Shukla, J. - (1.) THIS habeas corpus petition has been made under Section 491, Cr. P. C. read with Chapter XXI of the Rules of Court praying that the respondent No. 2 be directed to release the petitioner-who has been detained on the allegation that he is a foreigner.
(2.) THE question whether Fida Hus sain is a foreigner has been canvassed in a series of proceedings since the year 1960. It is said in his petition that he was born in Qasba Kara, police station Saini in the district of Allahabad. His parents and an cestors were all born at the same place and were Indian citizens. They had their domi cile and permanent residence in Kara, dis trict Allahabad. The petitioner too had his permanent residence and domicile in the same district and is an Indian citizen. On the 26th November, 1949 he was living at the same place and received information about the illness "of a near relation whom he held in high esteem and affection." He was in hurry and so he went to Pakistan without any permit or travel document. After the recovery of the said relation he returned to India in 1953 but since by that time restrictions had been imposed it was not possible for him to enter into India without a passport or proper travel docu ment. Hence, he returned to India on a Pakistani passport and after his arrival in this country he applied for his permanent stay and residence here, which request was not allowed. He claims that he never relin quished his Indian citizenship, that he had no intention to make Pakistan his permanent abode, that he had gone there only temporarily and so he continued to be an Indian citizen. It appears that the petitioner over-stayed the period for which he was entitled to remain in India and hence he was prosecuted under Section 14 of the Foreigners Act by the Sub-divisional Magis trate, Sirathu, district Allahabad. He con tested the case but he was convicted by the Magistrate whose judgment was upheld in appeal by the Sessions Judge of Allahabad. He preferred a revision which was dismissed by the High Court. He then preferred cri minal appeal No. 49 of 1960 in the Supreme Court which was allowed. He was acquit ted by the order and judgment of the Sup reme Court dated 5-4- 1961, reported in AIR 1961 SC 1522, Fida Hussain v. State of U. P. The petitioner was arrested on 1-6- 1972 by the local intelligence unit and the police of Saini. He was released on bail by the order of the Sub-Divisional Magistrate, Sirathu dated 2-6-1972 but was again arrest ed on 19-6-1972 by the order of the Senior Superintendent of Police, Allahabad (Civil Authority), and since then he has been kept under detention in the Central Jail, Naini, Allahabad.
(3.) THE opposite parties contested the case and filed a counter-affidavit where in it was admitted that the petitioner was born in Qasba Kara, district Allahabad, but it was denied that he was an Indian citizen. It was averred that enquiries revealed_ that the petitioner migrated to Pakistan without obtaining any permit or travel document in the beginning of 1949, much prior to 26-11-1949. It was admitted that he returned to India in 1953 on the basis of a Pakistani passport. The petitioner's allegation that he had gone to Pakistan only temporarily on receiving information about the illness of a near relation was not admitted. It was stated that the petitioner was a foreigner and was liable to prosecution and deporta tion.;