(1.) In this appeal against acquittal, the only question for consideration is whether the respondent is a Foreigner as defined in the Foreigners Act, 1945 (hereinafter referred to as 'the Act'). The trial Court has acquitted the respondent on the following finding :
(2.) Mr. P.K. Mohanty, the learned Public Prosecutor submitted that the order of acquittal of the trial Court is wholly misconceived and is contrary to S.9 of the Act. There being no change of nationality, determination by the Central Government is not a pre-requisite for prosecuting the accused.
(3.) Mr. Ashok Mukherjee, the learned counsel engaged by this Court to defend the respondent at state expense has cited another decision of this Court reported in ILR (1965) Cut 38 (State of Orissa v. Abdus Sovan Khan) and submitted that the accused having explained in his statement under S.313 Cr.P.C. that he is an Indian Citizen having remained in India for 40 to 45 years and the prosecution evidence being that the accused is seen in Kharian Road by the witnesses since 12 to 18 years, it is to be assumed that the accused is continuing to reside in India much prior to 26-1-1950, which satisfies the condition of Citizenship under Art.5 of the Constitution of India. 3A. The contention of Mr. Mukherjee has been directly answered by the Supreme Court in a decision reported in AIR 1974 SC 28 (Masud Khan v. State of Uttar Pradesh). It has been held (para 2) :