LAWS(ALL)-1959-9-32

MOHD HANIF KHAN Vs. STATE

Decided On September 08, 1959
MOHD.HANIF KHAN Appellant
V/S
STATE Respondents

JUDGEMENT

(1.) The applicant has been convicted under Section 14 of the Foreigners Act for contravention of Rule 7 of the Foreigners Order, 1948. He was born in British India and his parents were residents of British India. He was employed in the Indian Army awd after the partition of India, he went to Karachi with his platoon; He resigned from the Army in 1948 and came to India under a passport obtained as a Pakistani national in 1954. Under the visa he was entitled to stay in India up to 20-8-1954. He did not depart from India for Pakistan on or before 20-8-1954 and has been convicted by the courts below under Section 14 of the Foreigners Act for the alleged contravention of Rule 7 of the Foreigners Order, 1948.

(2.) under Section 14 of the Foreigners Act, a person is punished for contravening the provisions of the Act or of any Order made thereunder. The Foreigners Order, 1948 was made by the Central Government in exercise of the powers conferred by Section 3 of the Act. Rule 7 of the Order reads as follows :

(3.) Now the applicant is said to be guilty of [infringement of Rule 7 by not departing from India on or before 20-8-1954. There is no evidence that he entered India as a tourist; his case is, therefore, not covered by the proviso. There is no evidence that he obtained any permit in compliance with Rule 7 and if there is no evidence of any permit, there is no evidence of the period limiting his stay in India or before the expiry of which he was bound to depart from India. Rule 7 requires a foreigner to depart from India on the expiry of the period mentioned in the permit and not on the expiry of the period mentioned, if at all, in the visa. The period mentioned in the visa is irrelevant and no offence of infringement of Rule 7 is committed by his not departing from India before its expiry. He certainly continued to stay in India after the expiry of the period mentioned in the visa but this act is not prohibited by Rule 7 and does not render him punishable under Section 14 of the Act. A 'permit' is different from a 'visa' arid whatever is laid down in Rule 7 in respect of a permit cannot be applied to a visa. In the absence of proof of the period fixed for his stay in a permit he could not be convicted under Section 14. There is an explanation for his not obtaining a permit because as I shall show presently he was not governed by Rule 7 when he came to India.