A Pakistani national who migrated to India after the 1st of March 1947 and failed to leave India within the scheduled time, contravened an order passed under Section 3(2)(c) of the Foreigners Act, 1946, and was thus liable to be punished under Section 14 of the Act.

H.K.Chaudhuri, J.

1. This is an appeal by the State Government against the acquittal of the respondent, Abdrfi Rashid, who was put on trial on a charge under Sec.14 of the foreigners Act, 1946, before a Magistrate of the first class at Darbhanga.

2. According to the prosecution, the respondent, who was originally a citizen of India, migrated to Pakistan after the 1st of Maroh 1947 and became a Pakistani national. He came back to India in 1953 on a Pakistani passport and a visa of the B category. He failed to leave India within the scheduled time whereupon he was served with a notice to quit India by the 24th August, 1957. This order not having been complied with, the respondent was prosecuted under Sec.14 of the Foreigners Act. Sec.14 of the Act provided as follows:

"If any person contravenes the provisions of this Act or of any order made thereunder, or any direction given in pursuance of this Act or suck order, he shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; ........"

Sec.3 of the said Act authorises the Central Government by order to make provision either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein. In particular this authority extends to the passing of an order providing that the foreigner shall not remain in India or in any prescribed area therein (vide, Clause (c) of Sec.3(2) of the said Act). The prosecution case is that the order contravened by the respondent was an order made under Sec.3(2) (c) of the Foreigners Act, 1946 .

3. The defence was that the respondent was a citizen of India and that he had never migrated to Pakistan. According to him, he went to Pakistan on railway service without any intention of settling there permanently. In the circumstances, the order, which is said to have been contravened, was illegal and without jurisdiction.

4. The learned Magistrate held that the respondent was a railway engine driver and has opted for service in Pakistan, where he lived for about five or seven years. He, however, acquitted the respondent on the ground that since the latter had land, a house and cattle in India, he could not be said to have migrated to Pakistan.

5. The learned Government Pleader, appearing for the State, has contended that having regard to the evidence on record, the learned Magistrate was in error in holding that the respondent had not migrated to Pakistan. It is submitted that the evidence and the circumstances clearly established that the respondent had migrated to Pakistan after the 1st March 1947, and hence under Article 7 of the Constitution of India, he could not be deemed to be a citizen of India. Article 7 of the Constitution of India lays down:

"Notwithstanding anything in Articles 5 and 6, a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India."

6. Before I consider the evidence, I would like to mention here that it is not the case of the respondent that, after having migrated to Pakistan, he returned to the territory of India under a permit for resettlement Or permanent return within the meaning of the proviso to Article 7 of the Constitution of India.

7. The evidence in this case establishes than the respondent was originally a citizen of India, but left for Pakistan after the 1st March, 1947. He was a railway engine driver and, on partition of the country, opted for service in Pakistan. He was in service in Pakistan in this capacity and lived there for about seven years. During this period, he frequently visited India on temporary permits. He has some land, a house and cattle in India. He last came to India in 1953 on a Pakistani passport and