A. Roy, J. - (1.) The Petitioner Imtiazuddin Khan, alias Prafulla Kumar Das, has made this application for Revision against an order of a Presidency Magistrate in Calcutta by which he has been convicted of an offence under Sec. 14 of the Foreigners Act, 1946, and sentenced to simple imprisonment for one month and to pay a fine of Rs. 30, in default, to undergo simple imprisonment for seven days. In that order, awarding punishment upon conviction, the learned Magistrate also directed that the accused be deported out of India after he serves out the sentence. The allegations upon which this Petitioner was prosecuted were that he was a Pakistani national and had entered India on December 19, 1965, and continued to stay at Calcutta without any valid travel document.
(2.) By making this application the whole of the order of the Magistrate was impugned by contending that the decision on the question of facts was wrong and the order of conviction and imposition of sentences were also illegal and erroneous. The last part of the order by which the learned Presidency Magistrate had directed deportation after the sentence imposed would be served out was also challenged as illegal and without jurisdiction.
(3.) The Rule was issued only upon the ground directed against deportation part of the order. No Rule was issued in respect of the other part of that order by which the Petitioner has been convicted of an offence under Sec. 14 of the Foreigners Act, because we were of the view that that order of conviction and also sentences imposed were unassailable. The learned Magistrate had correctly held that under Sec. 9 of the Foreigners Act, 1946, the burden of proving that he is not a foreigner is on the accused. In the present case, the accused had made no attempt to discharge that onus either by adducing oral or documentary evidence. Prosecution has proved by the testimony of P.W. 1 Sudhir Kumar Sarkar, who is a Sub -Inspector of Police, and also documents proved in the case the elements of the offence alleged against this accused. P.W 3 M.K. Das Burman, Inspector of Police, who arrested this accused and also P.W. 9 Anil Mohan Roy, a Sub -Inspector of Police, who accompanied P.W. 3 at the time of that arrest) provided clear evidence that the accused could not produce any valid travel document for his stay in India and had admitted that he had no passport at all. Those witnesses were not cross -examined even.;