STATE Vs. YAKUB

JUDGEMENT

(1.) This appeal by the State is directed against an appellate order of acquittal passed by the learned Sessions Judge of Moradabad, The facts giving rise to it are not in dispute, and, stated briefly, are as follows .

(2.) Yaqub, the respondent, was originally a resident of Moradabad. In 1947 he went away to Pakistan where he remained till his entry into India on the 12th May, 1954, on the authority of a Pakistan Passport No. 168008 dated the 30th January 1954 and Indian Visa of the 'C' category -- No. 25804 dated 5th May 1954 -- which permitted him to stay in India for three months. Subsequently that period was extended upto the 10th January 1956. The respondent, however, did not leave India by that time with the result that a notice was served on him on the 2nd October 1957 requiring him to leave India within 30 days. The respondent did not comply with that notice either. He was therefore, prosecuted under Section 14 of the Foreigners Act 1946, -- hereinafter called 'the Act of 1946' -- for the contravention of para 7 of the Foreigners Order. '1948 -- hereinafter called 'the Order of 1948' -- framed under Section 3 of the Act of 1946. 2a. The defence of the respondent inter alia was, that, as he was not a 'foreigner' at the time of his entry into India, his case did not fall under para 7 of the Order of 1948 and hence he could not be convicted for the alleged contravention thereof. The trial court repelled all his pleas and convicted and sentenced him under Section 14 of the Act of 1946 to imprisonment and fine. On appeal the learned Sessions Judge reversed that order and acquitted the respondent. Hence this appeal by the State.

(3.) Mr. Bhatt, learned counsel for the State, advanced two-fold contentions in support of this appeal. His first contention was that as soon as the amended definition of 'foreigner' came into effect by virtue of Section 2 (a) of the Foreigners Laws (Amendment) Act 1957 -- hereinafter called 'the Amendment Act of 1957' -- the respondent -- whatever his status previous to that date might have been, became a 'foreigner' to whom the provisions of para 7 of the Order of 1948 were attracted : so that if he committed breach of any of the provisions contained therein, ho was liable to prosecution and conviction under Section 14 of the Act of 1946. His second contention was, that since the respondent in his application to the Pakistan Government for the issue of a passport to him, had described himself as a Pakistani citizen he must be deemed to have voluntarily given up his citizenship as from the date of the said application and so also he became a 'foreigner' for the purposes of the Act of 1946 and the Order of 1948. In order to properly appreciate these contentions a reference to the various enactments and orders bearing thereon is necessary at the very outset. The first enactment to which reference has to be made is the Act of 1946. Section 2 of that Act defines 'foreigner' as a person who inter alia :