JUDGMENT 1. - The Station House Officer, Police Station, Ladnu filed in the Court of the Sub-Divisional Magistrate, Deedwana on February 26, 1973 to the effect that Nasir Mohammad son of Noor Mohammed had come to India on November 16, 1956 from Pakistan through Passport No. 097144 dated February 19, 1953 and Visa No. 75582 dated November 5, 1956. The period for the stay in India was upto March 31, 1957 but on the expiry of that period he did not return to Pakistan and had settled in India despite his being a citizen of Pakistan. The learned Munsif and Judicial Magistrate, Deedwana, after hearing the prosecution and Nasir Mohammed charge-sheeted him for the offence under section 14 of the Foreigners Act (hereinafter to be referred as 'the Act') and recorded his plea. He denied the charge, claimed to be tried and stated that be had never accepted citizenship of Pakistan and continued to be an Indian Citizen. That in his childhood that he was taken to Pakistan by his uncle. The prosecution examined six witnesses to substantiate the case that Nasir Mohammed had contravened the provisions of the Foreigners Act and was liable to be punished. In his statement under section 313 of the Code of Criminal Procedure Nasir Mohammed admitted the fact of coming to India through passport from Pakistan, got prepared by his uncle. He also admitted the fact of his arrest but denied the allegation of his being the citizen of Pakistan. He further stated that as he was a minor his uncle took him with him to Pakistan, he on attaining the age of understanding wanted to return to India, his uncle arranged the passport for him. That, he never attained the citizenship of Pakistan and continued to be an Indian Citizen. That, his family was in India and he lad married on his return to India. That, the Indian Government has issued to him the certificate of a displaced Gold-smith, treating him to be an Indian citizen. 2. The learned Magistrate by the impugned order dated December 22, 1976 acquitted the respondent on the ground that the matter related to year 1956 prior to the amendment of the Act in 1957 and, therefore, the definition of the Act in force at the relevant time was applicable. 2. The learned Magistrate by the impugned order dated December 22, 1976 acquitted the respondent on the ground that the matter related to year 1956 prior to the amendment of the Act in 1957 and, therefore, the definition of the Act in force at the relevant time was applicable. The State of Rajasthan felt aggrieved by the judgment of acquittal and preferred this appeal in this Court after seeking leave to appeal. 3. The learned Public Prosecutor has strenuously contended that whatever be the position under the Foreigners Act, when a person comes to this country under the passport of a foreign country, he should be presumed to be the Citizen of that country. According to the learned Public Prosecutor when the prosecution has established that the respondent had over stayed the period he was entitled to stay in India.that is after March 31,1957, the burden was on the respondent to show that his stay was legal. 4. The learned counsel for the respondent controverting these contentions submitted that the definition of the term 'Foreigner' prior to 1957 amendment of the Act was altogether different and the persons coming to India prior to the amendment of the Act were governed by the law for the time being in force and not by the subsequent amendment provision. 5. This is not in dispute that the respondent had come to India in the year 1956 prior to the amendment of the Act in 1957. Definition of the term 'Foreigner' prior to the amendment was as under : (a) (i) Foreigner means a person who is not a natural born British subject as defined in sub - section (1) and (2) of Section 1, of the British Nationality and status of Aliens Act, 1914 or (ii) has Dot been granted a certificate of naturalization as a British subject under any law for the time being in force in India, or (iii) is not a citizen of India." 6. After the amendment of Cl. (a) of Section 2 of the Act by the Foreigners Laws (Amendment) Act, 1957 (11 of 1957) the definition of term 'Foreigner' is as under ; Section 2(a) - Foreigner means a person who is not a citizen of India. 7. It is pertinent to note that this amendment of the term 'Foreigner' in the year 1957 was not given retrospective effect. 7. It is pertinent to note that this amendment of the term 'Foreigner' in the year 1957 was not given retrospective effect. This leads to the conclusion that in cases of persons arriving in India prior to this amendment in 1957, the definition of the term 'Foreigner' as in force at that time would be applicable. 8. A similar question arose before the Division - Bench of this Court in the case of State v. Abdul Majid and others, AIR 1959 (Raj) 131 . The accused, a national of Pakistan had arrived in India a passport and visa on March 15, 1956. He ought to have left India on January 31, 1957. Having over-stayed, he was challaned u/s 14 of the Foreigners Act for contravention of paragraph 7 of the Foreigners Order, 1948 (hereinafter to be referred as 'the Order'). The argument advanced from the prosecution side was that, even though the accused was not a foreigner at the time he entered India, he became a foreigner after the amendment of the definition of "Foreigner" in 1957. Their Lordships were pleased to hold that the accused was not a foreigner in the legal sense of that term as used till the Foreigners Laws (Amendment) Act, 1957 came into force and in the absence of any express provision or necessary implication arising out of the language of paragraph 7 of the Order, it could not be held that this Section had retrospective effect. Their Lordships were further pleased opine that Paragraph 7 stands as it was before the Foreigners Laws (Amendment) Act, came in force and it could not apply to the accused because he did not enter India as a foreigner. In such circumstances, the accused w as not held guilty of any contravention of Paragraph 7 of the Order. 9. Paragraph 7 of 'the Order' made in exercise of the posers conferred by Section 3 of the Foreigners Act, 1945 (XXXI of 1946) in exercise of the powers conferred by Sec 3 of the Foreigners Act deals with restriction of sojourn in India and the opening words of the paragraph are "every foreigner who enter India". This show that the person concerned should be foreigner at the time of his entry in India. This show that the person concerned should be foreigner at the time of his entry in India. Their Lordships of the Supreme Court had the occasion to deal with the interpretation of this term appearing in the opening words in the aforesaid paragraph of the order in the case of Fida Hussain v. State of Uttar Pradesh, AIR 1961 Supreme Court, 1522 . In that case that appellant who had earlier left India, returned on a passport granted by the Government of Pakistan on May 16, 1953. He had a visa endoresed on the passport by the Indian authorities permitting him to stay in India for three months. This term was later on extended upto November 15, 1953. He did not however return to Pakistan within that date and was therefore, convicted under section 14 of the Foreigners Act, 1946 by the Sub-Divisional Magistrate on March 9, 1959 and sentenced to rigorous imprisonment for one year. His appeal was rejected by the Sessions Court. The High Court of Allahabad refused to interfere with the order of Sessions Judge in revision. The matter went in Supreme Court in appeal against the order of the High Court. Their Lordships of the Supreme Court were pleased to propound the following principles: "Any person born within His Majesty's Dominions was deemed to be natural born British subject according to the provision contained in S. 1 (1) (a) of the British Nationality and Status of Aliens Act, 1914. And a British subject so defined by the said British Nationality Act could not be a "Foreigner" within the meaning of S. 2 (a) of the Foreigner's Act, 1946 as it stood in 1953." 10. Discussing the provisions of paragraph 7 of the Order. Their Lordships were pleased to hold that,the foreigner contemplated in the paragraph is a person who was a foreigner on the date of his entry in India. In view of the fact that the accused in that case was a natural born British subject on the date of his entry into India, he was not held to have committed breach of paragraph 7 and his conviction was not aside. 11. Noor Mohamed, father of the respondent has been examined in this case. He has stated about Nasir Mohamed being his son by his first wife and having gone to Pakistan when he was 15 or 16 years old. 11. Noor Mohamed, father of the respondent has been examined in this case. He has stated about Nasir Mohamed being his son by his first wife and having gone to Pakistan when he was 15 or 16 years old. The short point calling for determination in this appeal is as to whether the acquittal of the respondent according to law or not. As per definition of the term 'foreigner' in 'the Act' applicable at the time of his entry in India he was not a foreigner and, therefore, the order of acquittal calls for no interference. 12. Before parting with the case it is to be noted that their Lordships of the Supreme Court in the above referred case, declined to say anything as to the effect of the amended definition of "foreigner" on the status of the appellant because they were only concerned with his status in 1953 and no question as to effect of the amended definition on the appellants status fell for their consideration. In the present case also the learnea Magistrate was conscious of the fact that the date for determining the status of the respondent was November 22, 1956 when he entered India and therefore left it open to the Government to proceed against him according to law if it so desires. 13. In view of the above discussion, the appeal filed be the State of Rajasthan against the acquittal of the respondent has no merits and is dismissed.Appeal dismissed. *******