MOOSA Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner was arrested on 2-10-74 while he was in the Chokli bazaar for violation of S.14 of the Foreigners Act read with R.3 of the Indian Passport Rules. In due course a charge sheet was filed against him in the Court of the Additional First Class Magistrate (Judicial), Tellicherry and the case was registered as C. C. 312 of 1975 The petitioner pleaded not guilty. While the above case was pending, apprehending that he would be deported from the country, the petitioner filed O. P. 6084 of 1975 before this court and obtained an interim injunction restraining the State from arresting, detaining or deporting the petitioner in pursuance of the steps taken against him in the Foreigners Act. The present petition is filed by the petitioner to quash the proceedings in C. C. 312 of 1975 and to direct the Additional First Class Magistrate (Judicial), Tellicherry to discharge the petitioner.

(2.) The case put forward by the petitioner is that he was residing in India on 26th January, 1950 when the Constitution of India came into force and that by virtue of Art.5 of the Constitution, he is a citizen of India. He was forced to accept a Pakistani passport under certain compelling circumstances and by a mistaken advice without fully knowing the ultimate consequences thereof. The acceptance of Pakistani passport being involuntary, did not deprive him of his Indian citizenship. A dispute regarding his citizenship arose due to the initiation of the proceedings under the Foreigners Act and a petition under S.9 (2) of the Citizenship Act, praying for an adjudication of the dispute had to be filed. That application is still pending consideration before the Central Government. No prosecution would lie against him until the Central Government decides the dispute.

(3.) The question to be decided is whether the petitioner who was originally a citizen of India lost bis citizenship and is a foreigner. There is no doubt that if the petitioner is a foreign national and is not in possession of a valid passport, proceedings can be initiated against him under S.14 of the Foreigners Act. But then there is the question who is to decide whether the petitioner is a foreign national. S.9 of the Citizenship Act deals with termination of citizenship. It reads: