Judgement

SHELAT, J.:- Prior to August 15, 1947, the respondent was in service 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 exercising such option, the Assam Government passed an order No. 2155, dated December 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.

2. 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 have 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 visa, he entered India on April 4, 1955. Instead of returning to Pakistan, he overstayed beyond January 26, 1955 until he was detected on October 9, 1964 in the Village Niargram, Salchah Sub-Division in the house of one Tozamul Ali Majumdar. He had at that time no permit as required by Clause 7 of the Foreigners Order, 1948, as amended in 1959. He was consequently arrested and prosecuted under Section 14 of the Foreigners Act, 1946 read with Clause 7 of the Foreigners Order, 1948.

3. The Additional District Magistrate, Silchar convicted him under Clause 7 of the Foreigners Order read with Section 14 of the Foreigners Act, 1946 and sentenced him to rigorous imprisonment for a period of six months and directed that he should be deported from India after he had served out the sentence. On appeal by the respondent against the said order of conviction and sentence, the Sessions Judge, Silchar upheld the said order of conviction and sentence.

4. In the revision application filed by him in the High Court of Assam and Nagaland, the High Court, relying on Fida Hussain v. State of Uttar Pradesh (1962) 1 SCR 776 reversed the said order of conviction and sentence and accepting the revision acquitted him. The reasoning adopted by the High Court was that as in the case of Fida Hussain, (1962) 1 SCR 776 the respondent was a natural born British subject, that being so he was at the date of his entry in India in April 1955 a citizen of India under Article 5 of the Constitution and that he was governed by the definition of a foreigner in the Foreigners Act before that Act was amended in 1957. Before the said amendment, a foreigner as defined by Section 2(a) meant a person who:

(i) is not a natural born British subject as defined in sub-sections (1) and (2) of Section 1 of the British Nationality and Status of Aliens Act, 1914, or

(ii) has not been granted a certificate of naturalization as a British subject under any law for the time being in force in India, or

(iii) is not a citizen of India.

The High Court felt that the respondent fell under Clause (i) of the said definition and therefore was not a foreigner when he entered India in April, 1955 (i.e. before the definition was amended in 1957) and was not, therefore, required to obtain a permit under Clause 7 of the Foreigners Order, 1948. According to the High Court, if the amended definition applied to the respondent it would be the Central Government and not a Court of Law which could under the Citizenship Act, 1955 be the appropriate authority to deal with such questions.

5. In our view the reasoning adopted by the High Court, of which the basis was the dicision in Fida Hussain s case, (1962) 1 SCR 776 was not valid as the High Court omitted to take into account the fact of the respondent having left India for Pakistan in August 1947 after he had opted for service in Pakistan.

The defence of the respondent was that he was born in India, that he owned a house and lands in India and was therefore a citizen of India within the meaning of Article 5 of the Constitu