- (1.) This appeal, by special leave, against the judgment of the High Court of Jodhpur raises for consideration the legality of the conviction of the appellant for a contravention of S. 3 of the Foreigners Act (Act XXXI of 1946) which is an offence under S. 14 of that Act. The relevant portion of S. 3 enacts : "3. (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 foreigners, for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein. (2) In particular and without prejudice to the generality of the foregoing power, orders made under this Section may provide that the foreigner- (a) shall not enter India or shall enter India only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed;.. . . . . . . . . . . " Section 14 reads : "14. If any person contravenes the provisions of this Act or of any order made thereunder, or any direction given in pursuance of his Act or such order, he shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; and if such person has entered into a bond in pursuance of cl. (f) of sub-s. (2) of S. 3, his bond shall be forfeited, and any person bound thereby shall pay the penalty thereof, or show cause to the satisfaction of the convicting Court why such penalty should not be paid."
(2.) The facts given rise to the appeal are briefly these. The case of the prosecution was that the appellant - Ibrahim, s/o Mirua resident of Rajgarh in Bikaner Division - was a Pakistani national who had originally come over to India on a Pakistani passport issued to him in 1954 and on the strength of a visa granted in December, 1956. He was then found to be overstaying in India since February 18, 1957 and an order was thereupon passed in March, 1957 for his deportation. This order was given effect to and on April 21, 1957 be was taken across the Pakistan border at the Check Post Munabao by the Indian police officials and deported. Then followed the events which have given rise to the present proceedings. Subsequent to his deportation to Pakistan and on a date as regards which the prosecution had no information, the appellant had, unknown to the Indian authorities, managed to come over to India clandestinely and he was found again in Rajgarh. On seeing him there the sub-Inspector of Churu made a report to the Station House Officer of Rajgarh by which he drew the latter's attention to the fact that the appellant who had been deported had managed to cross the border on the side of Ganganagar and had re-entered India and he brought this to his notice for the purpose of action being taken. The accused was thereupon apprehended and was charged with an offence of having entered India without a passport in contravention of S. 3 (2) (a) of the Foreigners Act.
(3.) The defence of the appellant was simple. He said he had been in India all the time, since birth had never gone to Pakistan and so had never come here in 1957 with a Pakistani passport, was never deported therefrom and therefore there was no question of his having entered India without a passport. In other words, his defence was that he was not the person who had come over in 1957 and had been deported to Pakistan in April 1957.;