ABDUL KHADER Vs. STATE

JUDGEMENT

(1.) The petitioner was convicted by the Judicial First Class Magistrate, Adoni for all offence under Section 14 read with Clause (c) of Sub-section (2) of Section 3 of the Foreigners Act of 1940, and sentenced to undergo rigorous imprisonment for eighteen months. On appeal, the Sessions Judge of Kurnool confirmed the conviction and sentence imposed on the accused. Hence this revision application.

(2.) The petitioner came to Adoni from Pakistan on 20-1-1955. He had a Pakistan passport No. 250660 dated 10-1-1955 and C visa No. 2657 dated 14-1-1955 which was valid upto 14-4-1955. He did not go to Pakistan after the expiry of his visa but applied for extension on medical grounds till 2-9-1957. He had therefore to be served with a quit order directing him to leave India after One month from the date of service of that order. This quit order dated 9-8-1957 was served on him on 3-9-1957. As he disobeyed this order and still remained at Adoni, he was prosecuted. The defence is that the accused had been bom and bred up at Adoni where his parents lived, that hp was married in India long ago and that he had six children by that wife, that he after coming from Pakistan had also married another wife in regard to which D. W. 4, who is the Government Khaji at Adoni, gave Exhibit D-1, the marriage certificate dated 29-7-1956, that he had been a tailor for the last 12 years having rented a shop in Roshan market which was managed by D. W. 5 on behalf of the Mosque Committee, that he went to Bombay in search of his son in 1955 and having learnt at Born-bay that his son had gone to Karachi he too went to Karachi and that when he wanted to return to India he had to obtain the passport from Pakistan as he was not allowed to enter India. The accused has, after coming into India, applied to the Minister for Rehabilitation. Government of India, on 9/02/1956 for permission for permanent resettlement in India and he was informed on 1/03/1956 by the Ministry of Home Affairs Government of India, that his application had been forwarded for consideration to the Government of Andhra, Home Department, Kurnool. He received a notice L. Dis. No. 7653/M/58 dated 28-8-57 from the District Magistrate, Kurnool, and in compliance therewith he sent on 30-8-1957 the certificate of birth, a challan No. 3018 dated 30-6-47 of the Adoni Co-operative Town Bank Ltd, in respect of a dealing of his and profession tax receipt under assessment No. 564 dated 10-5-1954 of the Adoni Municipality and prayed for the Issue of the citizenship certificate. He, however, admitted that he received Exhibit P-2, the quit order of the Government of Andhra Pradesh on 3-9-1957, but contends that he is not a "foreigner" being a citizen of India by birth who had temporarily migrated to Pakistan. On his behalf, the plea that since he was awaiting orders on his application for issue of a citizenship certificate he applied for the extension of the visa only by way of caution and that he had no intention of making Pakistan as his permanent home, is urged.

(3.) Mr. Ranalinga Reddy for the petitioner has submitted that while the plea of the accused has not been properly understood by both the lower Courts, the Judicial First Class Magistrate, Adoni, has wrongly treated this as a case to which Section 8 of the Foreigners Act is applicable, and that in basing the conviction on the ground that a determination made by the Government under Sub-section (2) of that provision is final it wrongly concluded the issue whether the accused is a foreigner. He took objection to the reliance placed by both the lower Courts on the conduct of the accused in applying for extension of the period of his visa as it neither constituted evidence nor created any rule of estoppel which precluded the accused from asserting his rights as a citizen of India. A further contention is that the prosecution should prove positively that the accused acquired citizenship of a foreign country, and therefore no action under the Foreigners Act (Act No. XXXI of 1946) could be taken by the Government against the accused. Yet another point viz, that this being a case concerning when or how the accused has acquired the citizenship of another country that matter has to be determined in the manner provided for under Rule 30 and Clause 4 of Schedule III attached to these rules, has also beer, pressed.