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2008 Supreme(SC) 975
2008(4) Supreme 497
SUPREME COURT OF INDIA
Dr. Arijit Pasayat and P.P. Naolekar, JJ.
Habib Ibrahim — Appellant
versus
State of Rajasthan — Respondent
Criminal Appeal No. of 2008
(Arising out of SLP(Crl) No. 4136 of 2008
Decided on : 13-06-08
IMPORTANT POINT
Where reasons given by appellant a Pakistani resident to justify his presence in India hardly had any substance, conviction of appellant for illegally staying in India without any passport was held sustainable.
Headnote:Foreigners Act, 1946 – Section 3 read with Section 14 – Conviction of appellant a Pakistani resident for knowingly and willfully coming and staying in India without any passport-Appeal against Conviction – Prosecution evidence clearly established that appellant did not have passport to stay in India – Said fact was not disputed by appellant – Only plea to justify his presence was that appellant had come to visit his wife and children – That did not give any right to him to stay illegally in India – Appellant had been issued a transit visa that too for Nepal for a period of six Months – No valid document in possession of appellant to stay in India – Hence Section 3 read with Section 14 of Act had been rightly applied – Conviction of appellant therefore could not be faulted – So far as sentence was concerned, considering large number of infiltrators coming to India without valid document, held that there was need for imposing stricter sentence – Reasons given by appellant to justify his presence in India had hardly any substance – Appellant’s feeble plea that he did not know that he was required to be in possession of valid document held to be without any substance – No scope for interference in the appeal – Appeal dismissed. (Paras 7 to 9)
Facts of the Case :
1. Appellant a Pakistani resident was convicted herein in the instant case for knowingly and willfully coming and staying in India without any passport.
2. Present appeal has been filed against said order of conviction.
Findings of the Court
Prosecution evidence clearly established that appellant did not have passport to stay in India. Said fact was not disputed by appellant. Only plea to justify his presence was that appellant had come to visit his wife and children. That did not give any right to him to stay illegally in India. Appellant had been issued a transit visa that too for Nepal for a period of six Months. No valid document was found in possession of appellant to stay in India. Hence Section 3 read with Section 14 of Act had been rightly applied. Conviction of appellant therefore could not be faulted. So far as sentence was concerned, considering large number of infiltrators coming to India without valid document, held that there was need for imposing stricter sentence. Reasons given by appellant to justify his presence in India had hardly any substance. Appellant’s feeble plea that he did not know that he was required to be in possession of valid document held to be without any substance. Appeal was dismissed.
Result : Appeal dismissed.
JUDGMENT
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 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 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 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 regula
