The State of Assam appeals against the judgment and order of acquittal dated 24.11.1979 passed by the learned Sessions Judge, Goalpara District, at Dhubri in criminal Appeal No. 24(2) of 1977 reversing the judgment of conviction dated 24.5.1977 of the Sub-Divisional Judicial Magistrate, Kokrajhar in G R. Case No. 44l/ 1975 under section 14 of the Foreigners Act. 2. The accused-respondent Katwas Khan took 2 pleas for his defence in the trial firstly, that he was an Indian citizen and not liable to be deported out of the State of Assam and secondly, the Superintendent of Police, Goalpara, Dhubri had no authority to make an order/notice under section 3 (2) (c) of the Foreigners Act directing a foreigner to leave India or any State of India. 3. As regards the first question, both the Courts-below. on the basis of evidence and documents, came to concurrent finding that the accused Katwas Khan was a Pakhtoon National and so, a foreigner. Learned counsel Mr. T C. Majumder has not pressed this point at the hearing. The finding of the Courts below on this point was correct and requires no interference. 4, The Under Secretary to the Government of Assam, Passport Department, with a letter No. PEA 4/72/1.38 dated 22.3.1975 directing the Superintendent of Police, Goalpara to serve a notice on the accused asking him to leave Assam within 15 days from the date of receipt of the notice. The letter did not indicate that Government directed the Under Secretary to write such a letter to the Superintendent of Police. Thereupon, the Superintendent of Police issued the under mentioned notice to the accused-respondent:- "In exercise of the powers conferred by the Government in Memo No. PEA 4/72/138 dated 22.3.75 from the Under Secretary to the Govt. of Assam, Passport Department, I, as District Superintendent of Police and Foreigners Registration Officer,' Goalpara, order that Mr. Katwas Khan, son of late Sarwan Khan, a so called Pakhtoon National now residing at Kokrajhar town, District Goalpara shall leave the State of Assam within 15 days from the date of receipt of this notice, failing which he will be liable for prosecution under law". Whether the Superintendent of Police bad the authority or delegated power to issue such a notice under section 3 (2) (c) ? 5.
Whether the Superintendent of Police bad the authority or delegated power to issue such a notice under section 3 (2) (c) ? 5. Under section 3 of the Foreigners Act the Central Government has got the power to order a foreigner to leave Indian territory or any part thereof. Section 3 (1) reads as : - "Section 3. Power to make orders-(1) The Central Government may by 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 foreigner, for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein." Article 255 (1) of the Constitution of India authorises the President to entrust to any State Government the function of the Central Government for making order under section 3 (2) (c) and under section J2 of the Foreigners Act the State Government can delegate the power to a subordinate officer in writing. But the delegation of the authority must be specific and express. In the case Dawood Ali Arif vs. Deputy Commissioner of Police & others reported in AIR 1958 Calcutta 565 the order of delegation was by a letter written by the Deputy Secretary to the Government of West Bengal, Calcutta, stating that Pakistan nationals who came to India on valid transit visa and were staying on without authority may be served with notices immediately directing them to leave India within a period of one month and if they did not do so, then they will be prosecuted. The finding of the Calcutta High Court was that the Government did not purport to clothe the Deputy Commissioner of Police with powers to deal with foreigners, because the letter merely said that certain classes of people may be served with notices but did not expressly say that it was for the Deputy Commissioner of Police to issue or serve notices himself, as such delegate, and held that he had, therefore, no jurisdiction to act under section 3 of the Foreigners Act and the order served by him on a foreigner to leave India was not in accordance with law. 6.
6. Under section 3 of the Foreigners Act, the power to make an order either against an individual or against a class generally, is conferred upon the Central Government and under section 12 of the Foreigners Act the power to make orders under section 3 may be delegated to a subordinate authority subject to such conditions as may be contained in the authorisation. By virtue of a notification issued by the Government of India on 17th October, 1955, No. 949/46/6S/ 09A, the power may be deemed to be conferred upon the State Government. In the case State vs. Ibrahim Nabiji reported in AIR 1959 Bom 525 it was found that there was no order issued by the Central Government or competently by the State Government delegating the authority under clause (c) of sub-section (2) of section 3 of the Foreigners Act upon the Superintendent of Police, it was held that the order passed by the District Superintendent of Police on 20th August, 1957 must, therefore, be regarded as unauthorised and failure to carry cut the requisition contained in that order cannot be penalised under section 14 of the Foreigners Act. 7. Section 12 of the Foreigners Act authorises the authority empowered under the Act to delegate it further to any authority subordinate to it. Section 12 permits further delegation by the State. The State Government can delegate the function to any authority subordinate to it. An order under section 3 passed by an authority subordinate to the State Government without proving the State Government's notification of delegating its authority to such subordinate authority, is invalid. 8. As a matter of fact the power to make deportation order has been delegated to the Government of Assam. By virtue of the notification issued by the Government of India on 17th October, 1955, No. 949/46/68/409A, the power may be deemed to be conferred upon the State Government. A notice of deportation, commonly, called as a quit notice, can emanate from the level of t e Government or from an authority who has been delegated the said power under the provision of section 12. The letter dated 22.3.1975 by the Under Secretary to the Government of Assam, Passport department to the Superintendent of Police to serve notice on a particular person /foreigner was not delegation of power under section 12 of Foreigners Act.
The letter dated 22.3.1975 by the Under Secretary to the Government of Assam, Passport department to the Superintendent of Police to serve notice on a particular person /foreigner was not delegation of power under section 12 of Foreigners Act. That letter did not indicate that the Government delegated the power to the Superintendent of Police by virtue of section 12 to act under section 3 (2) (c) of the Foreigners Act, nor it was a notification by the State Government by virtue of section 12 delegating the power on the Superintendent of Policy Goalpara, Dhubri to act under section 3(2) (c). The delegation of the authority must be specific and express. The accused challenged the authority of the Superintendent of Police in the matter of issuance of the notice under section 3(2) (c) on him and that was his specific defence plea. The prosecution had failed to satisfy the trial Court as well as the appellate Court that the State Government had delegated the power to the Superintendent of Police, Goalpara under specific terms in accordance with the provision of section 12 of the Foreigners Act to act under section 3 (2) (c) of the said Act, at the relevant time in the year 1976. There was no document except the letter of the Under Secretary directing the Superintendent of Police, Goalpara to serve a notice on the accused under the provision of section (3) (2) (c) to leave Assam within 15 days. This letter itself was not delegation of power by the State Government under section 12 of the Foreigners Act on the Superintendent of Police to act under section 3. In the absence of proof of delegation of power by the State Government to the Superintendent of Police, Goalpara, at the relevant time (1975-76), under section 12 of the Foreigners Act to act under section 3 (2) (c) of the said Act, it is held that the notice issued by the Superintendent of Police on the accused-respondent under section 3 (2) (c) of the Foreigners Act was without jurisdiction. The prosecution under section 14 of the Foreigners Act on the basis of the said notice was bad in law. 9. This appeal has no force.
The prosecution under section 14 of the Foreigners Act on the basis of the said notice was bad in law. 9. This appeal has no force. There is no ground to interfere the order of acquittal passed by the learned Sessions Judge, Goalpara, Dhubri id Criminal Appeal No,24 (2) of 1977 with reference to G. R. 441/1975 of the Court of Sub-Divisional Judicial Magistrate, Kokrajhar. 10. The appeal fails and dismissed