# Ibrahim v. Stat. of Rajaathan

- **Citation:** [1964] 7 S.C.R. 441
- **Court:** Supreme Court of India
- **Decided:** 1962-11-09
- **Case number:** Criminal Appeals No. 14 of 1963
- **Bench:** M. Hidayatullah, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ibrahim-v-stat-of-rajaathan-3144
- **Pages:** 6

## Headnote

Foreigners Act, 1946 (31 of 1946), ss. 2(a) 3.9 and 14Whether a person is a foreigner has to be riccid·?d in relation to
the time of the offence-The fact. that he was not a foreigner
before the time of offence; not material-Onus of proof on the
accused-Citizenship Act, 1955 (LVII of 1955). s. 9(2).
The appellant, a Pakistani National originally came over
to India on a Pakistani Passport ancl on the strength of visa.
He was found to be overstaying in India and he was deported
on April 21, 1957. Subsequently on finding him again in India
he was charged with an ofience of having entered India without
a passport in contravention of s. (2) (a) of the Foreigners Act,
1946. His defence was t.hat he had been in India from his birth
and that the person who was said to have been deported in 1957
was some other and not himself. The trial court accepted this
defence and acquitted him. The State appealed to the High
Court and the High Court rever;ed the finding of the lower
court and held l\im guilty of the offence charged. The present
appeal was filed on a special leave granted by this Court.
The first contention of the appellant was that the High
Court was wrong in rever81ng the fh1ding of the -trial court on
the issue of the identity of the appellant. Secondly it was submitted that under s. 2(2) of the Foreigners Act as it stood before
the Amendment which crune onto force on January 19, 1957
the appellant though a Pakistani citizen was not a "foreigner"
and hence his entry into India before that date \Vould not constitute an offence. It was contended further that the co1.<rts had
no jurisdiction to determine whether the appellant was or was
not a foreigner by reason of the provision of s. 9(2) of the Indian
Citizen-ship act 1955.
Held: The appellant was the person who was deported on
April 21, 1957 and the f;nding of the High Court on the question
of his identity was corre:::t.
(ii) If on the date when the offence is committed a person
is "a foreigner'' as defined by the Act, it would be no excuse for
him to say that on an Ci.irlier date he was not foreigner. Since
the appellant was deported in April 1957 and he came back to
India subsequently without a passport he v..•as a foreigner under
the amendment provision which came into force on January 19,
1957 had committed an offence under s. 3 of the Foreigners Act.
(iii) Under s. 9 of the Foreigners Act the onus is upon the
person who is accused under the Act to prove that he is not a
foreigner. It is only where there is proof that a person is, to
start with a citizen of Tndia and it is alleged that he has lost his
Indian Citizenship by reason of acquiring the nationality of tl:e
foreign State that any question of invoking the provisions of
s. 9(2) of the Citizenship Act arises. In the present case the appellant a Pakistani national came to India originally with a
Pakistani Passport and after his deportation in April 1957 came
back to India without a passport and hence he cannot invoke s.
9(2) of the Citizenship Act and he had committed an offence
under s. 3 (2)(a) of the Foreigners Act.
1961
Afarch 24
1964
Ibrahim
v.
Stat. of Rajaathan
.Ayyangar, J.
442
SUPREME COURT REPORTS
[196!]

## Text

7 S.C.R.
SUPREl\IE COURT REPORTS
IBRAHIM
'v
STATE OF RAJASTHAN
441
[M. HIDAYATULLAH AND N. RAJAGOPALA AYYANGAR, JJ.)
Foreigners Act, 1946 (31 of 1946), ss. 2(a) 3.9 and 14Whether a person is a foreigner has to be riccid·?d in relation to
the time of the offence-The fact. that he was not a foreigner
before the time of offence; not material-Onus of proof on the
accused-Citizenship Act, 1955 (LVII of 1955). s. 9(2).
The appellant, a Pakistani National originally came over
to India on a Pakistani Passport ancl on the strength of visa.
He was found to be overstaying in India and he was deported
on April 21, 1957. Subsequently on finding him again in India
he was charged with an ofience of having entered India without
a passport in contravention of s. (2) (a) of the Foreigners Act,
1946. His defence was t.hat he had been in India from his birth
and that the person who was said to have been deported in 1957
was some other and not himself. The trial court accepted this
defence and acquitted him. The State appealed to the High
Court and the High Court rever;ed the finding of the lower
court and held l\im guilty of the offence charged. The present
appeal was filed on a special leave granted by this Court.
The first contention of the appellant was that the High
Court was wrong in rever81ng the fh1ding of the -trial court on
the issue of the identity of the appellant. Secondly it was submitted that under s. 2(2) of the Foreigners Act as it stood before
the Amendment which crune onto force on January 19, 1957
the appellant though a Pakistani citizen was not a "foreigner"
and hence his entry into India before that date \Vould not constitute an offence. It was contended further that the co1.<rts had
no jurisdiction to determine whether the appellant was or was
not a foreigner by reason of the provision of s. 9(2) of the Indian
Citizen-ship act 1955.
Held: The appellant was the person who was deported on
April 21, 1957 and the f;nding of the High Court on the question
of his identity was corre:::t.
(ii) If on the date when the offence is committed a person
is "a foreigner'' as defined by the Act, it would be no excuse for
him to say that on an Ci.irlier date he was not foreigner. Since
the appellant was deported in April 1957 and he came back to
India subsequently without a passport he v..•as a foreigner under
the amendment provision which came into force on January 19,
1957 had committed an offence under s. 3 of the Foreigners Act.
(iii) Under s. 9 of the Foreigners Act the onus is upon the
person who is accused under the Act to prove that he is not a
foreigner. It is only where there is proof that a person is, to
start with a citizen of Tndia and it is alleged that he has lost his
Indian Citizenship by reason of acquiring the nationality of tl:e
foreign State that any question of invoking the provisions of
s. 9(2) of the Citizenship Act arises. In the present case the appellant a Pakistani national came to India originally with a
Pakistani Passport and after his deportation in April 1957 came
back to India without a passport and hence he cannot invoke s.
9(2) of the Citizenship Act and he had committed an offence
under s. 3 (2)(a) of the Foreigners Act.
1961
Afarch 24
1964
Ibrahim
v.
Stat. of Rajaathan
.Ayyangar, J.
442
SUPREME COURT REPORTS
[196!]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals
No. 14 of 1963. Appeal by spec~l1eave from the judgment and
order dated November 9, 1962 of the Rajasthan High Court
in D.B. Criminal Appeal No. 502 of 1961.
S. Shaukat Hussain, for the appellant.
H. R. Khanna and S. P. Nayar, for the respondent.
March 24, 1964. The Judgment of the Court was delivered by
AYYANGAR, J.-This appeal, by special leave, against the
judgment of the High Court of Jodhpur raises for consideration the legality of the conviction of the appellant for a contravention of s. 3 of the Foreigners Act (Act XXXI of 1946)
which is an offence under s. 14 of that Act. The relevant portion of s. 3 enacts : -
"3. ([) The Central Government may by order make
provision, either generally or with respect to all
foreigners or with respect to any particular foreigner or any prescribed class or description of
foreigners, for prohibiting regulating or restricting the entry of foreigners into India or other departure therefrom or their presence or continued
presence therein.
(2) In particular and without prejudice to the generality of the foregoing power, orders made under
this section may provide that the foreigner: -
(a) shall not enter India or shall enter India only at
such times and by such route and at such port
or place and subject to the observance of such
conditions on arrival as may be prescribed;
"
Section 14 reads :
"14. 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 suc)l
order, he shall be punished with imprisonment for
a term which may extend to five years and shall
also be liable to fine; and if such person has entered into a bond in pursuance of clause (f) of subsection (2) of section -3. his bond shall be forfeited,
and any person bound thereby shall pay the
penalty thereof, or show cause to the satisfaction
of the convicting Court why such penalty should
not be paid."
7 S.C.R.
SUPREME COURT REPORTS
443
The facts giving rise to the appeal are briefly these: The
1964
case of the prosecution was that the appellant-Ibrahim, s Io
Ibrahim
Miru--a resident of Rajgarh in Bikaner Division-was a
v.
Pakistani national who had originally come over to India on Bw.te 01 RajClfllia•
a Pakistani passport issued to him in 1954 and on the strength
A~r J.
of a visa granted in December, 1956. He was then found to be
overstaying in India since February 18, 1957 and an order was
thereupon passed in March, 1957 for his deportation. This
order was given effect to and on April 21, 1957 he was taken
across the Pakistan border at the Check Post Munabao by
the Indian police officials and deported. Then followed the
events which have given rise to the present proceedings. Subsequent to his deportation to Pakistan and on a date as regards which the prosecution had no information, the appellant had, unknown to the Indian authorities, managed to
come over to India clandestinely and he was found again in
Rajgarh. On seeing him there the Sub-Inspector of Churu
made a report to the Station House Officer of Rajgarh by
which he drew the latter's attention to the fact that the appellant who had been deported had 10anaged to cross the border.
on the side of Ganganagar and had re-entered India and he
brought this to his notice for the purpose · of action being
taken. The accused was thereupon apprehended and was
charged with an offence of having entered India without a passport in contravention of s. 3(2)(a) of the Fordgners Act.
The defence of the appellant was simple. He said he had
been in India all the time since birth, had never gone to Pakistan and so had never come here in 1957 with a Pakistani passport, was never deported therefrom and therefore there was
no question of his having entered India without a passport. In
other words, his defence was that h:e was not the 'person who
had come over in 1957 and had been deported to Pakistan in
April 1957.
In support of their case the prosecution proved the order
of Government by which Ibrahim, son of Meeru of Rajgarh
had been directed to be deported in which is found a reference to his having come over to India with a passport a.nd
having overstayed the time permitted by the visa, the general
diary of the ,Emigration Check Post, Munabao dated April
21, 1957 which recited that on April 21, 1957 the deportee-.
Cbrahim-had come with a Head Constable and that the
deportation order had been given effect to, and an entry in
the deportation register of the Check Post which recited the
date arid number of the Pakistani passport and the .. authority
by which the order of deportation had been passed and the
carrying out of the acwat · deportation. In order tO establish
the identity of the appellant with Ibrahim mentioned in
these documents the _prosecution examined. two witnesses--
Shiv Rattan who was the Police Inspector in-charge of the
1964
Ibrahim.
'".
Btate of Rajasthan
.Ayyangar, J.
,_-.
444
SUPREME COURT REPORTS
[1964]
Munabao Check Post at the relevant date (P.W. 2) and Govind
Singh who was a pe9n who was posted at the police lines at
Churu and who accompanied Dube Singh, Head Constable
when Ibrahim was taken from Rajgarh to the Check Post at
Munabao for being deported. These two witnesses identified
the appellant who was present in Court Ibrahim whom
they had seen off at the border Check Post in execution of the
order to deport. The learned
Megistrate, however, was not
satisfied with this proof of identity. because he was of the
view that the two prosecution witnesses-·P.Ws 2 and 3could not, after the lapse of 4 years, be believed when they
said that they remembered that the appellant was Ibrahim
whom they had seen deported at the Check Post. The learned
Magistrate also held that there was some discrepancy in the
father's name of Ibrahim in one of the documents produced
by the prosecution which, according to him, did not tally with
the name of the appellant's father. On tltese grounds the learned Magistrate acquitted the accused.
The respondent-State filed an appeal to the High Court
against this order of acquittal and the learned Judges h.olding
that there could be no doubt about the identification by P.W.s
2 and 3 of the appellant as the Ibrahim whom they had deport·
ed, reversed the order of acquittal and held the appellant
guilty of the offence charged and. sentenced him to a term of
imprisonment. It is from this judgment of the High Court that
the present appeal has been filed pursuant to
leave granted
by this Court.
The first point urged by learned counsel for the appellant was as regards the identity of the appellant \\ith Ibrahim.
On this we are quite satisfied that the learned Judges were correct in their appreciation of the evidence in the case. Both the ·
witnesses-P.W.s 2 and 3-are public servants and there is no
reason why they should depose falsely against the appellant.
The documents produced as regards which there is no challenge give the name of the person deported as Ibrahim, his
father as Miru and besides, they specify his age as 27 which,
it is conceded, tallies with the description of the appellant. The
only point that was suggested by learned Counsel was that in
Ex. P-I-the deporting register at the Check Post-the neme
of Ibrahim's father was stated to have been entered as Murra
and not Miru. When, hc'wever, it was poin.ted out to learned
Counsel during the course of the arguments that there was a
possibility of these words written in Urdu being wrongly transliterated in the English learned Counsel did not persist in the
point. If then Ibrahim s/o Miru, aged 27 was deported and
there is evidence adduced which has been accepted by the High
Court that it was the appellant tl13t was deported on the former
occasion, we find no substance in the argument as regards this
question of identity.
7 S.C.R.
SUPREME COURT REPORTS
445
The second submission of learned counsel was based on
1964
the fact that under s. 2(a) of the Foreigners Act, 1946, as origiIbrahim
nally enacted, a citizen of Pakistan which wa~ a member of the 8
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.
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A
tate o,
"'"'"~•
nt1s
ommonwea t was not a ore1gner wit m t at
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and that citizens of Pakistan became "foreigners" only by
Ayyanyar, J.
virtue of the amendment effected by Central Act XI of 1957
which came into force on January 19, 1957. The argument
based on this feature was as follows: A person wh<> can be
held guilty of a contravention of s. 3 of the Foreigners Act is
only a "foreigner". Even according to the case of the prosecution the appellant had come over to India on the strength of
a Pakistanl passport issued in 1954 and under a visa of December, 1956. It must, therefore, be taken that he had crossed
over to India before the 19th January, 1957. On that date he
was not a foreigner, though a Pakistani, as he was a citizen of
a Common-wealth country. He c0uld not, in Jaw, become a
"foreigner" subsequently and no action could be taken against
him on the footing that he had become a "foreigner". We see
no merit in this submission. A prima facie reading of the
Foreigners Act would show that if on the date when the
offence is committed a person is a "foreigner"', as defined by
the Act, it would be no excuse for him to say that on an earlier date he was not a foreigner. But it is, h0wever, unnecessary to consider this point further because, firstly, there is no
proof on the record before us that the appellant entered India
before January 19, 1957. But even if he had it would only
mean that the earlier order of deportation which was passed
in March/ April 1957 was a wrong order and that certainly is
not a matter with which we are concerned, because it is common ground, if the identity of the appellant is held to be established, that the appellant was deported to Pakistan in April,
1957. He could come over to India only subsequent to April,
1957 and if he did come over it is also common ground that
he came over without a passport. As the date upon which he
could have come over was certainly after April, 1957 by which
date s. 2(a) of the Foreigners Act containing the definition of
·'Foreigner" had been amended, the appellant was a foreigner when he came into India without a valid passport and visa
in contravention of the provisions of s. 3 of the Foreigners
Act, and that is the offence with which he is now being charged. We find therefore that there is no substance in this point.
Lastly, it was submitted that the Courts could have no
jurisdiction to determine whether the appellant was a "foreigner" and that their jurisdiction in that regard was barred· by
the provisions of s. 9(2) of the Citizenship Act, 1955. This
argument proceeds upon a misapprehension of the legal position. In the first place, under s. 9 of the Foreigners Act the
onus is upon the person who is accused tinder that Act to
446
SUPREME COURT REPORTS
. [1964}
1961
prove that he is not a foreigner. In the present case once the
Ibrahim
plea regarding the absence of identity of the appellant with
v..
the deportee of April, 1957 was rejected it could not be sug8101' 01 R11:1081Jian gested that the appellant was ever an Indian citizen. It is only
A111/<lnuar, J.
where there is proof that a person is to start with, a citizen of
India and it is alleged that he has lost his Indian citizenship by
reason of acquiring the nationality of a foreign State that they
question of invoking the provisions of s. 9('.!) of the Citizenship Act arises. That is not the case here. The case of the prosecution was that the appellant was a Pakistani national who
had come over to India on a valid Pakistani passport. in 1957
and had been legally deported out of India in April, 1957. On
those facts there is no question of s. 9(2) of the Citizenship Act
being invoked or coming into play. The offence charged was
that having been deported once out of India, he again en,tered
India without proper travel documents in violation of the provisions of s. 3(2)(a) of the Foreigners Act.
There was one further point that was mentioned by learned Counsel but which we did not permit him to argue. Learned Counsel said that the order now passed was one by the
State Government and that there was no proof that the Central Government had delegated this power to the State Government. Apart from the point being without s11bstance in
view of the tenns of s. 3(2)(a) we have extracted earlier, and
which was the offence with wliich the appellant was charged,
this point about delegation was never urged in the Courts
below and consequently no evidence was led to establish delegation under s. 12 of the Act if that was necessary for sustaining the prosecution in the present case. As this point was not
raised in the Courts below we declined to pennit learned
Counsel to raise it before us.
We consider that the learned Judges were right in holding that the prosecution had established the offence charged
against the accused.
There are no merits in the appeal which fails and is dismissed.
Appeal dismissed •.