MOHD YASIM KHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) THE applicant Mohd. Yasin Khan has been convicted under section 14 of the Foreigners Act read with Rule 6 of the Indian Passport Rules, 1950 and sentenced to undergo imprisonment for 15 months, R. I. THE order has been confirmed in Cr. Appeal No. 71 of 1973 by the Sessions Judge of Ghazipur by his order dated 26-7-1973. THE prosecution case is that the applicant is a foreigner and having entered India vide Pakistani Passport no. 518168 dated 10.9.1969 and Indian Visa no. 113093 clause (c) dated 24.12.1969 overstayed in India without a valid permit. He entered the Indian territory on 8.1.1970 via check post Hardaspur and returned back to Pakistan on 22.2.1970. He again entered the Indian territory on 20.5.1970 without any travel document and he was prosecuted by the G R. P., Siliguri under section 3(2) of the I. P. Act and on 22.5.1970 he was sentenced to undergo R. I. for five days. After being released from the jail on 26.5.1970, he was pushed back to Pakistan but on 27.5.1970 he re-entered Indian territory once again unlawfully and began to live surreptitiously at Bahuara. On 28.7.1970 he was arrested near Dildarnagar railway station. THE first information report was then lodged against him. Investigation followed and after completing the investigation, he was charge-sheeted giving rise to the present case. THE applicant pleaded not guilty. He claimed to be an Indian citizen. He examined Abdul Hai Khan in defence. He also filed a sale deed dated 16.1.1957. On behalf of the prosecution S. I. Ram Janam Misra (P.W.I), S. I. Gyan Prakash Misra (P.W. 2) and S. I. Mahendra Pratap Singh (P.W.3) were examined. THEy all proved that the applicant had entered India first on Pakistani Passport and that he had entered and re-entered Indian territory in the manner stated above. His application for Visa (Ext. Ka-) too has been proved. In this application he had given the date of migration as 1947. Both the lower courts after considering the entire evidence on record arrived at the conclusion that the applicant was a Pakistani national and had committed the offence under section 14 of the Foreigners Act. He was, therefore, convicted and sentenced as stated above. Feeling aggrieved, the applicant has filed this revision. THE main point argued is that a controversy about the acquisition of Pakistani nationality has been raised and as such this matter could have been decided by the Central Government only under section 9(2) of the Citizenship Act, 1955. Reliance was also placed on the case of Mohd. Ayub Khan v. Commissioner of Police. Madras and others (A.I. R. 1965 S. C. 1623.) in which it was held that it was still possible for the person who had entered India on a foreign passport to show that he had not voluntarily obtained the passport or that he was compelled to obtain the same. That was a case in which Mohd. Ayub Khan had entered India on the basis of the passport dated April 1, 1953. .Under the Foreigners Laws (Amendment Act of 1957) (Act No. II of 1957), the definition of 'foreigner' has been changed and the definition, as now stand is "foreigner means a person who is not a citizen of India." This Act came into force on the 19th of January, 1957. It is obvious that on 19th of January, 1957 the applicant Mohd. Yasin Khan was not a citizen of India and had entered India after that date on the basis of the foreign passport and Indian Visa. Apart from it, he never raised the controversy when he entered the Indian territory on 8.1 1970 and returned back to Pakistan on 22.2.1970. He again entered India on 22.5.1970 when he was convicted and deported. He then re-entered India on 27.5.1970. It is significant that in the application for visa he had declared that he had left India in 1947. THEse documents have been proved by the prosecution witnesses. It has also been proved by the prosecution evidence that he had entered India and then went back and re-entered and was then prosecuted and deported. When the applicant himself declared that he had left India in 1947,it would mean that he was not an Indian citizen on 16.1.1950 when the Constitution of India came into force. It is not a case in which it can be said that he was originally an Indian citizen under the Constitution and then lost his nationality thereafter. In that case only a decision by the Central Government might have been necessary under section 9 of the Indian Citizenship Act and not otherwise. It was so held by their Lordships of the Supreme Court in the case of Ibrahim v. State of Rajasthan (A. I. R. 1965 S. C. p. 618.). In that case it was observed as follows : "it is only where there is proof that a person is, to start with, a citizen of India and it is alleged that he has lost his Indian citizenship by reason of acquiring the nationality of foreign State that any question of invoking the provisions of section 9(2) of the Citizenship Act arises. That is not the case here. THE case of the prosecution was that the appellant was a Pakistani national who had come over to India on a valid Pakistani passport in 1957 and had been legally deported out of India in April, 1957. On those facts there is no question of section 9(2) of the Citizenship Act being invoked or coming into play. THE offence charged was that having been deported once out of India he again entered India without proper travel documents in violation of the provisions of section 8 (2) of the Foreigners Act.", In my opinion that authority applies on all fours to the facts of the present case. THE applicant was, therefore, rightly convicted. Learned counsel for the applicant next argued that the sentence is excessive. THE age of the applicant given is 70 years, at the time of his examination on 5.6.1971. But I find that his date of birth is 10 6.1911 in the application in form no. 88-H for extending his stay in India. It, therefore appears that he had not given correct age before the magistrate. He had entered India again after having been deported. Under these circumstances it is not possible to take a lenient view in this case. THEre is no force in this revision. THE applicant is on bail. He shall surrender to his bail bonds and be taken into custody forthwith to serve out the sentence awarded to him.