Judgment

ALAGIRISWAMI, J. :- Petitioner Masud Khan prays for his release on the ground that he, an Indian citizen has been illegally arrested and confined to jail under Paragraph 5 of the Foreigners (Internment) Order, 1962. He had come to India from Pakistan on the basis of a Pakistani passport dated 13-7-1954 and India visa dated 9-4-1956. In his application for visa he had stated that he had migrated to Pakistan in 1948 and was in Government service in Pakistan in P.W.D. as a Darogha and had given his permanent address as Hyderabad (Sind). If these statements were correct the petitioner would clearly be a Pakistani national. When this fact was brought out in the counter affidavit filed on behalf of the respondent, the petitioner filed a further affidavit stating that he was appointed as a Police Constable in Hasanganj Police Station, District Fatehpur, U.P. in February , 1947 and continued as a Police Constable till the middle of 1950 when he was dismissed from service, and that he went to Pakistan in the year 1951. In the reply affidavit filed on behalf of the respondent it is stated that one Md. Masood Khan son of Zahoor Khan was enrolled as Police Constable on 16-9-1947 and he was discharged from service on 20-5-1949. It is fairly clear that this information culled from the English Order Book from 1-10-1947 to 27-12-1951 refers to the petitioner. While, therefore, it is established that the petitioner did not go to Pakistan in 1948, it cannot be said that it has been established that the petitioner went to Pakistan only in 1951 When he went to Pakistan is a matter peculiarly within his knowledge and he has produced no evidence in support of that statement Considering the frequent change of ground which the petitioner has resorted to, a mere statement from him cannot be accepted as true. Nor can we accept his contention that it is for the respondent to establish that he did not go to Pakistan in 1951 but that he went on some other date. The petitioner has also alleged that he was married in U.P. on 25th December, 1949. Even assuming that this statement is correct, the petitioner cannot establish that he is a citizen of India unless he succeeds in establishing that he was in India on 26-1-1950. If he had been in India on 26-1-1950 but had gone to Pakistan in 1951 it would be for the Central Government to decide whether he is a Pakistani national or an Indian citizen even though he may have come to India on a Pakistani passport in 1956. That question does not arise here.

2. We are not prepared to assume that the petitioner should be deemed to have been present in India on 26-1-1950, as was urged on behalf of the petitioner. There is no room for any such presumption. Under S. 9 of the Foreigners Act whenever a question arises whether a person is or is not a foreigner the onus of proving that he is not a foreigner lies upon him. The burden is therefore upon the petitioner to establish that he is a citizen of India in the manner claimed by him and therefore he is not a foreigner (See (1962) 1 SCR 744 Supp 2 SCR 560. This burden not having been discharged by the petitioner it should be held that he is a foreigner and his claim that he is an Indian citizen and cannot be dealt with under the Foreigners (Internment) Order 1962 must be rejected.

3. It appears, however, that in 1960 he had been prosecuted before the Sub-Divisional Magistrate, Fetehpur under Section 14 of the Foreigners Act and was acquitted on the ground that he was not a foreigner. It was therefore contended that the question whether the petitioner is a foreigner or not is a matter of issue estoppel. The decision that he was not a foreigner seems to have been based on the decision of the Allahabad High Court in Mohd. Hanif Khan v. State, AIR 1960 All 434. It was held there that a Pakistani national who entered into India before the amendment to the Foreigners Act in 1957, when he could not be considered to be a foreigner, could not be so held because of that amendmen