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Abdus Samad Vs State Of West Bengal

CASE BRIEF

Citations:  AIR riLJ 1, (1973) 1 SCC 451, 1973 (5) UJ 380 SC1973 SC 505, 1973 C

Case Type: Criminal Case

Case No: Criminal Appeal No. 216 of 1969

Decided On: 12 September, 1972

Appellant: Abdus Samad

Respondent: State Of West Bengal

Bench: A Ray, I Dua

Statutes Referred:

Section 14 of the Foreigners Act

Article 5-9 of Constitution of India

Cases Referred:

Ali Ahmad v k Pati

Mohammad rad vs state of Bombay

Kedar Pandey v Narain Bikram Sah

Pradip Jain v UOI

Facts:

  • The appellant was born in Sylhet, which became part of Pakistan in 1947 due to the division of India. He came to Calcutta in 1914. He obtained a Pakistani passport in 1952.
  • The appellant was notified on February 21, 1962, requiring that he should leave India within 30 days. He didn’t do.
  • He was arrested on May 7, 1962. He was prosecuted under Article 14 of the Foreigners Act for violating the notice of leaving India.
  • On behalf of the appellant, it was conveyed that he approached to Calcutta in 1914 and therefore at the commencement of the Constitution he became a citizen of INDIA under Article 5(c) of the Constitution.
  • In this case, the birthplace of the appellant due to birth in Sylhet was not considered to be in India after the partition.
  • This is a special leave appeal from judgment DT. On July 18, 1969, the Calcutta High Court convicted the appellant under Article 14 of the Foreigners Act and sentenced him to one month’s simple imprisonment.

Issues Involved:  

  • The place of residence of choice is that all people of major age are free to obtain it in place of what they own at the time of choice. Everyone must have a place of residence.
  • A person cannot have two simultaneous residences. The address indicates the relationship with the territorial legal system.
  • The onus of proving a change in domicile is on those who contend that a change has occurred.
  • Place of residence means a permanent residence. A place of residence means a place where a person has settled as a place of residence for himself or his family, not just for a special temporary purpose, but for the purpose of making it a permanent place of residence. Therefore, this is the result of voluntary choice.

Contention of Appellant:

The appellant’s defence was that he was an Indian citizen, not a foreigner. The Magistrate found that the prosecution was unable to prove that the appellant was a foreigner and acquitted the appellant. The High Court overturned the acquittal. The appellant’s defence alleged to be a foreigner under Article 9 (2) of the Indian Citizenship Act of 1952. That is because he is not a foreigner under Article 9 of the Indian Citizenship Act. Therefore, it was argued that the appellant could not be asked to leave India until a government decision was made. This was an appellant’s request to the government to “not be pushed out of India.” The appellant then applied to register as an Indian citizen on May 4, 1962, under Sections 5 (1) (a) of the Citizenship Act. It was never the plea of the appellant that he was an Indian citizen… An application for registration as an Indian citizen completely invalidates the appellant’s claim for Indian citizenship.

Contention of Respondent:

The High Court found that there was no material showing that the appellant was not a resident of India for the five years prior to the constitution. However, the appellant must reside in India in order to attract Article 5 (c) of the Constitution .The appellant must have Indian domicile. Mere residence is not domicile it is the view of this Court since the decision in Kulathil Mammu v. The State of Kerala, ((1966) 3 SCR 706: AIR 1966 SC 1614: (1967) 2 SCJ 653) that migration in its wider connotation means going from one place to another whether or not with the intention of permanent residence in that place There was no doubt that he moved to India in 1914 for the simple reason that both Sylhet and Calcutta formed part of India at the time.

Observations/Obiter Dicta:

The High Court found that there were no materials to show that the appellant was not a resident of India for five years before the commencement of the Constitution. But in order to attract Article 5(c) of the Constitution the appellant must have Indian domicile. Mere residence is not domicile. There must have been the intention of the appellant on the partition of India to remain in India permanently. The intention of mind of the appellant is indicated by two principal facts. First, the appellant had a Pakistani passport in 1952. Second, the appellant made an application under Section 5 of the Indian Citizenship Act for registration as an Indian Citizen after the appellant had been given notice under the foreigners Act to leave India.

Counsel for the appellant contended that there was no consideration by and answer from the Government of India on the representation dated 16 March, 1962 made by the appellant. It was said that the representation was one under Section 9(2) of the Indian Citizenship Act, 1952 for the determination of his citizenship. Therefore the contention was that until there was a determination by the Government the appellant could not be asked to leave India. That is not a representation under Section 9 of the Indian Citizenship Act. This was a request to the Government by the appellant not to be “pushed out of India.” The appellant then made an application under Section 5(1)(a) of the Citizenship Act on 4 May, 1962. to be registered as a citizen of India. It was never the plea of the appellant that he was an Indian citizen. An application for registration as an Indian citizen totally repels any plea of Indian Citizenship of the appellant.

Rationale

The High Court found that when the appellant came to Calcutta in 1914, he must have come for a limited purpose or for a limited period of time. After India’s separation in 1947, members of the appellant’s family, especially his wife and son, lived in Pakistan. When the passport and visa system was introduced, the appellant acquired a Pakistani passport and continued to live in India with a visa granted by State of West Bengal. Therefore, the High Court was correct on the conclusion that the appellant did not have a place of residence in India and the appellant was not an Indian citizen.

Judgement

 In the High Court it was contended on behalf of the appellant that he came to India before 19 July, 1948, and, therefore, he had migrated from Pakistan to India.  It is the view of this Court since the decision in Kulathil Mammu v. the State of Kerala migration in its wide connotation means going from one place to another whether or not with the intention of permanent residence in that place. There was no question of migration to India in 1914 for the simple reason that Sylhet and Calcutta both formed part of India at that time. The submission that the appellant migrated to India is repelled by his Pakistani passport, his visa granted by the State of West Bengal and the members of his family staying in Pakistan at the relevant time. As the appellant was not registered as an Indian Citizen, the appellant’s application for registration was rejected on 6 May, 1963. The representation of the appellant of 16 March, 1962 did not merit any further answer after the rejection of the appellant’s application for registration as an Indian Citizen.

For the reasons, the appeal fails and is dismissed. The appellant will surrender to his bail and to serve out the sentence.

Conclusion:

The appellant’s defence was that he was an Indian citizen, not a foreigner. The magistrate found that the prosecution was unable to prove that the appellant was a foreigner and acquitted the appellant. The High Court overturned the acquittal.

Place of residence means permanent residence. A place of residence means a place where you or your family have settled for the purpose of making it a permanent place of residence as well and not just as a special temporary purpose. Therefore, this is the result of voluntary choice of the appellant’s intention to stay India must have been to stay in India forever.

The appellant’s s intention is indicated by two main facts. Firstly, the appellant had a Pakistani passport in 1952. Second, the appellant applied for registration as an Indian citizen under Article 5 of the Indian Citizenship Act after being notified to leave India under the Foreigners Act.

When the passport and visa system was introduced, the appellant obtained a Pakistani passport and continued to live in India with a visa granted by West Bengal. Therefore, the High Court was correct on the conclusion that the appellant did not have a place of residence in India and the appellant was not an Indian citizen.

Prepared by Anushka Choudhary