A foreigner who enters India illegally and stays on without valid documents, and who obtains a forged passport and uses it to stay in India after crossing the Indian border, is guilty of an offence under Sections 14 of the Foreigners Act, 1946 and 3 of the Passport (Entry into India) Act, 1920 read with Rule 6 of the Passport (Entry into India) Rules, 1950.

RAM NANDAN PRASAD, J.

1. The petitioner has been convicted by the Judicial Magistrate, Ist Class, Muzaffarpur, in G.R. Case No. 2484/75 u/S. 14 of the Foreigners Act, 1946 and sentenced to rigorous imprisonment for one year and further convicted u/ S. 3 of the Passport (Entry into India) Act, 1920 read with Rule 6 of the Passport (Entry into India) Rules, 1950 and sentenced to undergo rigorous imprisonment for three months and sentences have been ordered to run concurrently and his appeal against the same has been dismissed and the conviction and sentences have been confirmed by the Ist Additional Sessions Judge, Muzaffarpur, in Cr. Appeal 97/86. The prayer in this application is to set aside the conviction and the sentences passed against him.

2. Briefly stated the facts are as follows; On the basis of confidential information, the A.S.I. of Kazi Mohammadpur Police Station (Muzaffarpur), Ram Sewak Singh along with some constables visited the shoe shop of Abdul Rahim in Muzaffarpur Town at about 5 p.m. on 27-12-1975 and there found the accused (petitioner) sitting in the shop and on questioning he gave out, his name as Mohammad Anwar son of Khudabaksh of village Pandi Bhatiya, Tahsil Hafizabad, Quzrawala, Pakistan. Finding that the petitioner was a foreigner and he had no passport or other valid documents for his entering into and staying in India, the A.S.I. took him into custody and submitted a written report (Ext. 2) at the Kazi Mohammadpur Police Station on the same day which was forwarded to Muzaffarpur Town Police Station where Town Police Station Case. No. 87 dt. 28-12-1975 was instituted giving rise to G.R. Case No. 2484/ 75. It is stated in the written report that the accused (petitioner) on questioning by the A.S.I. disclosed that he had come without any passport from his home in Gujarawal (Pakistan) via Dhaka to Calcutta in the rainy season of 1969 to meet his wife Rajia Begam and his three sons and daughters who were residing in the house of his father-in-law, Abdul Majid at Balaidutt Street, Calcutta, and there with the help of his father-in-law he got employment in the shoe shop of his relation Ellahi Baksh and after having worked there for sometime he came to Muzaffarpur in February, 1973 with a view to opening a shoe shop independently and remained there in the hope that his real identity will not be disclosed and he will be able to stay incognito. The accused (Petitioner) is further said to have disclosed that at Muzaffarpur he first opened a shoe shop in Mohallah Islampur in the name of Aurangzeb Illahi but thereafter he engaged himself in bringing shoes, chappels etc. from Calcutta and supplying them to different shoe shop-keepers at Muzaffarpur including Abdul Rahim in whose shop he was arrested on the date of occurrence. In course of investigation, the petitioners statement u / S. 164, Cr. P.C. was recorded. After the investigation was completed, the petitioner was chargesheeted and put on trial resulting in his conviction and sentence as mentioned above.

3. The petitioner denied the charges levelled against him and took the plea that he was an Indian national and had only temporarily gone to Pakistan and had thereafter come back to live in India with his family members.

4. The only point to determine in this case is whether the prosecution case regarding the petitioner being a foreigner and having entered into and remained in India without valid documents has been established beyond reasonable doubt and whether the conviction and sentences passed against the petitioner are sustainable in law. In course of hearing of this application, the following points have been urged on behalf of the petitioner:

"(i) The trial as well as the appellate courts have failed to properly appreciate the evidence and statement under S. 164 Cr. P.C. and on this account the conviction is unsustainable. The petitioner is not a foreigner but an Indian citizen. Further, in any view of the matter a declaration u / S. 8 of th