Full Judgment Text
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PETITIONER:
FATEH MOHD, SON OF NATHU
Vs.
RESPONDENT:
DELHI ADMINISTRATION
DATE OF JUDGMENT:
27/11/1962
BENCH:
SUBBARAO, K.
BENCH:
SUBBARAO, K.
IMAM, SYED JAFFER
AYYANGAR, N. RAJAGOPALA
MUDHOLKAR, J.R.
CITATION:
1963 AIR 1035 1962 SCR Supl. (2) 560
CITATOR INFO :
R 1974 SC 28 (2)
ACT:
Foreigner-Definition-Amendment, Effect of-Offence committed
by foreigner after amendment-Onus of proof-Foreigners Act,
1916, (31 of 1946), ss. 3, 14-The Foreigners Laws
(Amendment) Act, 1957 (11 of 1957),s. 2 (a)-Constitution of
India, Art, 5.
HEADNOTE:
The appellant entered India on May 9, 1956, on a Pakistani
passport. He had a visa permitting him to stay in India for
three months. He had to leave India on or before August 8,
1956. As he failed to do so, a notice under s. 3 (2) of the
Foreigners Act, 1946, as amended in 1957, was served on him
on November 19, 1959, by the Delhi Administration. As he
did not comply with the requirements of the notice, he was
prosecuted under s. 14 of the Foreigners Act and convicted.
His appeal and revision were dismissed. All came to this
court by special leave. His contention was that he was not
a foreigner within the meaning of the definition of a
foreigner as it existed at the time he entered India, and he
was not a foreigner even under the amended definition.
Held, that the appellant was a foreigner under the amended
definition and he had committed a breach of the order served
on him after the amended definition of foreigner came into
force. In disobeying the directions given to him by the
Delhi Administration, he had committed an offence within the
meaning of s. 14 of the Foreigners Act. Before the
amendment of the definition in 1957, a person born within
His Majesty’s Dominion and owing allegiance was a citizen of
India, but after the amendment in January, 1957 a person who
was not a citizen of India became a foreigner. After that
date, if an order was issued by the Central Government in
exercise of powers conferred on it under s. 3 of the Act, it
was the duty of such a foreigner to obey that order and if
he did not do so, he committed an offence within the meaning
of s. 14 of the Act. The appellant was certainly not a
foreigner when he entered India, but in view of the
amendment of the definition, he became a foreigner after
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January 19, 1957. He could not be convicted for an offence
for an act done by him before the amendment on the
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basis that he was a foreigner, but in the present case he
had been punished for not complying with an order passed
after the amendment.
The burden of proving that he was not a foreigner was on the
appellant and he had failed to discharge that burden. The
legality of an act done by a person must be judged on the
basis of the existing law at the time the act is done.
Union of India v. Ghaus Mohammad, [1962] 1 S.C.R. 744
followed Fida Hussain v. State of Uttar Pradesh 11962] 1
S.C.R. 776, distinguished.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 121 of
1961.
Appeal by special leave from the judgment and order dated
May 26, 1961 of the Punjab High Court, Circuit Bench at
Delhi in Criminal Revision
No. 159-D of 1961.
Nur-ud-din Ahmed and Naunit Lal, for the appellant.
V. D. Mahajan and P. D. Menon for R. N. Sachthey, for the
respondent.
1962. November 27. The judgment of the Court was delivered
by
SUBBA RAO, J.-This appeal by special leave is directed
against the order of the Punjab High Court dismissing the
Revision petition filed against the order of the Additional
Sessions judge, Delhi.
The appellant entered India on May 9, 1956, on a Pakistan
passport dated February 11, 1956. He had a visa endorsed on
the said passport permitting him to stay in India for three
months. Under that visa he had to leave India on or before
August 8, 1956, As he failed to do SO., a notice under s. 3
(2) of the Foreigners Act, 1946 as amended in 1957,
hereinafter called the Act, was served on him on
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November 19, 1959, by the Delhi Administration. By that
notice he was asked to report his presence personally to the
Foreigners Regional Registration Officer, Taj Barracks,
janpath, New Delhi, between 11 A. M. to 12 noon daily and
enter into a personal bond in the amount of Rs. 5,000/- with
two sureties in the amount of Rs. 10,000/- each for the due,
observance of’ the restriction imposed on his movements.
The appellant did not comply with the requirements of the
notice. Therefore he was prosecuted under s. 14 of the Act
for violating the provisions of s. 3 in the Court of the
Sub-Divisional Magistrate, Delhi. The appellant pleaded in
defence that the said notice was not served on him and that
he was a citizen of India. The learned Magistrate held on
the evidence that the said notice was served on him and that
he was not a citizen of India but a foreigner within the
meaning of that Act and that he had committed an offence,
inasmuch as he did not comply with the provisions of the
said notice. On those findings he convicted him under s. 14
of the Act and sentenced him to six months’ rigorous im-
prisonment. On appeal the Sessions Judge, Delhi confirmed
the findings of the Magistrate and dismissed the appeal
filed by him. He held that the burden was upon the
appellant to prove that he was not a foreigner and that he
had failed to discharge the same. He also rejected the plea
of the appellant ’viz. that as on the date he entered India,
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he was not a foreigner within the meaning of the definition
of "foreigner’ as it then stood he could not be convicted,
on the ground that be was prosecuted for an offence
committed after the definition was amended. The High Court
confirmed the conviction of the appellant and the sentence
passed against him. Hence the appeal.
The learned counsel Mr. Nur-ud-Din appearing for the
appellant raised before us the following two points: (1) the
appellant was not a foreigner
563
within the meaning of the definition of a foreigner as
existed at the time he entered India, i. e. on May 9, 1956,
and therefore the High Court went wrong in convicting him,
and (2) the appellant is not a foreigner even under the
amended definition
To appreciate the first contention it will be convenient to
read the relevant provisions of the Foreigners Act, 1946
Section 3 :
"The Central Government may by order make provision, either
generally or with respect to all foreigners or with respect
to any particular foreigner or any prescribed class or des-
cription of foreigner, fir prohibiting, regulating or
restricting the entry of foreigners into India or their
departure therefrom or their presence or continued presence
therein.
(2)In particular and without prejudice to the generality of
the foregoing power, orders made under this section may
provide that the foreigner..........
(a) x x x
(b) x x x
(c) x x x
(d) x x x
(e) shall comply with such conditions as may be prescribed
or specified-
(i) requiting him to reside in a particular place;
(ii) imposing any restrictions on his movements;
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(iii), (iv), (V), (vi), (vii), (viii), (iX), (X)
(f) shall enter into a bond with or without sureties for
the due observance of, or as an alternative to the
enforcement of any or all prescribed or specified
restrictions or conditions:
The definition of a foreigner as it stood in 1953 was
’Foreigner’ means a person who is not a natural born British
subject as defined in sub-sections 1 & 2 of s. 1 of the
British Nationality and Status of Aliens Act, 1914.
Section I (1) of the British Nationality and Status of
Aliens Act, 1914, is in these terms :
’The following persons shall be deemed to be natural-born
British subjects, namely,
(a) any person born within His Majesty’s Dominion and
allegiance.’
The definition of a foreigner was substituted by the
Foreigners Laws (Amendment) Act, 1957 (11 of 1957) S. 2 (a).
This amendment came into force with effect from January 19,
1957. Under the said definition, ,foreigner’ means a person
who is not a citizen of India. Section 14 is : ’If any
person contravenes the provisions of this Act or of any
order made thereunder, or any direction given in pursuance
of this Act or such order, he shall be punished with
imprisonment for a term which may extend to five years and
shall also be liable to fine; and if such person has entered
into a bond in pursuance of clause (f) of Sub-s. (2) of s.
3, his bond shall be forefeited; and any person bound
thereby shall pay the penalty thereof, or show cause to the
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satisfaction of the convicting Court why such penalty
should not be paid.’
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The gist of the foregoing provisions relevant to the present
inquiry may be stated thus : Under the definition of a
foreigner as it stood in the Act in 1953 before the
amendment of 1957, any person barn within His Majesty’s
Dominion and allegiance was a citizen of India but after the
amending Act 11 of 1957 which came into effect from january
19, 1957, a person who is not a citizen of India is a
foreigner. After that date if an order is issued by the
Central Government in exercise of powers conferred on it
under s. 3 of the Act directing a foreigner so defined and
prescribing certain conditions for his stay, it is the duty
of such a foreigner to obey the said order. If he did not,
he would be committing an offence within the meaning of s.
14 of the Act.
In the light of the said provisions let us look at the facts
of the present case. As aforesaid the appellant entered
India in 1956 on a Pakistan passport, the visa endorsed on
it enabled him to stay in India till August 8, 1956. The
Delhi Administration made an order and served on him on
November 19, 1959, imposing the restrictions on his stay.
Admittedly the appellant did not comply with the said
restrictions and therefore lie committed an offence within
the meaning of s. 14 of the Act.
It is contended that as the appellant was not a foreigner at
the time he made his entry into India, he could not be
convicted on the basis he was a foreigner within the meaning
of the definition of a foreigner as subsequently amended.
There is a fallacy underlying in this argument. The
appellant was certainly not a foreigner when he entered
India under the definition of a foreigner as it then stood.
In view of the amendment of the definition he became a
foreigner after January 19, 1957. He could not be convicted
for an offence for an act done by him before the amendment
on the basis he was a
566
foreigner ; for instance an act done by him such as his
entry into India or his noncompliance with the conditions of
an order issued on him before the amendment on the foot that
he was a foreigner. But the offence for which he is now
charged is an act done by him in derogation of an order
issued to him after the amendment. On the date when the
Delhi administration served on him the notice imposing
certain restrictions and directing him to comply with
certain conditions for his stay he was a foreigner within
the meaning of amended definition. On the basis of the
existing law he committed an offence and it will be futile
for him to contend that he was not a foreigner under the
original definition. The legality of the act done by him
must be judged on the basis of the existing law as the act
was done subsequent to the amendment. Reliance is placed
upon the decision of this court in Fida Hussain v. State of
Uttar Pradesh (1) in support of the contention that as the
appellant was not a foreigner when he made the entry, he
could not be convicted on the ground he was a foreigner.
But the facts of that case are different from those in the
present appeal and that decision is clearly distinguishable.
There a person was born at Allahabad at the time when it was
his Majesty’s Dominion.* He had left India to Pakistan but
returned on a passport granted by the Government of Pakistan
on May 16, 1953. He had a visa endorsed on his passport by
the Indian authorities permitting him to stay in India for
three months and this permission was later extended up to
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November 1953. Under Paragraph 7 of the Foreigners Order
1948 issued under s. 3 of the Foreigners Act, every
foreigner entering India on the authority of a visa shall
obtain from the appropriate authority a permit indicating
the period during which he is authorised to remain in India
and shall, unless that period is extended, depart from India
before its expiry. As the appellant stayed after November
15, 1953, without permission given
567
under that order, lie was prosecuted for breach of the said
order. It would be seen from the said facts that the
appellant therein was prosecuted for an offence committed by
him before the Amending Act of 1.957 came into force on
January 19, 1957. This court on the said facts held that
the appellant therein could not be convicted for the breach
of Paragraph 7 of the Foreigners Order as lie not being a.
foreigner at that time could not have committed a breach
thereof, but clearly this decision cannot apply to an
offence committed by a person who falls within the amended
definition of foreigner’, after the Amending Act came into
force. Indeed this court in express terms left open that
question at page 1523 "No question as to the effect of the
amended definition on the appellant’s status fell for our
decision in this case, for we were only concerned with his
status in 1953. We would also point out that no order
appears to have been made concerning the appellant under s.
3(2) (c) and we arc not to be understood as deciding any
question as to whether such an order could or could , not
have been made against the appellant." What has been left
open in that decision is to be considered in the present
case. The appellant who is ’a foreigner under the amended
definition has committed a breach of an order served on him
after the amended definition of a foreigner came to hold the
field. The appellant therefore in disobeying the directions
given to him, by the Delhi Administration his committed an
offence within the meaning of s. 14 of the Act.
Even so it is contended that the appellant is an Indian
citizen and therefore is not a foreigner within the meaning
of the amended definition of a foreigner under the Act.
Some of the relevant provisions of the Constitution and the
Citizenship Act 57 of 1955 may conveniently be extracted.
Article 5 of the Constitution says
"At the commencement of this Constitution,
568
every person who has his domicile in the territory of India
and-
(a) who was born in the territory of India; or
(b) either of whose parents was born in the territory of
India; or
(c) who has been ordinarily resident of the territory of
India for not less than five years immediately preceding
such commencement,
shall be a citizen of India."
Section 9 of the Indian Citizenship Act, 1955 is in these
terms :-
"If in any case not falling under s. 8 any question arises
with reference to this Act or any order made or direction
given thereunder, whether any person is or is not a
foreigner...... the onus of proving that such person is not
a foreigner...... shall, notwithstanding anything contained
in the Indian Evidence Act, 1872 (1 of 1872) lie upon such
person".
Under Art. 5(a) of the Constitution the appellant cannot be
a citizen of India unless he was born in the territory of
India and had his domicile in the territory of India at the
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commencement of the Constitution. In this case the
appellant claimed to be a citizen under Art. 5(a) of the
Constitution. By reason of s. 9 of the Foreigners’ Act
whenever a question arises whether a person is or is not a
foreigner, the onus of proving that he is not a foreigner
lies upon him. The burden is therefore upon the appellant
to establish that he is a citizen of India in the manner
claimed by him and therefore he is not a foreigner. This
court in Union of India v. Ghaus Mohammad (1) accepted this
legal position and laid down at page 748 thus :-"It does not
seem to have
(1) [1962] 1 S.C.R. 744.
569
been realised that the burden of proving that he was not a
foreigner, was on the respondent and appears to have placed
that burden on the Union. This was a wholly wrong approach
to the question," Rightly throwing the onus on the appellant
the Magistrate considered the evidence and came to the
conclusion that the appellant had failed to prove that he
was a citizen of India and therefore not a foreigner. The
learned Additional Sessions judge after noticing that the
onus was on the appellant considered the evidence both oral
and documentary and came to the conclusion that the
appellant had failed to discharge the onus. It cannot be
and indeed is not suggested that the said finding is
vitiated by any error of law, but it is contended that the
Additional Sessions judge was not justified in ignoring the
evidence of ’respectable witnesses who spoke to the fact
that the appellant was born in India and continued to reside
in India at the date of the commencement of the Constitution
and thereafter. The learned Additional Sessions Judge as a
Judge of fact considered the evidence in the light of
probabilities and the documentary evidence and rejected the
same as unworthy of credence. The High Court in revision
refused to interfere with that finding. We do not see any
permissible ground for interference with that finding in an
appeal under Art. 136 of the Constitution.
No other point is raised before us.
The appeal fails and is dismissed.
570