The court emphasized the right to bail and speedy trial, ruling that the absence of incriminating evidence justified granting bail to the applicant.

JUDGMENT :

Siddharth, J.

Heard Sri Pradeep Kumar -IV, learned counsel for the applicant as well as the learned AGA for the State and perused the material placed on record.

The instant bail application has been filed on behalf of the applicant, Yang Mengmeng, with a prayer to release him on bail in Criminal Case No.118594 of 2024, Charge-sheet No.138 of 2024, Charge- sheet dated 27.9.2024, Case Crime No. 142 of 2024, under Sections 340(2), 318(2), 319, 337, 61(2) B.N.S. and under Section 14-A of Foreigner's Act, Police Station Sonauli Kotwali, District-Maharajganj, during pendency of trial.

There are allegations in the FIR dated 01.8.2024 lodged by the police that the applicant alongwith two co-accused, namely, Gu Baoqiang and Lobsang Tsering, were caught trying to illegally enter the Indo-Nepal boarder, being foreign nationals. On inquiry, passports of the applicants and other accused, Gu Baoqiang, were found to be of Chinese origin. Third person, namely, Lobsang Tsering, was found with Indian Aadhar Card, Nepalese Driving Licence, Indian PAN Card, Indian Voter Card, one ATM, mobile phone, Indian currency of Rs.2100/- and Nepalese currency of Rs.5700/-. No other recovery was made from the applicant and other Chinese national.

Learned counsel for the applicant has submitted that all the offences alleged against the applicant are triable by Magistrate. He has no criminal history to his credit either in this country or his native country. The applicant being Chinese national, his investigation was transferred to A.T.S. Field Unit, Gorakhpur. The mobile phone of the applicant was sent to F.S.L., Lucknow, but nothing incriminating was recovered from the same. After investigation, A.T.S. converted the implication of the applicant under Sections 336(3), 61(1) B.N.S. to lesser Section 318(2), 319, 337, 61(2) B.N.S. and Section 14 of Foreigner's Act, 1946 and reduced and replaced by Sections 340(2), 318(2), 319, 337, 61(2) B.N.S. and Section 14-A of Foreigner's Act. However, Section 14 (C) of the act was added in the case of co-accused, Lobsang Tsering and charge-sheet was submitted under Sections 138(2), 319, 337, 340(2) and 61(2) B.N.S. and Section 14-A of Foreigner's Act against the applicant and his Chinese co-accused.

Learned counsel for the applicant has further submitted that applicant was not arrested from any "restricted area" within the meaning of Section 2(b) of the Foreigners (Restricted Area) Order, 1963 and hence no offence under Section 14-A of Foreigner's Act, 1946, is made out against him. The offences alleged under the provisions of B.N.S. are not made out against the applicant since he never possessed nor used any fabricated document at any point of time. The aforesaid offences were committed by co-accused, Lobsang Tsering. Charge- sheet has already been submitted against applicant and therefore, he cannot tamper with any prosecution evidence. Even otherwise evidence against him mostly is documentary in nature. He has lastly submitted that applicant merely strayed in Indian Territory and he has been falsely implicated in this case.

Learned AGA has filed counter affidavit wherein it has only been stated that the applicant unauthorizedly entered into territory of this country. The other averments made in the counter affidavit relate to the mode and manner of recovery against the applicant.There is no denial in the counter affidavit that applicant was found in any restricted area.

After hearing the rival contentions, this Court finds that nothing has been recovered from the applicant, which may prove that the applicant entered into country with some mala fide intention. Learned AGA is not able to point out any incriminating material recovered from the applicant. In the counter affidavit filed in bail application, no other criminal history has been brought on record against the applicant nor it has been disputed that the applicant was not arrested from the "restricted area" as defined under Section 2(b) of Foreigners (Restricted