STATE OF MAHARASHTRA Vs. IBRAHIM NABIJI ACCUSED

JUDGEMENT

(1.) THE Superintendent of Police, Kama, served a notice upon the respondent Ibrahim Nabiji dated 20th August 1957 that the respondent who was a foreigner as defined under sec. 2 (a) of the Foreigners' Act, 1946, as amended by the Foreigners Laws (Amendment) Act, 1957, having entered India on 31-1-1956 through the Banner Check post on a Pakistan passport No. 374894 dated 3-12-1955 bearing an Indian Visa No: 5993 dated 27-1-56 valid for stay in India till 30-4-56, was unauthorisedly staying in India since 1-5-56 and he was, therefore informed that he should leave India within one month from the date of receipt of the notice, and that failing compliance with the notice he will be prosecuted and deported under the Foreigners Act, 1946. The respondent failed to carry out the direction contained in this notice. The Sub Inspector of Police, Petlad, then filed a complaint in the court of the Judicial Magistrate. F. C, Petlad against the respondent on 23-10-1957 charging him with having committed an offence under section 14 of the Foreigners Act, 1946. ft was stated in the complaint that the respondent was a foreigner within the meaning of the Foreigners ? Laws (Amendment) Act, 1957, and had not obtained under rule 7 of the Foreigners' Order, 1948, the necessary residential permit and had thereby infringed the provisions of sec. 14 of the Foreigners' Act.

(2.) BEFORE the Judicial Magistrate, the respondent claimed that he was not a foreigner but was a citizen of India. He admitted that he had gone to Pakistan in 1951 but he contended that he had not accepted the citizenship of Pakistan. He submitted that even though in his Passport his domicile was shown as "pakistan", that statement was untrue. The learned Judicial Magistrate acquitted the respondent. In his view as the respondent was born in the territory of India and there was no evidence to show that he had renounced his citizenship of India, or that he had voluntarily acquired by naturalisation, registration or otherwise, at any time between 26-1-1950. and 30-12-1955, citizenship of Pakistan, by virtue of the presumption contained in Art. 10 of the Constitution, the respondent must be deemed to be a citizen of India. The learned Magistrate observed that the respondent by "physically migrating to Pakistan", did not lose his Indian Citizenship and the respondent was, therefore, not a foreigner and had not infriged the provisions of sec. 14 of the Foreigners Act, 1946. Against the order of acquittal passed by the Judicial Magistrate, the State has appealed to this Court.

(3.) BEFORE us the arguments advanced on be-half of the State have traversed a ground very much wider than the one on which the case was sought to be argued against the respondent before the trial Magistrate. The learned 'government Pleader contended that the respondent, who had come armed with a Passport of a foreign country describing him as a national of that country, and had obtained a Visa which limited the duration of his stay to the. period specified therein, by overstaying the period prescribed by the Visa, must be deemed to have infringed the provisions of section 14 of the Foreigners Act. It was also contended that as the respondent had failed to obtain a permit as he was by law required to obtain, he had infringed rule 7 framed under the Foreigners' Act and on that account also he had violated the provisions of sec. 14 of the Foreigners Act. Finally it was urged that even if the respondent was not initially a foreigner within the meaning of the Foreigners Act since the date on which the Foreigners' Laws (Amendment) Act, 1957, was brought into operation the respondent became a foreigner and was bound to comply with the directions issued by the District Superintendent of Police and the respondent, by failing to carry out the directions, committed an offence punishable under section 14 of the Foreigners Act.