Judgment

RAY, J.: - This appeal is by certificate under Article 132 (1) and Article 134 (1) (c) of the Constitution against the judgment dated 2 August, 1965 of the Circuit Bench of the Punjab High Court at Delhi. The certificate was given on the principal ground whether the respondent had migrated to Pakistan or was a citizen of India.

2. The respondent Mohd. Iqbal was convicted by the Sub-Divisional Magistrate, Delhi on 22 July, 1964 under section 14 of the Foreigners Act and sentenced to undergo six months rigorous imprisonment. The order was upheld on appeal by the Additional Sessions Judge on 15 April. 1965. The Circuit Bench of the Punjab High Court set aside the conviction and relying on the decision of this Court in Shanno Devi v. Mangal Sain, AIR 1961 SC 58 held that Mohd. Iqbal had not migrated from India.

3. The respondent being treated as a foreigner and a Pakistani national was charged with having entered India on the authority of a Pakistani passport on 31 May, 1956 and having subsequently obtained extension of stay in India upto 30 November, 1956 from the Delhi Administration and thereafter not having returned to Pakistan and continued unauthorised stay in India in contravention of R. 7 (2) of the Foreigners Order, 1948 whereby the respondent was required to obtain a residential permit on or before 5 January, 1960 from the Registration Officer, Delhi and in contravention of that the respondent continued staying in Delhi without obtaining the requisite residential permit on or before 5 January. 1960 and was apprehended on 5 October, 1961 without possessing any residential permit from the Registration Officer, Delhi and thereby the respondent contravened the provisions of section 7 (2) of the Foreigners Act.

4. The prosecution case was that the respondent left India in 1947 and came to India with a Pakistani passport dated 27 March, 1954. The Pakistani passport was valid upto 26 March, 1959. On 27 April, 1954, the respondent obtained visa at Lahore for entry into India and on 2 May, 1954 he applied for extension of the visa upto 2 April, 1955. On 25 March, 1955 he left India for Pakistan. He came to India for the second time on 14 May, 1955 and obtained extension of visa upto 21 May, 1956. He went back to Pakistan. He came to India for the third time on 31 May, 1956 after having obtained a visa on 25 May, 1956. That visa was extended upto 30 November, 1956. The Delhi Administration returned his Pakistani passport to him in order to enable him to return to Pakistan. He did not leave India. On 11 July, 1957 he was arrested for violation of Rules 3 and 6 of the Indian Passport Rules, 1950 for the offence that he had entered India from Pakistan without a passport. On 31 July, 1957 he was acquitted. Thereafter he remained in India.

5. The charge in the present case was framed in the year 1960 and it was on the ground that he was required to obtain the residential permit on or before 5 January, 1960 and that in contravention thereof he continued to stay at Delhi without obtaining the requisite residential permit on or before 5 January, 1960 and was apprehended on 5 October, 1960 without possessing any residential permit. It may be stated here that in 1959 an amendment was made in paragraph 7 (2) of the Foreigners Order of 1948 whereby all foreigners were required to obtain residential permits by 5 January, 1960.

6. Counsel for the appellant contended that the respondent came to India on a Pakistani passport in which he was described as a Pakistani national and he overstayed after the expiry of visa and in spite of being required to obtain residential permit from the Registration Officer, Delhi, he continued to stay in this country and thereby contravened the provisions of Section 7 (2) of the Foreigners Act.

7. The respondent on the other hand contended that there was no mens rea and when he was arrested on 5 October, 1961 there was no offence on the authority of the decision of this Court in AIR 1961 SC 58 (supra),, because