STATE OF MAHARASHTRA Vs. GHORAISHI QURESHI SAYED MOHOMED

JUDGEMENT

(1.) THIS is an appeal by the State against the acquittal of the respondent, who was prosecuted for having committed an offence under Section 14 of the Foreigners Act, 1946, read with paragraph 7 of the Foreigners' Order, 1948. The case of the prosecution is that the respondent is an Iranian National and he failed to depart from India within the prescribed time limit, which expired on the 10th of February, 1962. The prosecution alleges that the Residential permit which was granted to him was valid only up to the 10th of February, 1962. The prosecution have produced a certificate at Registration issued to the respondent under the Registration of Foreigners Rule, 1939 (Exh. 4 ). This certificate seems to have been issued on the 10th of February, 1949. It shows the year of arrival of the respondent in India was "1935". The address of his East residence outside India has been stated as "tezd Iran". The manner of acquiring his nationality has been mentioned as, "by birth". The prosecution has also relied on an application made by the respondent on the 19th of April, 1961 (Exh. B ). That application is on a form required to be filled in by an alien desiring to extend his stay in India. In this application also, the nationality of the respondent has been shown as "iranian", and the place and date of his birth have been shown as "1922, Yezd. Iran". He is shown to be the holder of a passport, and the date of the passport and the date up to which it is valid are also mentioned against column 6 as "7-5-1959 issued at Bombay, valid till 7-5-62". It is common ground that this was a passport issued by the Government of Iran. This application also confirms that the year of the respondent's arrival in India was "1935,". Then there are two columns which are material. Against Col. 10: "whether resident in India previously and, if so, for what period", he has stated "yes, since my arrival in India". Against column 11: "date of expiry of authorised period of residence in India" he has stated "10-2-61". The reason for extension of stay is stated as "to continue business". Reliance is also placed on a Residential Permit (Exh. C ). The Residential Permit mentions that the respondent, "a foreigner of Iranian Nationality, holding Iranian Passport No. T/462915 /136 dated 7th May 1959. issued at Bombay is permitted to remain in India until 10th February, 1961. " Paragraph 4 of the Residential Permit specifically mentions that "application for an extension of period of this permit must be made at least fifteen days before 10-2-1961". At the bottom of this permit there is an endorsement, "permitted to extend stay in India till 10-2-1962 by Commissioner of Police, Bombay. " This endorsement is signed, by the Registration Officer, Bombay, it is the expiry of this period on the 10fh of February, 1962, and the failure on the part of the respondent to have his permit extended, that has resulted in the present prosecution. There are two other documents on which also the prosecution relied. It is alleged that although the period of his permit expired on the 10th February, 1962, the respondent actually applied for extension on the 12th of February, 1962. In this application (Exh. D) also the respondent has given his nationality as "iranian", and the place and date of his birth have been mentioned as "1922 Yezd Iran". The purpose of visit to India is given as "for business". Against the column "whether resident of India previously and, if so, for what period", the respondent has stated "long resident". The period for which extension was required is stated as "one year". The reason for extension of stay in India has been stated as "to continue my above profession". Another document is a passport (Exh. E ). This is a passport which was issued on the 7th of May, 1959. It is issued by the Government of Iran and the domicile of the respondent has been shown as "iran, residence Bombay". There are two more documents. One is an application by the respondent to the Deputy Commissioner of Police, Special Branch II, C. I. D. , Bombay, (Exh. F ). This is an application for a "no objection" certificate. It is stated that the respondent intended to proceed to Iran along with his wife and two small children for the purpose of a change of climate and to see relatives. The other one is a form filled in by the respondent for the grant of a "no objection" certificate (Exh. F/1 ). In this also, the respondent has staled that his nationality was "iranian" and the purpose of his visit' to India was "business". It must also be mentioned that the objection of his proposed journey to Iran has been mentioned as change of climate" and the probable date of his return to India is given as "within six months". The reason for returning to India is "to enable me to continue my business" This is the material on the basis of which the prosecution, wanted to establish that the respondent had committed an offence under Section 14 of the Foreigners' Act 1946, read with Paragraph 7 of the Foreigners' Order, 1948. In support of its case the prosecution has examined S. I. P. Anant Shivram Patne. He has given evidence on the basis of the documents in his possession, and the documents, to which I have already referred have been produced by him. There is hardly any cross-examination of this witness; a question was asked as to whether there was anything on the record to show that the respondent had gone to Iran, and the witness has admitted that there was no such record.

(2.) THE respondent was examined under Section 342, Criminal Procedure Code. He has admitted that Exh. E, the passport, is his passport, and the registration Certificate registering him as a foreigner (Exh A), was his Registration Certificate. Then he has admitted that he is an Iranian National. The explanation given of the period permitting him to stay in India is that he had in fact gone on the 10th of February, 1962, to apply for extension of stay in India, but no officer was present to receive his application. The next day, according to him, happened to be a Sunday and that is how he presented his application on the 12th of February, 1962. The respondent, however, stated that he had not committed any offence. Subsequent to this statement under Section 342 Criminal Procedure Code, the respondent has also filed a written statement. In the written statement the respondent points out that he came to India in 1935 and has been doing the business of running a hotel and restaurant in Bombay since then. He claims to have been domiciled in India. The material part of his statement in this regard is as follows:- "i have been domiciled in this country I have no intention of going back to Iran. I want to live in this country and the here. " IN support of his contention that he was not a foreigner, he also raised a legal contention, namely, that the question whether he had lost Indian Nationality can be decided only by the Central Government. He repeats his explanation for not presenting his application on or before the 10th of February, 1962

(3.) THE learned Additional Chief Presidency Magistrate held that the prosecution had failed to establish that the respondent was a foreigner and hence he had not committed any offence. He, therefore, acquitted the respondent, and that is why the State has now come up in appeal.