STATE OF ASSAM versus JILKADAR ALI

Citation: [1973] 1 S.C.R. 685 · Decided: 18-07-1972 · Supreme Court of India · Bench: J.M. SHELAT · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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STATE OF ASMM 
v. 
JILKADAR ALI 
.July 18, 1972 
[J. M. SHELAT AND H. R. KHANNA, JJ.] 
685 
ForeignerJf Act 1946--Stction 14 read with clause 7 <>/ the Foreigners' 
Order 1948-Wheth~r a person who opted for service in Pakistan afllr 
partition and leaving India to settle in Pakistan permanent(y will be con-
sidered as a "foreigner'", under the Foreigners' Act 1946. 
Prior to 194 7, the respondent was in the serviCe of the Government 
of Assam as an unarmed Police constable and on partition, he opted for 
service in Pakistan. The respondent went to the then East Pakistan and 
joined Pakistan Government 11ervice as a peon. 
He entered India in 1953 on the strength of a Pakistani passport but 
returned to Pakistan in 1954. 
Again in 1955, he obtained an Indian 
visa which was valid upto January 26, 1955. 
On the strength of that 
visa, he entered India but instead of returning to Pakistan, he over-stayed 
until he was detec'ted and arrested. He was then prosecuted under s. 14 
of the Foreigners'' Act 1946 read with Clause 7 of the Foreigners Order, 
1948. 
The Additional District Magistrate oonvicted and rentenced him and 
the Sessions Judge also upheld the said order of conviction and sentence.· 
In a revision application, the High Court, relying on Fida Hussain v. U.P., 
[1962], 1. S.C.R. 776, reversed the said order of conviction and sentence 
and acquitted him on the ground that he was· not a 'foreigner' under •· 
2(a) of the Foreigners' Act, but was a citizen of India under Art. 5 of the 
Constitution; when he eniered India in 1955 (before the said definition 
was amended in 1957. 
Allowing the appeal, 
Held : ( 1) The respondent was a foreigner when he entered India in 
1955 as the definition of 'foreigner' then stood and by overstayin~ beyond 
the period permissible under the visa, he dearly committed breach of 
Gause 7 of the Foreigners Order, 1948 and was liable to be convicted 
under S. 14 of the Foreigners Act, 1946. (690B-C] 
The crucial point in the pre5ent case, was whether the Respondent 
had migrated to Pakistan between 1947 and-1950. If he did, then not-
withstanding his complying wHh the requirement of .Art. 5, his case would 
fall under Art. 7 and he would he deemed not to be a citizen even on 
the date of his entry in India in 1955. 
Considering the facts of the 
present case, viz., the option exercised by the respondent for Pakistan 
service, his having secured release from Indian service, as a ~onstable, his 
going to Pakistan .and obtaining service there as a peon, his staying there 
for a long ,l<'riod; his obtaining Pakistani passport and visas declaring 
therein that he had acquired Pakistani citizenship and domicile etc; there 
could be no doubt that he had gone to Pakistan permanently. His case 
thus fell within Art. 7 and therefore, at his entry in India in 1955 he 
was a person who was deemed not to he a. citizen of India. [688C-G] 
H. P. v. Petr Mohammad, [1963] 1 S.C.R. 429, Kulathi/ Mammu v. 
Kerala, [1966] 3 S.C.R. 706, Stat• v. Ibrahim Nabiji, A.LR. 1959 Born. 
526 •nd Stat• v. Akub, A.LR. 1961 All. 428, referred to. 
686 
SUPREME COURT REPORTS 
\ 
I 
[1973] 1 S.C.K. 
ciUM1NAL APPELLATE Jm1smcnoN: Criminal Ap~al .No. 
176 of 1969. 
• 
Appeal from the Judgment 
and order dated November 12, 
1968 of the Assam and Nagaland High Court in Criminal Revis-
sion No. 73 of 1968. 
K. P. Gupta, for. the appellant 
V. A. Seiyid Mahmud and S. K. Nandy, for the respondent .• 
The Judgment of the Court was delivered by 
Shelat, J. Prior to August 15, 1947, the respondent'was in 
the servi.ce of the Government of Assam as an unarmed Police 
Constable bearing No. 407, serial No. 29. On partition, he opted 
for service in Pakistan: Consequent on his exercisil)J1; such option, 
the Assam Government passed an order.No.~2155, dated De~m­
ber 31, 1947, releasing him from service and directing him to 
report to the Inspector-General of Police, Dacca for service there. 
The respondent thereafter went to the then East Pakistan and 
joined Pakistan Government service as a peon in the sub-registrar's 
office at Fenchuganj, District Sylhet. 
, 
He entered India on December 23, 1953.on the strength of 
a Pakistani passport, dated September 10, 1953 ·and an Indian 
visa dated November 11, ,1953.· He appears to haye :returned to 
Pakistan on April 25, 1954. On January 27, 1955, he again 
applied for and obtained an Indian visa which was valid upto 
January 26, 1955. On the strength of that

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