V.N. Misra, J.@mdashThis is an application/revision by Munney Khan accused against the judgment and order dated 13-5-1981 by Sri R.N. Agarwal, Ist Additional Sessions Judge, Rampur in Criminal Appeal No. 53 of 1981 by means of which he dismissed the appeal and confirmed the conviction of the applicant u/s 14, Foreigners'' Act and the sentence of 18 months R. I. imposed on him.
2. The prosecution case was that the applicant was a Pakistani national, a resident of Karachi in Pakistan and came to India on 7-4-55 on the basis of a Pakistani passort No. 285921 dated 16-3-1955 and Indian visa No. 17412 dated 24-3-1955 for a period of three months. He entered India through Check Post Atari road, and was to stay here under the visa granted to him upto 23-6-55. After having entered India he came to Rampur but did not leave India after the expiry of three months and became untraceable. On 2-2-1975 he was traced out in the town of Haldwani in the district of Nainital by the police and order dated 20-3-1969 was served on him on 2-2-1975 and he was asked to leave India within 24 hours. Instead of leaving India, however, he again went to Rampur and was arrested there, the next day. He was, therefore, prosecuted u/s 14, Foreigner''s Act, 1946, and has been convicted as aforesaid.
3. The applicant contended that he was never a Pakistani national, had never migrated to Pakistan and had always been an Indian citizen. He contended that in 1953 he was married in India and did not acquire citizenship of Pakistan. He denied that any notice dated 20-3-1969 was served on him to leave India within 24 hours and he alleged that in 1968 also he was arrested and prosecuted u/s 14, Foreigner''s Act but was acquitted. It was contended that his brother Sabir Khan, who resembled him, had migrated to Pakistan and used to come to India under his name and the passort relied upon by the prosecution may have been obtained in his name by him.
4. Nikah register in which the marriage of the applicant was said to have been entered in the year 1953 was not produced before the trying Magistrate. The applicant only produced a copy of entry in this register certified by some official of that institution, but since the entry was not properly certified, nor was it certified by public servant, therefore, it needed proof and this entry was not proved and it was not shown that the applicant was ever married in the year 1953 in Rampur.
5. The contention of the applicant that his brother Sabir Khan who had migrated to Pakistan used to come to India on a Pakistani passport obtained in the name of the applicant can also not be believed. When Sabir Khan had migrated to Pakistan and had become a Pakistani national there was no difficulty in his coming to India on a temporary permit in his own name and it was needless for him to get the passport unnecessarily in the name of the applicant. When notice was served on the applicant he signed the notice on 2-2-1975 and he had also signed the application for visa and both the signatures tally and are certainly of the same person which too shows that it was the applicant himself who obtained the passport and who made the application for visa and came to India. In the application for visa which the applicant made he had shown his year of migration to Pakistan as 1948. This was, however, erased out and it was only with the help of microscope that the trying Magistrate was able to find out that the year noted as the year of migration was 1948. If Sabir Khan had obtained this visa he would never have changed the year of migration as mentioned in the application for visa because he was admittedly a Pakistani national and it was to serve no useful purpose for him to say that he did not migrate to Pakistan in 1948. This would show that the applicant came to India on a Pakistani passport in which he represented that he was a Pakistani national and with an Indian visa in which he again said that he was a Pakistani national and gave his year of migration as 1948. It is also very significant that the photo of the applicant was affixed in his application for visa and though he tried to put off the prosecution contention that he made the application and he said that his brother Sabir Khan resembled him and this was his photo. This photo was found to be the photo of the applicant himself who could have changed a little from the year 1955 when he made the application for visa to 1975 when he was tried by the Magistrate.
6. It would thus be seen that the applicant migrated to Pakistan in the year 1948. He came to India in 1955 under a Pakistani passport and visa in which it was represented that he was a Pakistani national. In Khalil Ahmad v. State of U. P. 1962 AWR 83, it was held that a person who had obtained a Pakistani passport and had declared his allegiance to Pakistan Government could be considered to be a foreigner. Similarly, in State of U. P. v. Jafar Ali 1963 AWR 93 it was held that Pakistani passport was a presumptive proof of the Appellant''s nationality. Therefore, the mere fact that the applicant migrated to Pakistan and then entered India under-a Pakistani passport by itself shows that he had become a Pakistani national as stated in the passport and had lost his nationality and citizenship of India.
7. Then the notice was served on the applicant on 2-2-1975 at Haldwani and he was asked to quit India within 24 hours. Since the applicant had certainly become a foreigner under the amended definition of ''foreigner'' by means of Amending Act XI of 1957 therefore in any case such an order to quit could be served on him u/s 3(2), Foreigners'' Act. Because inspite of this order he did not leave India therefore he was rightly prosecuted and convicted u/s 14, Foreigners'' Act. It was held in
8. The learned Counsel for the applicant cited Fida Hussain v. State of U. P. 1961 AWR 687 SCin which the Appellant entered India in 1953. It was held that any person born within His Majesty''s dominions was deemed to be natural born British subject according to Section 1(1)(a) British Nationality and Status of Aliens Act, 1914, and a British subject so defined could not be a foreigner u/s 2(a), Foreigners'' Act. This decision too is of no help to the applicant because even in 1953 a foreigner was a person who was not a naturally born British subject as defined in British Nationality and Status of Aliens Act or had not been granted a certificate of naturalisation and was not a citizen of India. Since the applicant was shown not to have been the citizen of India at the time when he was served with the notice he could certainly be asked to quit India and when he did not he could certainly be prosecuted and convicted u/s 14 Foreigners'' Act.
9. The applicant entered India in the year 1955 under a Pakistani passport and under a visa for three months. It was stated both in the Pakistani passport and the visa that he was a Pakistani national and had migrated to Pakistan in the year 1948. He could not be taken to be a citizen of India because he could not be a Pakistani national and at the same time a citizen of India. He, therefore, entered India as a foreigner and it was for him to prove that he had acquired Indian citizenship after his entry. Even if he was not a foreigner at the time when he entered India in 1955 after Amending Act XI of 1957 he became a foreigner and on an order u/s 3(2), Foreigners'' Act he had to leave India within 24 hours and because he did not he was rightly prosecuted and convicted by the lower courts.
10. It was lastly urged that for an offence like the one alleged against the applicant the sentence awarded to him is too severe. The sentence for this reason may be reduced somewhat.
11. While therefore this revision is dismissed and the conviction of the accused is maintained the sentence awarded to him is reduced from 18 months to one year RI. He shall be confined in jail and if the Government so wants he will be served with a notice again before he leaves the jail and asked to quit the country. The applicant is on bail. He shall be taken into custody forthwith and sent to jail to serve out his sentence.
