Case Note & Summary
The appellant, Fida Hussain, was born in India before partition and later left for Pakistan. He returned to India in 1953 on a Pakistani passport with an Indian visa permitting him to stay for three months, later extended up to November 15, 1953. He did not depart before the expiry of that period. He was convicted by a Sub-Divisional Magistrate on March 14, 1959 under Section 14 of the Foreigners Act, 1946 for breach of Paragraph 7 of the Foreigners Order, 1948, and sentenced to one year rigorous imprisonment. His appeal to a Sessions Judge was dismissed, and the Allahabad High Court, on revision, refused to interfere. The Supreme Court allowed his appeal by special leave. The core legal issue was whether the appellant was a foreigner on the date of his entry into India in 1953 within the meaning of Section 2(a) of the Foreigners Act, 1946 as it then stood. The appellant contended that he was not a foreigner because he was a natural-born British subject under Section 1(1)(a) of the British Nationality and Status of Aliens Act, 1914, having been born at Allahabad when that place was within His Majesty's Dominion. The Court accepted this submission, holding that Paragraph 7 of the Foreigners Order contemplates a foreigner entering India, and therefore a person who was a foreigner at the date of entry. Since the appellant was a natural-born British subject under the unamended definition, he was not a foreigner on his date of entry in 1953. Therefore, he could not have committed a breach of Paragraph 7. The Court set aside his conviction and sentence. It also observed that the definition of foreigner was amended with effect from January 19, 1957 by Act 11 of 1957, but it expressly refrained from deciding the effect of that amendment on the appellant's status. The decision establishes that status as a foreigner for the purpose of overstay offences must be determined as on the date of entry into India, applying the definition in force at that time.
Headnote
A) Foreigners Law - Definition of Foreigner - Foreigners Act, 1946, Section 2(a) (pre-1957 amendment) - Natural-born British subject under British Nationality and Status of Aliens Act, 1914, Section 1(1)(a) - A person born in India before partition when it was within His Majesty's Dominion is a natural-born British subject and hence not a foreigner under the unamended definition; conviction under Section 14 for breaching Paragraph 7 of Foreigners Order, 1948 was set aside because appellant was not a foreigner on the date of entry. Held that the foreigner status must be determined as on the date of entry into India. (No paragraph numbers in judgment) B) Foreigners Law - Temporal Application of Definition - Foreigners Act, 1946, Section 2(a) and Foreigners Order, 1948, Paragraph 7 - The 1957 amendment of the definition of foreigner was prospective and not applicable to entry in 1953; the Court expressly declined to decide the effect of the amended definition on appellant's status. Held that because the appellant was not a foreigner when he entered, overstay did not constitute an offence. (No paragraph numbers in judgment)
Issue of Consideration
Whether the appellant was a foreigner on the date of his entry into India in 1953 within the meaning of Section 2(a) of the Foreigners Act, 1946 as it then stood, and consequently whether his conviction under Section 14 for breach of Paragraph 7 of the Foreigners Order, 1948 was valid.
Final Decision
Appeal allowed; conviction and sentence set aside. The appellant was not a foreigner on the date of entry into India in 1953 as defined in Section 2(a) Foreigners Act, 1946 because he was a natural-born British subject under Section 1(1)(a) British Nationality and Status of Aliens Act, 1914; therefore no breach of Paragraph 7 Foreigners Order, 1948. The Court did not decide the effect of the 1957 amendment.
Law Points
- Definition of foreigner under Section 2(a) Foreigners Act 1946 as it stood in 1953
- natural-born British subject under Section 1(1)(a) British Nationality and Status of Aliens Act 1914
- person born in India before partition is natural-born British subject
- foreigner status determined on date of entry under Paragraph 7 Foreigners Order 1948
- amendment of definition prospective
