Judgment

BEG, J :- This is an appeal, by special leave, against the acquittal of the appellant, from a charge framed on 21-9-1967 as follows :

"That you on or about the 31st day of March 1967 at about 9.30 p.m. were found in State Transport Corporation Workshop at Naroda in Ahmedabad, and you are a foreigner and you had come from Pakistan and you had been permitted to stay in India till 20th September, 1958, by Assistant Secretary to the Government of Bombay and did not depart from India before expiring of that permit issued to you by No. 19904 dated 6-12-1957 before the date 20th December 1958 and remained in India and thereby you contravened the provisions of cl. 7 (iii) of Foreigners Order 1958 and thereby committed an offence punishable under Section 14 of Foreigners Act 1946 and within my cognizance".

The above mentioned charge was supported by the statement of Mahamadmiya, P. W. 2. Sub Inspector, Special Emergency Branch, Ahmedabad, showing that the appellant was working in Baroda Central State Transport Workshop when he was arrested as a consequence of the information that he was a Pakistani national who had come to India in 1955 on a Pakistani passport. The accused had produced his Pakistani passport (Ex. 11) dated 8th September, 1955. The prosecution had also relied upon an application for a visa made by the accused to the High Commissioner for India in Pakistan on 10th October, 1955, in which he had, inter alia, stated that he had migrated from India to Pakistan in 1950. Undoubtedly, the prosecution was handicapped in producing evidence to show when and how and with what intention the appellant had gone to Pakistan. It could only show how and when and on what passport he returned to this country.

2. The accused-respondent had produced credible evidence to prove: that, he was born at Dhandhuka in the State of Gujarat on 15th May, 1936; that, he was living at Dhandhuka and attended School there until 1952 when he moved to Ahmedabad with his father; and, that he had gone to Pakistan in a state of anger while he was a minor, after a quarrel with his father who had driven him out of his house. The respondent denied that he had the intention of settling down in Pakistan. He asserted that within six months of his arrival in Pakistan he regretted having left India and tried to come back to his home. he alleged that, as he was unable to come home without a Pakistani passport, he had to apply for and get one. The respondent asserted that he was an Indian citizen when the Constitution came into force on 26th January, 1950, and that he had continued to be an Indian citizen thereafter as he had never migrated to Pakistan. His explanations about the passport and the visa application implied that he had obtained the passport by making false declarations and that the statement in the visa application, that he had migrated to Pakistan in 1950, was one of those untrue declarations which had been made only to obtain a passport. Probably he had to show under the law in Pakistan that he had settled down in Pakistan and become a Pakistani national before obtaining a Pakistani passport.

3. The Judicial Magistrate had acquitted the respondent after examining the cases set up by the two sides and holding that the respondent had proved that he was an Indian citizen who had never, in fact, migrated to Pakistan. In an appeal against the acquittal, the High Court of Gujarat had upheld the acquittal and confirmed the finding that the appellant was an Indian citizen when the Constitution came into force on 26th January, 1950. It had also held that the appellant was a minor when he visited Pakistan. It had found it unnecessary to record a finding on the question whether the appellant s visit to Pakistan could be held to be one made under compulsion or for a specific purpose so as to come within the class of those exceptional cases mentioned in Kulathil Mammu v. The State of Kerala, (1966) 3 SCR 706 ) in which a "migration" would not take place even i