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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