minal Appeals No 14 of 1963
Appeal by special leave from the judgment and order dated November 9 1962 of the Rajasthan High Court in DB Criminal Appeal No 502 of 1961
section Shaukat Hussain for the appellant
H R Khanna and section P Nayar for the respondent
March 24 1964
The Judgment of the Court was delivered by AYYANGAR J
This appeal by special leave against the judgment of the High Court of Jodhpur raises for considera tion the legality of the conviction of the appellant for a contravention of section 3 of the Act XXXI of 1946 which is an offence under section 14 of that Act
The relevant portion of section 3 enacts 3 1 The Central Government may be order make provision either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigners for prohibiting regulating or restricting the entry of foreigners into India or other de parture 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 shall not enter India or shall enter India only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed        
Section 14 reads 14
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 subsection 2 of section 3
his bond shall be forfeited and any person bound thereby shall pay the penalty thereof or show cause to the satisfaction of the convicting Court why such penalty should not be paid
 443 The facts giving rise to the appeal are briefly these The case of the prosecution was that the appellant Ibrahim so Miru a resident of Rajgarh in Bikaner Division was a Pakistani national who had originally come over to India on a Pakistani passport issued to him in 1954 and on the strength of a visa granted in December 1956
He was then found to be overstaying in India since February 18 1957 and an order was thereupon passed in March 1957 for his deportation
This order was given effect to and on April 21 1957 be was taken across the Pakistan border at the Check Post Munabao by the Indian police officials and deported
Then followed the events which have given rise to the present proceedings
Subsequent to his deportation to Pakistan and on a date as regards which the prosecution had no information the appellant had unknown to the Indian authorities managed to come over to India clandestinely and he was found again in made a report to the Station House Officer of Rajgarh by which he drew the latter s attention to the fact that the appellant who had been deported had managed to cross the border on the side of Ganganagar and had re entered India and he brought this to his notice for the purpose of action being taken
The accused was thereupon apprehended and was charged with an offence of having entered India without a passport in contravention of section 32a of the 
The defence of the appellant was simple
He said he had been in India all the time since birth had never gone to Pakistan and so had never come here in 1957 with a Pakistani passport was never deported therefrom and therefore there was no question of his having entered India without a passport
in other words his defence was that he was not the person who had come over in 1957 and had been deported to Pakistan in April 1957
In support of their case the prosecution proved the order of Government by which Ibrahim son of Meeru of Rajgarh had been directed to be deported in which is found a reference to his having come over to India with a passport and having overstayed the time permitted by the visa the general diary of the Emigration Check Post Munabao dated April 21 1957 which recited that on April 21 1957 the deportee Ibrahim had come with a Head Constable and that the deportation order had been given effect to and an entry in the deportation register of the Check Post which recited the date and number of the Pakistani passport and the authority by which the order of deportation had been passed and the carrying out of the actual deportation
In order to establish the identity of the appellant with Ibrahim mentioned in these documents the prosecution examined two witnesses Shiv Rattan who was the Police Inspector in charge of the 444 Munabao Check Post at the relevant date PW 2 and Govind Singh who was a peon who was posted at the police lines at Churn and who accompanied Dube Singh Head Constable when Ibrahim was taken from Rajgarh to the Check Post at Munabao for being deported
These two witnesses identified the appellant who was present in Court Ibrahim whom they had seen off at the border Check Post in execution of the order to deport
The learned Magistrate however was not satisfied with this proof of identity because he was of the view that the two prosecution Witnesses PWs 2 and 3could not after the lapse of 4 years be believed when they said that they remembered that the appellant was Ibrahim whom they had seen deported at the Check Post
The learned Magistrate also held that there was some discrepancy in the father s name of Ibrahim in one of the documents produced by the prosecution which according to him did not tally with the name of the appellant s father
On these grounds the learned Magistrate acquitted the accused
The respondent State filed an appeal to the High Court against this order of acquittal and the learned Judges holding that there could be no doubt about the identification by PWs 2 and 3 of the appellant as the Ibrahim whom they had deported reversed the order of acquittal and held the appellant guilty of the offence charged and sentenced him to a term of imprisonment
It is from this judgment of the High Court that the present appeal has been filed pursuant to leave granted by this Court
The first point urged by learned counsel for the appellant was as regards the identity of the appellant with Ibrahim
On this we are quite satisfied that the learned Judges were correct in their appreciation of the evidence in the case
Both the witnesses PWs 2 and 3 are public servants and there is no reason why they should depose falsely against the appellant
The documents produced as regards which there is no challenge give the name of the person deported as Ibrahim his father as Miru and besides they specify his age as 27 which it is conceded tallies with the description of the appellant
The only point that was suggested by learned Counsel was that in exhibit P 1 the deporting register at the Check Post the name of Ibrahim s father was stated to have been entered as Murra and not Miru
When however it was pointed out to learned Counsel during the course of the arguments that there was a possibility of these words written in Urdu being wrongly transliterated in the English learned Counsel did not persist in the point
If then Ibrahim so Miru aged 27 was deported and there is evidence adduced which has been accepted by the High Court that it was the appellant that was deported on the former occasion we find no substance in the argument as regards this question of identity
445 The second submission of learned counsel was based on the fact that under section 2a of the  as originally enacted a citizen of Pakistan which was a member of the British Commonwealth was not a foreigner within that Act and that citizens of Pakistan became foreigners only by virtue of the amendment effected by Central Act XI of 1957 which came into force on January 19 1957
The argument based on this feature was as follows A person who can be held guilty of a contravention of section 3 of the is only a foreigner
Even according to the case of the prosecution the appellant had come over to India on the strength of a Pakistani
passport issued in 1954 and under a visa of December 1956
It must therefore be taken that he had crossed over to India before the 19th January 1957
On that date he was not a foreigner though a Pakistani as he was a citizen of a Common wealth country
He could not in law become a foreigner subsequently and no action could be taken against him on the footing that he had become a foreigner
We see no merit in this submission
A prima facie reading of the would show that if on the date when the offence is committed a person is a foreigner as defined by the Act it would be no excuse for him to say that on an earlier date he was not a foreigner
But it is however unnecessary to consider this point further because firstly there is no proof on the record before us that the appellant entered India before January 19 1957
But even if he had it would only mean that the earlier order of deportation which was passed in MarchApril 1957 was a wrong order and that certainly is not a matter with which we are concerned because it is common ground if the identity of the appellant is held to be established that the appellant was deported to Pakistan in April 1957
He could come over to India only subsequent to April 1957 and if he did come over it is also common ground that he came over without a passport
As the date upon which he could have come over was certainly after April 1957 by which date section 2a of the containing the definition of Foreigner had been amended the appellant was a foreigner when he came into India without a valid passport and visa in contravention of the provisions of section 3 of the  and that is the offence with which he is now being charged
We find therefore that there is no substance in this point
Lastly it was submitted that the Courts could have no jurisdiction to determine whether the appellant was a foreigner and that their jurisdiction in that regard was barred by the provisions of section 92 of the 
This argument proceeds upon a misapprehension of the legal position
In the first place under section 9 of the the onus is upon the person who is accused tinder that Act to 446 prove that he is not a foreigner
In the present case once the plea regarding the absence of identity of the appellant with the deportee of April 1957 was rejected it could not be suggested that the appellant was ever an Indian citizen
It is only where there is proof that a person is to start with a citizen of India and it is alleged that he has lost his Indian citizenship by reason of acquiring the nationality of a foreign State that they question of invoking the provisions of section 92 of the arises
That is not the case here
The case of the pro secution was that the appellant was a Pakistani national who had come over to India on a valid Pakistani passport in 1957 and had been legally deported out of India in April 1957
Or those facts there is no question of section 92 of the being invoked or coming into play
The offence charged was that having been deported once out of India he again entered India without proper travel documents in violation of the provisions of section 32a of the 
There was one further point that was mentioned by learned Counsel but which we did not permit him to argue
Learned Counsel said that the order now passed was one by the State Government and that there was no proof that the Central Government had delegated this power to the State Government
Apart from the point being without substance in view of the terms of section 32a we have extracted earlier and which was the offence with which the appellant was charged this point about delegation was never urged in the Courts below and consequently no evidence was led to establish delegation under section 12 of the Act if that was necessary for sustaining the prosecution in the present case
As this point was not raised in the Courts below we declined to permit learned Counsel to raise it before us
We consider that the learned Judges were right in holding that the prosecution had established the offence charged against the accused
There are no merits in the appeal which fails and is dis missed


Summary:
The appellant a Pakistani National originally came over to India on a Pakistani Passport and on the strength of visa
He was found to be overstaying in India and he was deported on April 21 1957
Subsequently on finding him again in India he was charged with an offence of having entered India without a passport in contravention of section 2a of the 
His defence was that he had been in India from his birth and that the person who was said to have been deported in 1957 was some other and riot himself
The trial court accepted this defence and acquitted him
The State appealed to the High Court and the High Court reversed the finding of the lower court and held him guilty of the offence charged
The present appeal was filed on a special leave granted by this Court
The first contention of the appellant was that the High Court was wrong in reversing the finding of the trial court on the issue of the identity of the appellant
Secondly it was submitted that under section 22 of the as it stood before the Amendment which came into force on January 19 1957 the appellant though a Pakistani citizen was not a foreigner and hence his entry into India before that date would not constitute an offence
It was contended further that the courts had no jurisdiction to determine whether the appellant was or was not a foreigner by reason of the provision of section 92 of the Indian Citizen ship act 1955
Held The appellant was the person who was deported on April 21 1957 and the finding of the High Court on the question of his identity was correct
ii If on the date when the offence is committed a person is a foreigner as defined by the Act it would be no excuse for him to say that on an earlier date he was not foreigner
Since the appellant was deported in April 1957 and he came back to India subsequently without a passport he was a foreigner under the amendment provision which came into force on January 19 1957 had committed an offence under s 3 of the 
iii Under section 9 of the the onus is upon the person who is accused under the Act to prove that he is not a foreigner
It is only where there is proof that a person is to start with a citizen of India and it is alleged that he has lost his Indian Citizenship by reason of acquiring the nationality of the foreign State that any question of invoking the provisions of section 92 of the Citizenship Act arises
In the present case the appellant a Pakistani national came to India originally with a Pakistani Passport and after his deportation in April 1957 came back to India without a passport and hence he cannot invoke section 92 of the Citizenship Act and lie had committed an offence under section 32a of the  442