Case: Fateh Mohd, Son Of Nathu Vs. Delhi Administration

2. 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 November 19, 1959, by the Delhi Administration. By that notice he was asked to report his presence personally to the Foreigners Regional Registration Office, 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 restrictions 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 imprisonment. 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, 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 he 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 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 November 19, 1959, by the Delhi Administration. By that notice he was asked to report his presence personally to the Foreigners Regional Registration Office, 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 restrictions 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 imprisonment. 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, 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 he 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.

Reasoning:
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 foreigner; for instance an act done by him such as his entry into India or his non-compliance with the conditions of an order issued on him before the amendment on the foot that he was a foreigner. But the offense 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 dale 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 existing law he committed an offence and it will be futile for him to contend that he was not a foreigner under the originalhas 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 has committed an offense within the meaning of S. 14 of the Act.9. 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 thethrowing 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