Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2008
(Arising out of SLP(Crl) No. 4136 of 2008
Habib Ibrahim ...Appellant
Versus
State of Rajasthan ...Respondent
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Learned
Single Judge of the Rajasthan High Court, Jaipur Bench,
upholding the conviction of the appellant for offence
punishable under Section 3 read with Section 14 of the
Foreigners Act, 1946 (in short the ‘Act’) and sentence to
five years rigorous imprisonment with fine of Rs.25,000/-
with default stipulation. Two other persons faced trial
alongwith the appellant for offences punishable under
Section 13 read with Section 14 of the Act. While co-
accused Bagwan Sahai Sain acquitted, the other accused
Smt. Sunita alias Sonu alias Nagma convicted and
sentenced to undergo simple imprisonment for three
years and to pay fine of Rs.5,000/- with default
stipulation.
3. Background facts in a nutshell are as follows:
SHO Vidhadhar Nagar, Jaipur acting upon the information
of informant on 13.1.2004, the then SHO Richpal Singh
alongwith Superintendent of Police reached at Vidhyadhar
Nagar bus stand No. 15 and verified the information given that
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the persons accompanying with Bhagwan Sahai Sain R/o
Village Aakedadugar is a Pakistani resident who is living in
India illegally. Thereafter at about 8.15 am he reached at Bus
stand No. 1t alongwith two witnesses. He found one person
with Bhagwan Sahai. Upon inquiry, he told his name to be
Habib Ibrahim, son of Ibrahim Rahamtullah R/o Gali No. 3
Mullah Allah Dadlen Gobol Road, Liyari, Karachi, Pakistan.
The documents authorizing stay in India were demanded from
Habib Ibrahim and he was asked the reasons for coming to
India. He did not give any satisfactory answer. On the basis
of suspicion he was searched in the presence of witnesses and
a Pakistani passport was recovered from his pocket and
tourist visa for six months for Nepal, telephone bills were
recovered from him. Bhagwan Sahai and Smt. Sunita
@Sonu@Nagma were also arrested as they were helping Habib
Ibrahim who was living in Indian illegally. FIR No. 14/2004
was registered and investigation started. During investigation
a spot map was prepared and the statement of accused were
recorded and they were arrested. On the information of
accused Habib Ibrahim, Nepalese currency, a reliance mobile
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of Nokia company and tickets of airlines, documents and cash
relating to Bangladesh and Indian currency were recovered
from his house at 8/37 Vidhyadhar Nagar which were seized
and produced before the court. After complication of
investigation, charge sheet was filed.
4. The learned Chief Judicial Magistrate, Jaipur found that
the accusations against the accused appellants were fully
established. Accordingly conviction was recorded and
sentence was imposed. In the Criminal revision filed before
the High Court, stand taken was that he had come to meet his
wife and children who were residing at Jaipur. It was further
submitted that since the accused had suffered custody for
more than three years and nine months, a liberal view has to
be taken. The State opposed the stand contending that the
appellant knowingly and willfully came and stayed in India
without any passport. Whether he is resident of Pakistan or
Onam as claimed, the appellant had only a tourist visa to visit
Nepal and that too the currency period of visa was only six
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months. Long thereafter the appellant was found in India
without a passport.
5. The High Court found that the conviction was well
founded and there was no scope for reducing the sentence.
6. The stand taken by the parties before the High Court was
reiterated. It is submitted by learned counsel for the
appellant that he has already suffered custody for more than
four years and six months and the sentence should be
reduced Sections 3, 13 and 14 of the Act reads as follows:
“Section 3: Power to make orders (1) The Central
Government may by order make provision, either
generally or with respect to all foreigners or with
respect of any particular foreigner or any prescribed
class or description of foreigner, for prohibiting
regulating or restricting the entry of foreigners into
India or their 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
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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;
(b) shall not depart from India or
shall depart only at such
times and by such route and
from such port or place and
subject to the observance of
such conditions on departure
as may be prescribed;
(c) shall not remain in India or in
any prescribed area therein;
(cc)
shall, if he has been required by
order under this Section not
remain in India, meet from any
resources at his disposal the cost
of his removal from India and of his
maintenance therein pending such
removal.
(d) shall remove himself to, and remain in,
such area in India as may be prescribed;
(e) shall comply with such conditions as
may be prescribed or specified-
i. requiring him to reside in a particular
place;
ii. imposing any restrictions on his
movements;
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iii. requiring him to furnish such proof of
his identify and to report such
particulars to such authority in such
manner and at such time and place as
may be prescribed or specified;
iv. requiring him to allow his photograph
and finger impressions to be taken and
to furnish specimens of his
handwriting and signature to such
authority and at such time and place
as may be prescribed or specified’
v. requiring him to submit himself to
such medical examination by such
authority and at such time and place
as may be prescribed or specified;
vi. prohibiting him from association with
persons of a prescribed or specified
description;
vii. prohibiting him from engaging in
activities of a prescribed or specified
description;
viii. prohibiting him from using or
possessing prescribed or specified
articles;
ix. otherwise regulating his conduct in
any such particular as may be
prescribed or specified;
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(f) shall enter into a bond with or without
sureties for the due observance of, or as
an alternative to the enforcement of, any
or all prescribed or specified restrictions or
conditions;
(g)shall be arrested and detained or
confined;
and may make provision for any matter which is
to be or may be prescribed and for such
incidental and supplementary matters as may, in
the opinion of the Central Government, be
expedient or necessary for giving effect of this
Act.
3. Any authority prescribed in this behalf may
with respect to any particular foreigner make
orders under clause (e) [for class (f) of sub
section (2)]
Section 13. Attempts etc., to contravene the
provisions of this Act, etc. – (1) Any person who
attempts to contravene or abets or attempts to
abet or does any act preparatory to a
contravention of the provisions of this Act or of
any order made or direction given thereunder, or
fails to comply with any direction given in
pursuance of any such order, shall be deemed to
have contravened the provisions of this Act.
(2)
Any person who, knowing or having
reasonable cause to believe that any
other person has contravened the
provisions of that Act or of any order
made or direction given thereunder, gives
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that other person any assistance with
intent thereby to prevent, hinder or
otherwise interfere with his arrest, trial or
punishment for the said contravention
shall be deemed to have abetted that
contravention.
(3) The master of any vessel or the pilot of
any aircraft, as the case may be, by
means of which any foreigner enters or
leaves India in contravention of any order
made under or direction given in
pursuance of, Section 3 shall, unless he
proves that he exercised all due diligence
to prevent the said contravention, be
deemed to have contravened this Act.
14. Penalties – If any persons contravenes the
provisions of this Act or of any order made
thereunder, or any direction given in pursuance of
this Act or such 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 sub-section (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. Prosecution evidence clearly establishes that the
appellant did not have passport to stay in India. This fact is
not disputed by the appellant. The only plea to justify his
presence was that he had come to visit his wife and children.
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As rightly noted by the courts below, the appellant had been
issued a transit visa that too for Nepal for a period of six
months. There was no valid document in possession of the
appellant to stay in India. The only plea to justify his
presence was that he had come to visit his wife and children.
That does not give any right to him to stay illegally in India.
As rightly noted by the courts below, the appellant had been
issued a transit visa that too for Nepal for a period of six
months. There was no valid document in possession of the
appellant to stay in India. Therefore Section 3 read with
Section 14 of the Act have been rightly applied. The
conviction therefore cannot be faulted. So far as the sentence
is concerned, considering the large number of infiltrators
come to India without valid document, there is need for
imposing stricter sentence. The reasons given by the
appellant to justify his presence in India have hardly any
substance. Appellant’s feeble plea that he did not know that
he is required to be in possession of valid document is without
substance. Otherwise, he would not have obtained any transit
visa for Nepal.
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8. Above being the position there is no scope for
interference in the appeal.
9. The appeal is accordingly dismissed.
………………………….……
…..J.
(Dr. ARIJIT PASAYAT)
………………………….……
….J.
(P.P. NAOLEKAR)
New Delhi,
June 13, 2008
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