STATE Vs. SK KORBAN KHAN

JUDGEMENT

(1.) SK. Korban Khan, originally a resident of Kendrapara, District Cuttack now alleged to be a Pakisthani national was charged for not leaving India as per directions of the State Government. He was proceeded against under the foreigners' Act and the Rules made thereunder. The sub-divisional Magistrate, kendrapara acquitted him of the charge on the finding that the accused respondent is an Indian Citizen and also that the case is not maintainable since the central Government had not declared the accused as a foreigner.

(2.) ON October 1, 1961 the accused entered India under a Pakisthani Passport dated Nov. 21, 1959. By an order made by the State Government be was directed to leave India by September 28, 1962. Subsequently the period was extended till november 15, 1962 but the accused did not leave India. Thereafter Kendrapara Police was directed to proceed against the accused under the Foreigners Act for not having complied with the order and for continuing to stay in India without authority. The First Information Report was accordingly filed on December 12, 62 and he was charged and acquitted by the learned Magistrate as aforesaid.

(3.) IT is now well settled by their Lordships of the Supreme Court in Abdul Sattar haji Ibrahim Patel v. State of Gujarat, Cri. Appeal No. 153 of 1961 D/-17-2-1964: (AIR 1965 SC 810) that the legislature has placed the burden of proof on a person who is accused of an offence punishable under Section 14 of the Foreigners Act. This section provides inter alia that where any question arises with reference to the said Act, or any order made, or direction given thereunder, whether any person is or is not a foreigner, the onus of proving that such a person Is not a foreigner, shall notwithstanding anything contained in the Indian Evidence Act, lie upon such person so that in the present proceedings in deciding the question as to whether the accused was an Indian Citizen within the meaning of Article 5 of the constitution, the onus of proof will have to be placed on the accused to show that he was domiciled in the territory of India on January 25, 1950 and that he satisfied one of the three conditions prescribed by Clauses (a), (b) and (c) of the said Article.