Decided on November 06,1970

In Re: Khan Appellant
STATE Respondents


Somasundaram, J. - (1.) KHAN , the petitioner herein, is an Aghan national living at Coonoor in the Nilgiris Dist. On 13th September, 1964, the Collector called in him to grandnee his national passport. He did not produce it. On 19th September, 1967 another notice was served upon him. First now he did not produce it. Finally, on 7th July, 1968, he was served with Ex. P -1, the third notice. Since he did not produce the support he was presented for an offence under S. (2)(e)(iii) of the Foreigners Act. He content ended that he is an Indian National living be India for over thirty years and that as each hopes that able to produce any passport. The learned Sub Divisional Magistrate, Gudalur, hold that he is a foreigner and that as ones the prosecuting for the non -production, if the passport was maintainable. With this finding, he convicted and conceived him under S. 3(2)(e)(iii) read with S.14 of the Foreigners Act to suffer R.I. for two months with a fine of Rs. 300. on appeal, the leaned Sessions Judge at Coimbatore affirmed this decision. This conviction is new canvassed in revision.
(2.) UNDER S.3 of the Foreigners Act, the Central Government may, by order make provision either generally or with respect to any particular foreigner for prohibiting, regulating or restricting, the entry into India or their departure there from or their presence or continued presence therein. Under S. (2)(e)(iii) of the Act, the petitioner was called upon to produce his passport. This he did not. He contends that he is an Indian national. Ex. P -6 dated 3rd March, 1964 is the registration report sent by him. He has mentioned his place of birth, in this report, as Grade Basthi in Gazhi Dist. In Afghanistan. He has given his previous nationality as an Afghan. He has stated therein that he arrived in India 27 years age at Bombay and that he has no passport. On 27th June, 1944, by Ex. P -8, he had applied to the Superintendent of Police, to provide him with the necessary application forms to enable him to apply for an extension of the residential permit which would expire on 2nd June, 1964. On 15th June, 1964 by Ex.P -9, he had informed the Superintendent of Police that he had addressed the Afghan Consulate at Bombay for a passport and that he would produce it on receipt. On his behalf, it is urged that he has acquired citizenship in India under Article 5 of the Constitution. Under this Article, every person who has his domicile in the territory of India at the commencement of the Constitution and who has been ordinarily resident in the Indian territory for not less than five years immediately preceding such commencement, will become a citizen of India. The petitioner as D.W. 1. has deposed that he came to India thirty years age without any passport that he was previously residing in Calcutta, Bombay and Delhi and that new he is at Coonoor. He admits that he has no house or land in India. He further admits that he is not a voter. The learned Sessions Judge has hold that the petitioner has not placed any material before the court for establishing that he has domicile in India. "Domicile" as defined in the Oxford Dictionary, means dwelling places, home, place of permanent residents "Permanent" Is the opposite of "temporary" and it means "lasting or designed to last indefinitely without change". The place where a person voluntarily fires his habitation, not for a more special and temporary purpose, but with the present intention of making it his permanent home, unless and until something shall occur to induce him to adopt some other permanent home, will be the domicile of that person. A more present intention to remain indefinitely in an existing home will, not satisfy the test of permanence. What must be done is an intention never to leave. Dicey and Morris in their Conflict of Laws observed as below - In general a person can be said to be domiciled in a country where he establisher that he has a permanent home. He can require a domicile of choice by the combination of residence and intention of permanent or indefinite residence, but not otherwise: There are two kinds of domicile:(1) domicile of origin and (2) domicile of choice, required. The former kind of domicile is received by operation of law at birth, while the letter kind of domicile is acquired later by the actual removal of the individual to another country accompanied by his animus manen di. An individual who is not under disability may at any time change his existing domicile and acquire for himself a domicile of choice by the fact of residing in a country other than that of continuing to reside there indefinitely. The residence for this purpose is a more physical fast. But this physical fact must be accompanied by the required state of mind. The state of mind which is required demands that the individual should have formed a fixed and settled purpose of making his principal or sole permanent home in the county of residence or in effect he should have formed a deliberate intention to settle there. The cause of proving that a domicile has been chosen in substitution for the domicile of origin is upon these who assert that the domicile of origin has been lost. The domicile of origin continues till a fixed and settled intention of abandoning the name and acquiring another as the sole domicile is clearly established. Vide Munro v. Munro, 1840, 7 Cl&Fis. 842, and Wanons v. Attorney -General, (1904) A.C. 887 and in Kedar Pandey v. Narain Bikramsan, A.I.R. 1966 S.C. 140. Lord westbury observes at page 458 in the case reported is Mongo House and another v. Lord and others, (1949) 10 H.L.C. 878, as below: Domicile of choice is a law defines the fact of a voluntarily his sole as chief resident in particular place, with the intention of operating to reside there for an unlimited is a description of the circumstance that creates or constitute a domicile and definition of the term. There may be residence freely chosen and not prosecution indicated by any internal necessity, such as the duties of office, the demands of criminal the relief from illness, and it must be residence fixed, not for a limited period or particular purpose, but general and its further contemplation.
(3.) THE petitioner herein has not established that at the time when the Constitutions of them into force he had acquired the Indian citizenship. He admits as D.W. 1 that he gusting house or land in India. He also admits that he is not even a votes and he has not paid that tax. He further states that he has been it in Calcutta, Bombay and Delhi previously. He has not adduced any other evidence to publish that he was ordinarily residing his in territory of India for not less than five year immediately preceding the commodity of the Constitution. On the other hand we and that even in the year 1964 he had required under the rule framed under the Act before the Registration Officer at In column 6 he given his previous nationality as Afghan. Column 7 relates to the and date of acquiring present nationality of which he has stated that he has acquired the present nationality by birth. Obviously that is false. He had a residential permits and that permit expired on 2nd June 1964. On that June 1964 by Ex. F. S he had applied to the Superintendent of Police, the necessary forms for applying for extended off his stay in India. On the 15th July 1966 as per Ex. P. S he informs that Superintendent of Police that he had addressed the Afghan Constants General, Bombay, is the issue of a passport to him immediately. Thus, these documents to show his and establish that he had as no interesting of having a permanent residence in India, that the result, the learned Sessions Judge, has correctly hold that this petitioner had not acquired the citizenship of India under Act. 5 of the Constitution.;

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