LexIBRAHIM versus STATE OF RAJASTHAN
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7 S.C.R. SUPREl\IE COURT REPORTS IBRAHIM 'v STATE OF RAJASTHAN 441 [M. HIDAYATULLAH AND N. RAJAGOPALA AYYANGAR, JJ.) Foreigners Act, 1946 (31 of 1946), ss. 2(a) 3.9 and 14- Whether a person is a foreigner has to be riccid·?d in relation to the time of the offence-The fact. that he was not a foreigner before the time of offence; not material-Onus of proof on the accused-Citizenship Act, 1955 (LVII of 1955). s. 9(2). The appellant, a Pakistani National originally came over to India on a Pakistani Passport ancl 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 ofience of having entered India without a passport in contravention of s. (2) (a) of the Foreigners Act, 1946. His defence was t.hat 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 not himself. The trial court accepted this defence and acquitted him. The State appealed to the High Court and the High Court rever;ed the finding of the lower court and held l\im 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 rever81ng the fh1ding of the -trial court on the issue of the identity of the appellant. Secondly it was sub- mitted that under s. 2(2) of the Foreigners Act as it stood before the Amendment which crune onto force on January 19, 1957 the appellant though a Pakistani citizen was not a "foreigner" and hence his entry into India before that date \Vould not con- stitute an offence. It was contended further that the co1.<rts had no jurisdiction to determine whether the appellant was or was not a foreigner by reason of the provision of s. 9(2) of the Indian Citizen-ship act 1955. Held: The appellant was the person who was deported on April 21, 1957 and the f;nding of the High Court on the question of his identity was corre:::t. (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 Ci.irlier date he was not foreigner. Since the appellant was deported in April 1957 and he came back to India subsequently without a passport he v..•as a foreigner under the amendment provision which came into force on January 19, 1957 had committed an offence under s. 3 of the Foreigners Act. (iii) Under s. 9 of the Foreigners Act 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 Tndia and it is alleged that he has lost his Indian Citizenship by reason of acquiring the nationality of tl:e foreign State that any question of invoking the provisions of s. 9(2) of the Citizenship Act arises. In the present case the ap- pellant 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 s. 9(2) of the Citizenship Act and he had committed an offence under s. 3 (2)(a) of the Foreigners Act. 1961 Afarch 24 1964 Ibrahim v. Stat. of Rajaathan .Ayyangar, J. 442 SUPREME COURT REPORTS [196!] CRIMINAL APPELLATE JURISDICTION: Criminal Appeals No. 14 of 1963. Appeal by spec~l1eave from the judgment and order dated November 9, 1962 of the Rajasthan High Court in D.B. Criminal Appeal No. 502 of 1961. S. Shaukat Hussain, for the appellant. H. R. Khanna and S. P. Nayar, for the respondent. March 24, 1964. The Judgment of the Court was deli- vered 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 con- travention of s. 3 of the Foreigners Act (Act XXXI of 1946) which is an offence under s. 14 of that Act. The relevant por- tion of s. 3 enacts : - "3. ([) The Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreig- ner or any prescribed class or description of foreigners, for prohibiting regulating or restrict- ing 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 genera- lity of t
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