citizenship Rules, 1956, framed by the Central Government in exercise of its powers under section 13 of that Act. 7. In dealing with this contention of Mr. Ghosal, reference must be made to the Citizenship Act, 1955, (Act 57 of 1955) and the Citizenship Rules, 1956, framed by the Central Government in exercise of its powers under section 13 of that Act. Section 9 of the Citizenship Act, 1955 lays down that any citizen of India who by naturalisation, registration or otherwise voluntarily, acquires, or has at any time between the 26th January, 1950 and the 30th December, 1955, voluntarily acquired the citizenship of another country shall, upon such acquisition, cease to be a citizen of India. Sub-section (2) of section 9 of the Citizenship Act, 1955, read with sub-rule (1) of rule 30 of the Citizenship Rules, 1956, provides 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 be the Central Government. Sub-rule (2) of rule 30 enjoins upon the Central Government to determine such question or questions in accordance with certain rules of evidence specified in schedule III of the Citizenship Rules, 1956. The third rule of evidence contained in schedule III is to the following effect: “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 the country before that date”. 8. In the instant case, there is no dispute with regard to the fact that the petitioner had obtained a passport from the Government of Pakistan, namely passport No. B 69422 dated the 5th March, 1953 issued to him by the District Magistrate of Rangpur in East Pakistan. It was valid for five years ending on the 5th March, 1958. In fact, in his statement under section 342, Code of Criminal Procedure, before the trial court, the petitioner categorically admitted that he had come to India on a Pakistani passport and had stayed in this country beyond the period of the visa. Therefore, even though the petitioner had not become a foreigner when he had opted for Pakistan in 1947, it is manifest that he had ceased to be a citizen of India in March, 1953 when he obtained a Pakistani passport on the strength of which he came to India towards the end of 1956. Mr. Therefore, even though the petitioner had not become a foreigner when he had opted for Pakistan in 1947, it is manifest that he had ceased to be a citizen of India in March, 1953 when he obtained a Pakistani passport on the strength of which he came to India towards the end of 1956. Mr. Ghosal is, therefore, not right in submitting that the petitioner was not a foreigner within the meaning of the law as it stood prior to the 19th January, 1957. By his own action in obtaining a Pakistani passport in 1953, the petitioner had ceased to be a citizen of India and, therefore, he was not a citizen of India when he returned to this country towards the end of 1956. Mr. Ghosal has then argued that in view of section 9 (2) of the Citizenship Act, 1955, and rule 30 (1) of the Citizenship Rules, 1956, it is only the Central Government which is competent to decide whether the petitioner has become a foreigner or not, and in support of this contention Mr. Ghosal has relied upon the State of Andhra Pradesh. V. Abdul Khader A.I.R. 1961 S.C. 1467. There would have been considerable force in this contention of Mr. Ghosal had the petitioner not himself admitted at the trial that he had come to India on a Pakistani passport and had stayed in this country beyond the period of his visa. In other words, in the instant case, there is really no dispute with regard to the fact that the petitioner had ceased to be a citizen of India by his own action in obtaining a Pakistani passport on March, 5, 1953. Unless he had voluntarily acquired the citizenship of Pakistan before March, 5, 1953, it would not have been necessary for the petitioner to come to India on the strength of a Pakistani passport. The necessity of a decision of the Central Government as enjoined by section 9 (2) of the Citizenship Act, 1955, would have existed if the petitioner had not admitted at the trial that he had come to India in 1956, under a Pakistani passport. If the petitioner would have continued to be a citizen of India, then he would not have been under the necessity of returning to India under the authority of a Pakistani passport. If the petitioner would have continued to be a citizen of India, then he would not have been under the necessity of returning to India under the authority of a Pakistani passport. In the circumstances of the present case, therefore, it was, in my opinion, competent to the courts below to hold that the petitioner had come to India towards the end of 1956 as a foreigner. In other words, the petitioner had ceased to be a citizen of India and become Oil foreigner even before the new definition of a foreigner was introduced into the Act in January, 1957. 9 It appears, however, that the petitioner was enrolled as a voter in the electoral roll prepared in connection with the general elections of 1957, 1962 and 1967, and this factor has been stressed by Mr. Ghosal in support of his contention that the petitioner had been accepted as an Indian national even after his return from Pakistan in view of Article 326 of the Constitution which contemplates inter alia that a person is not entitled to exercise his franchise unless he is a citizen of India. But there is no force in this contention of Mr. Ghosal. A citizen of India may be entitled to be included in the electoral roll so that he might exercise his right of franchise, but the converse is not true, and from the mere circumstance that the name of a person has been entered in the voters list no conclusion can necessarily follow that he is a citizen of India. The reason is that the Electoral Registration officer functioning under the Representation of the People Act, 1950, has to prepare a voter's list for the purpose of a particular election. It is not his function to prepare a list of citizens of India or to confer the citizenship of India upon any person. I am, therefore, of the opinion that the inclusion of the petitioner's name in the various electoral rolls cannot outweigh the conclusion emerging from the petitioner's action in obtaining a passport from the Government of Pakistan to which I have already referred. I am, therefore, unable to accept the contention of Mr. Ghosal that the petitioner is not a foreigner to whom the Act can apply. I would refer in this connection to Fateh Mohammad V. The Delhi Administration A.I.R. 1963 S.C. 1035. I am, therefore, unable to accept the contention of Mr. Ghosal that the petitioner is not a foreigner to whom the Act can apply. I would refer in this connection to Fateh Mohammad V. The Delhi Administration A.I.R. 1963 S.C. 1035. The appellant there had entered India in 1956 on a Pakistani passport and the visa endorsed on it enabled him to stay in India till August, 8. 1956. The Delhi Administration made an order under section 3 of the Act and served it upon him on November, 19, 1959 imposing certain restrictions on his stay. The appellant did not comply with the said restrictions. It was held that he had committed an offence within the meaning of section 14 of the Act. In that case also a contention was put forward, as here, that the appellant was not a foreigner at the time when he made his entry into India and so he could not be convicted on the basis that he was a foreigner within the meaning of the definition of a foreigner as subsequently amended. This contention was repelled by their Lordships of the Supreme Court in the following manner :- “There is a fallacy underlying in this argument. The appellant was certainly not a foreigner when he entered India under the definition of a foreigner as it then stood. In view of the amendment of the definition he became a foreigner after January 19, 1957. He could not be convicted of an offence for an act done by him before the amendment on the basis that he was a foreigner; for instance an act done by him such as his entry into India or his non-compliance with the conditions of an order issued ort him before the amendment on the footing that he was a foreigner. But the offence for which he is now charged is an act done by him in derogation of an order issued to him after the amendment. On the date when the Delhi Administration served on him the notice imposing certain restrictions and directing him to comply with certain conditions for his stay he was a foreigner within the meaning of amended definition. On the basis of the existing law he committed an offence and it will be futile for him to contend that he was not a foreigner under the original definition. On the basis of the existing law he committed an offence and it will be futile for him to contend that he was not a foreigner under the original definition. The reality of the act done by him must be judged on the basis of the existing law as the act was done subsequent to the amendment.” 10. That takes us to the next question which falls for decision in the instant case. It is not the prosecution case that subsequent to January, 19, 1957, any order had been made or served upon the petitioner under section 3 of the Foreigners Act, 1946, imposing any condition or restriction upon his continued stay in India, It is also not the prosecution case that the petitioner has contravened or not complied with any such restriction or condition of his stay in India. The charge that has been framed against the petitioner is of having entered into village Patharghata in the district of Santhal Parganas, in India, without the leave of the competent civil authority. No charge was framed against him for having contravened any of the provisions of paragraph 7 of the Foreigners Order, 1948. Under Sub-paragraph (2) of paragraph 7, the petitioner was required to obtain from the competent Registration officer a permit indicating the period, during which he was authorised to remain in India, and under sub paragraph (3), he had to depart from India before the expiry of the said period. But the petitioner has not been prosecuted upon the footing that he has contravened these provisions of paragraph 7. The present prosecution is merely for his entry into India without the leave of the competent civil authority. Therefore, upon the charge as framed in the present case, the petitioner cannot legitimately be convicted under section 14 of the Act for contravening any of the provisions of paragraph 7 of the Foreigners order, 1948. 11. For the aforesaid reasons, I am unable to uphold the conviction that has been recorded against the petitioner. I, therefore, set aside the conviction and the sentence and make the rule absolute.