M.N. SHUKLA, J. :- This Government appeal is directed against the order dated 16-9-1968 passed by the 1st Temporary Civil and Sessions Judge, Aligarh setting aside the conviction and sentence of the respondent under Section 14 of the Foreigners Act. The respondent was convicted by the trial Magistrate under Section 14 of the Foreigners Act and sentenced to one year's rigorous imprisonment; he was also directed to be deported to Pakistan thereafter. The appellate Court set aside the conviction and sentence and with regard to the direction about deportation it observed that the order of deportation or extolment was not one which could be passed by that Court, as it was within the competence of the "civil Authority" as defined in the Foreigners Act. Aggrieved by this order the Government has preferred this appeal in which a point of law has been canvassed by the parties.

2. The peculiar facts of this case furnished the learned counsel for the respondent with an ingenious argument which was pressed upon us for consideration. The material facts are that Wali Mohammad respondent was born in India. He migrated to Pakistan in the year 1949. He entered India on the 8th June, 1954 on the strength of a Pakistani passport dated the 27th May, 1954 and an Indian category 'C' visa dated the 1st June, 1954 which was initially valid up to the 31st October, 1954. The period was extended to the 7th June, 1955. Since the respondent failed to obtain a residential permit extending the period of visa under paragraph 7 (2) of the Indian Foreigners Order, 1948, he was alleged to have contravened the said provision. Consequently, he was arrested on 8-12-1967 and prosecuted under Section 14 of the Foreigners Act. Before the respondent could be prosecuted for the aforesaid offence it was necessary that he must be held to be a foreigner. The meaning of the expression 'foreigner' has undergone material alteration. By virtue of the Foreigners Laws (Amendment) Act, 1957 (11 of 1957) the definition of the term 'foreigner' was amended retrospectively with effect from the 19th June, 1957. Before the amendment clause (a) of Section 2 of the Foreigners Act stood as below:

"(a) foreigner means 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 definition of a 'foreigner' in Section 2 (a) of the Foreigners Act as it stands today is "a person who is not a citizen of India". A comparative reading of the aforesaid provision makes it clear that whereas formerly a person who could show himself to be a natural born British subject could not be regarded as foreigner, now the position is that notwithstanding that qualification, if he is not a citizen of India the last circumstance makes him a foreigner.

3. Therefore, the question which falls to be decided in the present case is as to whether the respondent was a citizen of India. If he was not a citizen of India he could be treated as a foreigner and be proceeded against for contravention of paragraph 7 (2) of the Foreigners Order. Before the enactment of the Citizenship Act, 1955 (No. 57 of 1955) the only provisions of law on the basis of which citizenship could be determined were those contained in the Constitution of India. Article 5 of the Constitution reads as under:-

"5. At the commencement of this Constitution, every person who has his domicile in the territory of India and-

(a) who was born in the territory of India; or

(b) either of whose parents was born in the territory of India; or

(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India."

Another relevant provision of the Constitution is Article 7, the material portion of