Judgment

SARKAR, J. : The respondent was convicted by the Judicial Magistrate of Adoni in the State of Andhra Pradesh, under S. 14 of the Foreigners Act, 1946. His appeal to the Sessions Judge of Kurnool was dismissed. He then moved the High Court of Andhra Pradesh in revision and the revision petition was allowed. Hence the present appeal by the State of Andhra Pradesh.

2. The facts found were these: On January 20, 1955, the respondent had come to Adoni on a passport granted by the Government of Pakistan which bore the date January 10, 1955. The passport had endorsed on it a visa granted by the India authorities which permitted the respondent to stay in India up to April 14, 1955. The respondent continued to stay on in India after that date. On some date, not precisely ascertainable from the record, he appears to have made a representation to the Government of India for extension of his visa till September 2, 1957, on grounds of health. The records do not however show what order, if any, was made on this representation. On September 3, 1957, an order dated August 9, 1957, made by the Government of Andhra Pradesh requiring him to leave India, was served on the respondent. As the respondent did not leave India as directed by this order, he was prosecuted with the result earlier stated.

3. The passport showed that the respondent was born at Adoni in 1924. The respondent appears to have produced an extract from the municipal birth register, which is not on the record, but presumably showed that he was so born. The only evidence on the record of the date when he left India, shows that that must have been at the end of 1954 or early in 1955. There is evidence to show that he had been paying rent for his shop at Adoni for about ten years prior to1958 and his parents, brothers, wife and children were and, had always been in India.

4. The respondent was charged with the breach of the order to leave India which had been made under S. 3(2) (c) of the Foreigners Act. Now the order could not be made on him, neither could he be convicted for breach of it, if he was not a foreigner. That was the defence of the respondent, namely, that he was not a foreigner. The question is, was he a foreigner?

5. The learned Judicial Magistrate found that by obtaining the passport from the Pakistan authorities, "he has disowned Indian nationality and he has ceased to be an Indian National." He also held that S. 9 of the Foreigners Act did not apply to the case but S. 8 of that Act did and that under that section a decision made by the Government that a person is a foreigner is final and such a decision has been made in this case regarding the respondent as the Government had decided not to grant him an extension of his visa. On these grounds he found that the respondent was a foreigner.

6. It seems to us that both these grounds are untenable. Section 8 applies to a case where "a foreigner is recognised as a national by the law of more than one foreign country or where for any reason, it is uncertain what nationality if any is to be ascribed to a foreigner." The section provides that in such cases the prescribed authority has power to decide of which country the foreigner is to be treated as the national and such decision shall be final. The section, therefore, applies to a person who is a foreigner and the question is of which foreign country he is a national. In the case of the respondent no such question arose and no decision could be or was made by any prescribed authority of such question. The learned Magistrate therefore clearly went wrong in relying on S. 8.

7. As regards the passport, the learned Magistrate did not come to the finding that is proved the respondent to have been a Pakistani national all along. What he did was to think that the respondent who had earlier been an Indian national, had by obtaining it, disowned Indian nationality and ceased to be an Indian national.

8. Now, S. 9(2) of the Citizenship Act, 1955, provides that if any question arise