STATE OF U P Vs. WALI MOHAMMAD

JUDGEMENT

(1.) THIS Govern ment appeal is directed against the order dated 16-9-1968 passed by the 1st Tempo rary Civfl and Sessions Judge, Aligarh setting aside the conviction and sentence of the res pondent under Section 14 of the Foreigners Act The respondent was convicted by the to whether the respondent was a citizen of India. If he was not a citizen of India he could be treated as a foreigner and be proceeded against for contravention of para graph 7 (2) of the Foreigners Order. Before the enactment of the Citizenship Act, 1955 (No. 57 of 1955) the only provisions of law on the basis of which citizenship could be determined were those contained in the Constitution of India. Article 5 of the Con stitution reads as under:-

(2.) IN the present case there is no controversy that the respondent was born in India and that he returned to India in 1954. So far as the date of his migration to Pakis tan is concerned, the finding of feet record ed by the Court below is that he migrated in the year 1949. The exact date or month of his migration could not be fixed from die evidence in the case. Hence, the possibility of his migration after the 1st March, 1947 but prior to the 26th November, 1949 can not be ruled out. It is precisely of this little lacuna that the respondent wants to take advantage and the entire contention raised on behalf of the respondent is based on this circumstance, namely, the uncertainty of the exact date of his migration. In support of his contention the learned counsel for the respondent placed reliance on Article 394 of the Constitution which reads as follows:-

(3.) SRI Sharafat AH, learned counsel for the respondent relied on a decision of the Supreme Court in Shanno Devi v. Man-gal Sain, AIR 1961 SC 58 wherein while construing Article 6 (b) of the Constitution it was observed by Das Gupta, J. (In para graph 16 of the Reports.).