ABDUL JALIL Vs. THE STATE

JUDGEMENT

(1.) THE petitioner has been convicted by the Magistrate, First Class, Cachar, Silchar under Section 14 of the Foreigners Act (hereinafter called 'the Act') and sentenced to six months rigorous imprisonment. On appeal to the Sessions Judge the conviction and sentence were confirmed.

(2.) THE facts as set out in the judgment of the court below are that on the 26th November 1957 an order was issued by the Superintendent of Police, Cachar directing the petitioner to leave the limits of the District of Cachar within one month of the receipt of the order. The order was served on the petitioner on the 1st December 1957. The order purports to have been issued under Section 3(2)(c) of the Act in the exercise of the powers delegated to the Superintendent of Police, Cachar under Section 12 of the Act by the Governor of Assam. The petitioner is described as a Pakistan national in the order. There is no dispute that the order was issued by the Superintendent of Police, Cachar and was duly served on the petitioner. The petitioner tailed to comply with the said order and on the face of it, he is liable to be prosecuted under Section 14 of the Act. The contention raised by the petitioner is that the order issued by the Superintendent of Police under Section 3(2)(c) of the Act is illegal inasmuch as the petitioner is not a foreigner. The expression 'foreigner' was defined by Section 2(a) of the Foreigners Act 31 of 1946 as modified by Act 38 of 1947 as follows:

(3.) THE next case referred to is the case of Nasir Ahmed v. . In this case on 19th May 1957 a notice on behalf of the Delhi state was issued under Section 3(2)(c) of the Foreigners Act directing Nasir Ahmad and his wife and minor daughter not to remain in India alter the, expiry of three days from the date on which the notice is served on them. This notice was issued on the ground that they were Pakistan nationals. A petition was filet under Article 226 of the Constitution challenging the validity of this order on the ground that the petitioner and his wife and daughter were not Pakistan Nationals. They claimed to be citizens of India. The petition was allowed on the ground that on the assertion that they were citizens of India they would not be foreigners within the meaning of the Act. The Foreigners Act provide no machinery for determination of the fact whether a person is a citizen of India or not. The Indian Citizenship Act provided a machinery for the determination of the question as to whether a person is a citizen or not, of India. In this are three days' time within which the petitioned, and his wife and daughter were asked to leave India was not sufficient for them to get a decision from the Central Government as to whether they were or were not citizens of India. The Petition therefore, under Article 226 of the Constitution was allowed. In present case the petitioner is not challenging the validity of the order under Article 226 of the Constitution. He was given a notice to quit India within a month. If his case was covered by Section 9 of the Indian Citizenship Act, he had sufficient time to get a decision from the Central Government. He had violated the order and in his trial under Section 14 of the Act the question as to whether die petitioner is a citizen or not is examinable by the Magistrate and it cannot be said that the notice issued was illegal. This case does not lay down that the petitioner will not be governed by the definition of the word 'foreigner' under the amending Act.