AFZAR ALI BAIG Vs. THE STATE

JUDGEMENT

(1.) THE is a revision against the appellate judgment of the Additional Sessions Judge of Cuttack maintaining the conviction of the Petitioner under Section 14 of the Foreigners Act, 1946 and the sentence of three months' rigorous imprisonment and a fine of Rs. 50/ - passed by a First class Magistrate of Cuttack.

(2.) THE Petitioner was originally a resident of village Routrapur, Sadar P.S. in Cuttack district where his father Mohammed Ali Baig (d.w. 1) has a house and some lands. The said Mohammed AU Baig is working as a sorting Postman in the Postal Department at Cuttack. The Petitioner appears to have been born in village Routrapur on the 4th November 1935. He studied in Angni High School from 1943 to 1951. He failed in the Matriculation Examination and then left Orissa in September 1952 for Dacca in East Pakistan where he managed to secure a job as a Clerk in the General Post Office. Early in 1955 he applied for a visa for a trip to Orissa to see his parents and near relations (vide Ext. 9). In that application he described himself as of Pakistan nationality stating that he held a passport No. 417858 dated 21 -12 -53 issued by the Passport Officer, Government of East Bengal. He applied for a visa available for a period of one year from 7 -3 -1955. The visa was issued in due course and was made valid from 10th March 1955 to 9th March 1956. Having thus entered India with the said passport and the said visa the Petitioner never returned to Pakistan after the expiry of the period. On the other hand he appears to have applied for a permit, for long term stay in India, to Government who however rejected the same. He was informed on the 29th August 1956 (Ext. 2) that he should leave India within two months. Again on the 26th February 1957 (Ext. 3) he was directed to leave India within one month. In a subsequent letter of June 1957 (Ext. 4) the Government of Orissa made it clear that the prayer of the Petitioner for grant of a permanent resettlement permit in India had been rejected by the Government of India and that he should leave the country within one month failing which he should be deported under the provision of the Foreigners Act. Then, on the 16th October 1957, (ext. 5) the State Government informed the Superintendent of Police Cuttack, through the Special Branch that a notice should be served on the Petitioner to quit the country within a month from the date of service of notice. On receipt of this letter the Superintendent of Police issued notice to the Petitioner (Ext. 6) on the 1st November 1957, directing him to leave India within a month from the date of receipt of the same. Though the notice was served on the Petitioner on 20th November 1957 he did not leave India within the period prescribed therein. On the other hand his mother filed a representation on his behalf (ext. 8) to the Prime Minister of India requesting him to stay the operation of the deportation order. Nothing came out of this representation and in due course the Petitioner was prosecuted, and convicted and sentenced as stated above.

(3.) IT is true that the Petitioner was born in Orissa and his father is an Indian citizen. As a minor the Petitioner had the same citizenship as that of his father. When be went to Pakistan in September 152 he was undoubtedly a minor, but he stayed in Pakistan after attaining majority and also joined Pakistan Government service as a clerk in the General Post Office at Dacca. He also obtained a Pakistani passport and in his application for B visa he described himself as a Pakistan national and wanted permission to visit India for a period of one year, to see his parents. By virtue of Article 7 of the Con situations he clearly lost his Indian citizenship when he stayed in Pakistan after attaining majority. The true meaning of the expression "migrated from the territory of India" occurring in Article 7 of the Constitution has been explained by their Lordships of the Supreme Court in a very recent (unreported) decision in Smt. Shanno Devi v. Mangal Swain Civil Appeal No. 247 of 1960. They pointed out that the work "migration" connotes not only going to a country but going there with the intention of residing there permanently the Petitioner's intention to reside in Pakistan permanently must be gathered from his own conduct in securing a job as Clerk in the General Post Office at Dacca, in obtaining a Pakistani pass Port and in declaring himself as a Pakistani national in his application for a vis; Doubtless the Petitioner has led evidence to show that after his return to India on the strength of the B visa he married in Orissa. There is also some evidence to show that the Petitioner ran away to Pakistan because he' failed in the Matriculation Examination and was severely rebuked by his father. On the basis of these facts it was urged by Mr. Mohanty that the Petitioner 's going to Pakistan was only for a brief sojourn brought about by the waywardness of an immature boy and that he had no intention of permanently residing there. This argument runs counter not only to the declaration given by the Petitioner in the B visa mentioned above but also to the affidavit sworn by the Petitioner himself (ext. 7) on 19th December 1957 before the Magistrate after the issue of the quit notice on him. Therein he says: