STATE OF MAHARASHTRA Vs. SHARIFBHAI JAMALBHAI

JUDGEMENT

(1.) THIS is a reference made by the learned Sessions Judge of Baroda and it raises a question whether clause 3, schedule 111 of the Citizenship Rules, 1956, is ultra vires Art. 19 of the Constitution. The reference arises in this way. In the case of State v. Sharifbhai jamalbhai, which is pending in the Court of the judicial Magistrate, First Class, First Court, Baroda, the accused Sharifbhai jamalbhai is being prosecuted for an infringement of the provisions of clause 7 of the Foreigners Order, 1948, which infringement is made punishable under S. 14 of the Foreigners Act, 1946. Sharifbhai was born in Baroda on 7th December 1933. He has produced a birth certificate in support of that fact. He was living in Baroda till the year 1951. He has produced two ration cards Exhs, 8 and 7 to show that he was drawing ration for himself and his people in the years 1949 and 1951 in Baroda. He has also produced Exh. 6, a muster roll of the Yamuna Mills, Baroda, to show that till December 1951 he was serving the said Mills. It would appear that Sharifbhai left India and went to Pakistan in January 1952. He lived in Pakistan from January 1952 till 1st August 1954. Thereafter, and it may be noted that this is not disputed, he entered India on the basis of a Pakistani passport. It is not disputed that a Pakistani passport would be issued only to a Pakistan national and to none else. After the Pakistani passport was issued to the accused on the 3rd of August 1954, he approached the High Commissioner for India in Pakistan for obtaining a Visa, and the High Commissioner granted him a Visa under the 'c' category. Now, a Visa under the 'c' category could only be granted to a Pakistani national. The Visa which was granted by the High Commissioner for India in Pakistan to the accused under the 'c category was endorsed on the 6th November 1954 on the passport of the accused. It would appear that a few days after the 6th November 1954 the accused entered India. On the 18th June 1957 a notice was served upon the accused by the District Superintendent of Police, Baroda, calling upon him to leave India within one month from the date of service of the notice as he was a foreigner. The accused did not comply with the notice and, therefore, on 31st July 1957 a complaint was filed against him, and the charge which was made against him was that he had infringed the provisions of Cl. 7 of the Foreigners Order, 1948, and had thereby committed an offence punishable under S. 14 of the Foreigners Act, 1946.

(2.) NOW, the contention of the State is that the fact that the accused had on the 3rd August, 1954 obtained a passport from the Government of Pakistan, which was a Pakistani passport, is conclusive proof of the accused having voluntarily acquired the citizenship of Pakistan before the 3rd August 1954. For this contention, the State relies upon Cl. 3, Sch. III of the Citizenship Rules, 1956. On the other hand, it is the contention of the accused that Cl. 3, Sch. III of the Citizenship Rules, 1956, is ultra vires Art. 19 of the Constitution and therefore he could not be said to have committed an infringement of Cl. 7 of the Foreigners Order, 1948.

(3.) NOW. Cl. 3, Sch. III of the Citizenship Exiles, 1956, is in these words: