JUDGMENT :

1. This appeal has been preferred by the appellant-Bismark Bakuba Guitermbi against the judgment and order dated 29.8.2019, passed by learned Additional Sessions Judge, Court No.3, Maharajganj, in Sessions Trial No.15 of 2019 (State vs. Bismark Bakuba Guitermbi) arising out of Case Crime No.11 of 2018 under Sections 419, 420 IPC read with Section 14-A of the Foreigners Act, 1946 (hereinafterreferredtoas'theAct,1946'), in which the appellant has been awarded four years rigorous imprisonment with fine of Rs.10,000/-, six months rigorous imprisonment under Section 14-A of the Act, 1946, and the appellant was acquitted under Sections 419 and 420 IPC.

2. The brief facts of the case are that complainant-Tej Pratap Maurya (ACIO-II/Ex) posted in Immigration Office, Sonauli, District-Maharajganj, submitted a report at Police Station-Sonauli that on 13.1.2018, he was posted there with Vipin Kumar Singh. They were on night duty. In the morning at about 5:00a.m., one foreign national-Bismark Bakuba Guitermbi S/o Francosis Guitermbi R/o 67-ST Benoit Eglise, Bangui, Petevo, Central Africa, reported in the office for going to Nepal from India. At the time of checking his Passport and Visa, it was found that there was stamp affixed on Visa dated 9.12.2017 showing his arrival at Indira Gandhi International Airport, New Delhi. When the concerned authority at Airport, New Delhi was contacted to confirm his arrival, it was informed through letter No.290/RAF/A dated 13th January, 2018, and returned letter No.27/Misc/SNL/18 dated 13.1.2018 that in his UCF data, there was no record available for his arrival/departure and the stamp affixed on passport was fake. Hence, the foreign national-appellant was handed over at Police Station-Sonauli.

3. On the basis of above report of Immigration Office, Case Crime No.11 of 2018 was registered against the appellant under Sections 419, 420 IPC and Section 14 of the Act, 1946. Charge was framed by trial court under Sections 419, 420 IPC and Section 14A of the Act, 1946. Learned trial court acquitted the appellant under Sections 419 and 420 IPC and convicted him under Section 14-A of the Foreigners Act and awarded sentence of four years RI and Rs.10,000/-fine and six months imprisonment in default of fine. Hence, this appeal.

4. Heard Shri Anup Kumar Pandey, learned counsel for appellant, Shri B.A.Khan, learned AGA for the State and perused the record.

5. At the outset, learned counsel for the appellant submitted that initially, the trial was conducted under Section 14 of the Act, 1946, but when nothing was found against the appellant, charge was amended after recording the statement of appellant under Section 313 Cr.P.C. Amended charge was levelled under Section 14-A of the Act, 1946, and the appellant was convicted in the said charge. It is also submitted by counsel for the appellant that appellant was acquitted under Sections 419, 420 IPC, but convicted under Section 14-A of the Act, 1946. It is also argued that when there was no cheating found and appellant was acquitted under Sections 419, 420 IPC, he could not have been convicted in Foreigners Act, 1946, because it is said by prosecution that the stamp affixed on his passport and visa was fake, but when appellant is acquitted for the offence of cheating, it proves that the stamp was not fake. Hence, the learned trial court has given contradictory findings and the evidence on record is not appreciated in the right perspective. It is also argued that even in entire judgment and order impugned herein, charge under Section 14-A of the Act, 1946, was not considered by trial court. Trial court has also given a finding that appellant's passport was valid. Hence, appellant was having valid passport-visa.

6. Learned counsel for the appellant also argued that Investigating Officer (PW4) before the trial court has stated in his statement that he himself did not verify arrival of appellant from New Delhi Airport; he only relied on the inquiry made by Immigration O