STATE OF KERALA Vs. KUNHAMMED

JUDGEMENT

(1.) This is an appeal filed by the State against the order of the District Magistrate (J), Kozhikode in C. C. 165/58 under which he acquitted the respondent. The charge sheet filed by the police against the respondent was for offence under Rule 3 read with Rule 6 of the Indian Passport Rules and para 7 of the Indian Foreigners Act, 1946. The case was that the accused who is a Pakistanee citizen had come to Kundotti within the Indian Union on 16-3-53 with a valid passport and visa issued by the High Commissioner for India in Pakistan and returned to Pakistan on 2-12-53 and that later he again came to India and was found at Kundotti on 14-9-58 without a passport or visa or any valid travel document from the authorities concerned or a residential passport for stay in India.

(2.) P. W. 1 is the Sub Inspector of Police who was in Kundotti till December 1955. He has proved that the accused had gone to his police station on 16-9-53 with a Pakistan passport No. 126015 and C. Visa No. 38420 dated 3-9-53, that his arrival had been noted in the station general diary and that the accused had left India on 2-12-1953. He proved Ext. P. 1, the register of Pakistanees maintained in the regular course of business at his police station. Ext. P. 2 is the particular entry with regard to this accused. Ext. P. 3 is a C. Visa application of the accused, wherein the accused has described himself as a Pakistanee. Ext. P. 4 is the memo received by him along with Ext. P. 3 from the District Police Office, Kozhikode and Ext. P. 5 is the endorsement on Ext. P. 4 made by P. W. 1. P. W. 2 is the Adhikari of the Kundotti amsom. He says that the accused is a Pakistanee since 10 years and that since about 6 months he has been seeing the accused in Kundotti. P. W. 3 is the Sub-Inspector of Police, Kundotti who arrested the accused on 14-9-58. He says that when the accused was arrested, he had with him a certificate of identity, Ext. P. 6, issued by the Political Agent in Persian Gulf. P. W. 4 is a clerk in the District Police Office who proved the documents which he had produced from the office of the District Superintendent of Police. On this evidence a charge under Section. 14 of the Foreigners Act 1946 read with para 7 of the Foreigners Order 1948 was framed against the accused. No charge was framed under Rule 3 read with Rule 6 of the Indian Passport Rules. It is not known why such a charge was not framed or why the Public Prosecutor did not request the court to frame such a charge.

(3.) The case of the accused was that he is not a foreigner, but he is an Indian citizen. He relies on Ext. P. 6 the identity card. When questioned about Ext. P. 3, the application for visa, he admitted his signature to that document, but he denied knowledge of its contents and stated that the entries contained therein were made by his brother and that what is contained therein is not correct. According to his statement, it is clear that he had no passport or visa to visit India and his case seems to be that he is an Indian citizen and as such there is no need for any passport or visa. The learned District Magistrate held that the prosecution has not succeeded in proving that the accused is a foreigner and therefore found him not guilty under para 7 of the Foreigners Order 1948 and acquitted the accused.