TAKSIN AHMED Vs. STATE

JUDGEMENT

(1.) The petitioner was convicted of an offence u/s 14 of the Foreigners Act by a Met. Mgte vide his judgment dated 13.1.82 and he was sentenced to R.I. for one year. Feeling aggrieved, he went in appeal but with no success, the appeal having been dismissed by an- Add. Sessions Judge by his judgment dated 17.5.83. Hence, he has come up in revision against his conviction and sentence.

(2.) The fact of this case lie in a very narrow compass. The petitioner was tried on the charge that he was apprehended by the police on 27.6.74 at about 7.30 P.M. when he was present near the tent factory of M/s. Lal Singh & Sons, Wazir pur Industial Area, Delhi. On interrogation he gave out his name as Gaffar which turned out to be false. Eventually it transpired that he was a Pakistan national and had entered India in 1957 on a Pakistan passport with Indian visa endorsed on it. However, he did not return to Pakistan and over-stayed in India until the date he was apprehended by the police. A case under Foreigners Act was registered against him, being FIR No. 624/76, Police Station Sarai Rohilla and he was prosecuted for the said offence. [In paras 3 to 5, evidence is noticed]

(3.) From the foregoing evidence it clearly emerges that the petitioner came to India on Pakistan passport with Indian visa endorsed thereon twice and on both the occasions he went back to Pakistan. It is, however, not clear as to how and when he crossed into India thereafter. Anyhow, this fact is not very relevant in view of the plea raised by the petitioner in the instant case. His contention is that he was born in Kanpur (India) in April 1936 and as such he was a citizen of this country when the Constitution came into force on 26.1.50. The learned counsel for the petitioner has invited my attention in this-context to Ex. PW3/A and PW3/B in which the place of the petitioner has been shown as Kanpur and the year of his birth has been shown as 1936. The petitioner has also placed on record a copy of an entry in a register maintained at village Vasa Dargah, Block Domariaganj, Distt. Basti containing the names of his family members. This includes the name of the petitioner and the certificate appears to have been issued by Kazi Iftkhar Ahmad, Pradhan, of the Block. He has also placed on record a copy of the voters list for Domariaganj constituency of U.P. Assembly. However, as pointed out by the learned Add. Sessions Judge, these documents are of subsequent period i.e. after the entry of the petitioner in India in 1957. However, the entries Ex. PW3/A&PW3/B lend support to the contention of the petitioner that his father was an Indian national and he was residing at Kanpur. It does not stand to reason that the petitioner would have got false entries made wayback in 1957 with regard to the name of his father and the place and year of his birth. Significantly his visit to village Vasa Dargah is also indicated in Ex. PW3/A. No doubt, the burden of proof that he was an Indian national on the day the Constitution of India came into force lies on the petitioner but I think that the onus has to be discharged on the criterion of preponderance of probibi- lities because in the very nature of things it is difficult, if not impossible, for him to adduce direct evidence regarding his birth in India wayback in 1936. He has no doubt adduced some oral evidence but that has not been believed by the courts below. All the same, having regard to the fact that he was about 14 years only when the Constitution of India came into force and that his father had been residing in India all along it would appear that the petitioner was domiciled in India on the date of the Constitution coming into force and it was only subsequently that he went to Pakistan.