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Abdus Samad v. State Of West Bengal .
Factual and Procedural Background
The appellant was served with a notice on 21 February 1962 directing him to leave India within thirty days under the Foreigners Act. He failed to comply, was arrested on 7 May 1962, and prosecuted under Section 14 of the Foreigners Act for overstaying. His principal defence was that he was not a foreigner but an Indian citizen.
The trial Magistrate held that the prosecution had not proved the appellant to be a foreigner and acquitted him. On appeal, the Calcutta High Court reversed the acquittal on 18 July 1969, convicted the appellant, and sentenced him to one month’s simple imprisonment. The present proceeding is an appeal by special leave to the Supreme Court of India against that conviction.
Relevant personal facts relied upon in the litigation include that the appellant was born in Sylhet (which became part of Pakistan after the 1947 partition), moved to Calcutta in 1914, and obtained a Pakistani passport in 1952.
Legal Issues Presented
- Whether the appellant possessed Indian citizenship under Article 5(c) of the Constitution of India, thereby negating the application of the Foreigners Act.
- Whether, in the absence of a determination by the Central Government on the appellant’s representation dated 16 March 1962, the appellant could lawfully be directed to leave India.
- Whether the appellant’s acts—holding a Pakistani passport, living in India on visas, and having family in Pakistan—demonstrated the absence of an Indian domicile and justified the conviction under Section 14 of the Foreigners Act.
Arguments of the Parties
Appellant's Arguments
- He had resided in Calcutta since 1914 and, therefore, acquired Indian citizenship at the commencement of the Constitution by virtue of Article 5(c).
- His representation dated 16 March 1962 was, in substance, a request under Section 9(2) of the Indian Citizenship Act, 1955, requiring the Central Government to determine his citizenship status before any expulsion.
- He had migrated from Pakistan to India before 19 July 1948 and should benefit from migration-related protections.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kulathil Mammu v. State of Kerala, AIR 1966 SC 1614; (1966) 3 SCR 706 | Defined “migration” broadly as movement from one place to another, irrespective of intent to reside permanently. | Used to reject the appellant’s claim that his 1914 move constituted migration from Pakistan to India, noting both places were part of undivided India at that time. |
Court's Reasoning and Analysis
The Supreme Court examined the concept of domicile, emphasizing that:
- Every person must have a single domicile, and the burden of proving a change rests on the party asserting it.
- A domicile of choice requires both residence and the intention to make the place a permanent home.
Applying these principles, the Court found:
- The appellant’s birth in Sylhet conferred on him a domicile linked to that territory, which became part of Pakistan after partition.
- His continued possession of a Pakistani passport in 1952, use of Indian visas, and the residence of his wife and son in Pakistan demonstrated an intention inconsistent with adopting India as a permanent home.
- Although the High Court accepted that the appellant had resided in India for more than five years prior to 26 January 1950, mere residence without the requisite intention could not satisfy Article 5(c).
- The representation of 16 March 1962 was deemed a request “not to be pushed out” rather than an application under Section 9(2) of the Citizenship Act; consequently, no governmental determination was prerequisite to the issuance of the leave-India notice.
- The appellant’s subsequent application under Section 5(1)(a) of the Citizenship Act for registration as an Indian citizen, filed on 4 May 1962, was logically inconsistent with any assertion that he was already an Indian citizen.
On these findings, the Court affirmed that the appellant was a foreigner within the meaning of the Foreigners Act and that his failure to comply with the leave-India notice constituted an offence under Section 14.
Holding and Implications
Appeal dismissed; conviction and sentence of one month’s simple imprisonment affirmed.
The immediate consequence is that the appellant must surrender to his bail and serve the sentence. The judgment applies established principles of domicile and citizenship but does not introduce new precedent beyond reinforcing the Court’s earlier interpretation of “migration.”
A.N Ray, J.— This is an appeal by special leave from the judgment, dated July 18, 1969 of the High Court at Calcutta convicting the appellant under Section 14 of the Foreigners Act and sentencing him to simple imprisonment for one month.
2. The appellant was served with a notice on February 21, 1962, requiring him to leave India within thirty days. He did not do so. He was arrested on May 7, 1962. He was prosecuted under Section 14 of the Foreigners Act for violation of the notice to leave India. The defence of the appellant was that he was not a foreigner but was an Indian citizen. The Magistrate found that the prosecution failed to prove that the appellant was a foreigner and acquitted the appellant. The High Court reversed the acquittal.
3. Counsel for the appellant contended that the appellant was an Indian citizen.
4. The appellant was born at Sylhet which on the partition of India in 1947 became part of Pakistan. He came to Calcutta in 1914. He obtained a Pakistani passport in 1952.
5. It was said on behalf of the appellant that he came to Calcutta in 1914 and therefore at the commencement of the Constitution he became a citizen under Article 5(c) of the Constitution.
6. In the present case the domicile of origin communicated by operation of law to the appellant at birth at Sylhet could not on partition of India be called Indian. The domicile of choice is that every person of full age is free to acquire in substitution for that which he possesses at the time of choice. By domicile is meant a permanent home. Domicile means the place which a person has fixed as a habitation of himself and his family not for a mere special and temporary purpose, but with present intention of making it his permanent home. Domicile of choice is thus the result of a voluntary choice.
7. Every person must have a domicile. A person cannot have two simultaneous domiciles. Domicile denotes connection with the territorial system of law. The burden of proving a change in domicile is on those who allege that a change has occurred.
8. 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.
9. The High Court found that when the appellant came to Calcutta in 1914, he must have come over for a limited purpose or for some limited period. After the partition of India in 1947 the members of the appellant's family specially his wife and son lived in Pakistan. When the system of passport and visa was introduced the appellant obtained Pakistani passport and he stayed in India on visas granted by the State of West Bengal. The High Court was therefore correct in coming to the conclusion that the appellant did not have Indian domicile and the appellant was not an Indian citizen.
10. Counsel for the appellant contended that there was no consideration by and answer from the Government of India on the representation, dated March 16, 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 May 4, 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.
11. In the High Court it was contended on behalf of the appellant that he came to India before July 19, 1948, and, therefore, he had migrated from Pakistan to India. It is the view of this Court since the decision in Kulathil Mammu v. State of Kerala, AIR 1966 SC 1614, (1966) 3 SCR 706, (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 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 May 6, 1963. The representation of the appellant of March 16, 1962, did not merit any further answer after the rejection of the appellant's application for registration as an Indian citizen.
12. For these reasons, the appeal fails and is dismissed. The appellant will surrender to his bail and to serve out the sentence.
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