THE SENTENCE OF IMPRISONMENT OF FOREIGNER HAS BEEN REDUCED FROM 10 YEARS TO 5 YEARS BY ALLAHABAD HIGH COURT. - Synopsis

Hon'ble Ram surat Ram (Maurya), J

1. Heard Sri Shailendra Srivastava, for the appellant and Sri Raj Bahadur,

A.G.A., for State of U.P.

2. This appeal has been filed from the conviction and sentence passed by

Additional Sessions Judge, Court No. 4, Maharajganj dated 30.01.2016, in S.T.

No. 23 of 2015, State of U.P. Vs. Mohammad Ahmed Mousa Abu Zayed

(arising out of Case Crime No. 911 of 2014, under Section 417, 420, 466, 467,

468, 471, 474 IPC and Section 14 (a) of Foreigners Act, 1946, P.S. Sonauli,

district Maharajganj), sentencing the appellant for one year rigorous

imprisonment with fine of Rs. 5000/- under Section 417 IPC, seven years

rigorous imprisonment with fine of Rs. 10000/- under Section 420 IPC, seven

years rigorous imprisonment with fine of Rs. 10000/- under Section 466 IPC,

ten years rigorous imprisonment with fine of Rs. 20000/- under Section 467

IPC, seven years rigorous imprisonment with fine of Rs. 10000/- under Section

468 IPC, ten years rigorous imprisonment with fine of Rs. 20000/- under

Section 471 IPC, seven years rigorous imprisonment with fine of Rs. 10000/-

under Section 474 IPC and five years rigorous imprisonment with fine of Rs.

20000/- under Section 14 (a) of Foreigners Act, 1946, with default stipulation.

3. On the complaint of Ramakant Yadav (PW-1), Head Constable-40

Ramanuj Yadav (PW-2) registered FIR of Case Crime No. 911 of 2014, under

Section 417, 420, 466, 467, 468, 471, 474 IPC and Section 14 (a) of Foreigners

Act, 1946, at P.S. Sonauli, district Maharajganj, on 14.09.2014 at 23.00 hours

against Mohammad Ahmed Mousa Abu Zayed (the appellant). It has been

stated in FIR that first informant was posted as Assistant Immigration Officer at

Immigration Office Sonauli. On 14.09.2014, he was on his duty. At about 15.00

hours, one foreigner, who was in the way to Nepal, handed over his Passport to

him for checking. Passport bears number 628698 AMMAN (JORDAN) in the

name of Mohammad Ahmed Mousa Abu Zayed (M), Date of birth- 18.09.1990,

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Issued on 09.04.2014. Photo affixed on the Passport was of that man. On

checking of Passport, it was found that there was neither any stamp of departure

nor that of arrival. On page-7 of Passport, an endorsement of India of DOUBLE

ENTRY EXTENSION VISA No. KA/B003/VEN/JOR/ 006325/2014, issued

from FRRO BANGALORE on 14.04.2014, was found. According to the

information supplied from CFB Delhi, Mohammad Ahmed Mousa Abu Zayed

arrived in Banglore on 15.08.2010 and residing there since his arrival. In such

circumstances, it is not possible for him to obtain Passport from AMMAN

(JORDAN) on 09.04.2014. Double Entry Extension Visa obtained by him

appeared to be forged. During preliminary inquiry, the foreigner had admitted

that his Extension Visa was forged. He informed his name as - Mohammad

Ahmed Mousa Abu Zayed son of Ahmed Mousa Abu Zayed, resident of Jordan-

Amman- Alnusha- Al Zarqa, Jordan, Father's mobile No. 00971506341551.

From above facts, it is proved that Mohammad Ahmed Mousa Abu Zayed has

resided in India on the basis of fabricated documents and on that day he was

departing from India on the basis of those fabricated documents.

4. At the time of arrest of Mohammad Ahmed Mousa Abu Zayed (i) Twelve

notes of Rs. 500/- each total Rs. 6000/- Indian currency, (ii) one mobile of

Nokia (iii) one mobile of Samsung Galaxy S-3, (iv) one Laptop Toshiba, charger

and Bag (v) wearing clothes (vi) one old Passport of Jordan No. J 835385, were

recovered, of which attachment memo (Ex-Ka-6) was prepared. After

registering FIR, SI Vijay Shankar Yadav (PW-3), investigated the case. He

recorded statements of the witnesses. He obtained information regarding old

Passport No. J 835385, from the Foreigners Regional Registration Office

Banglore, who through fax message dated 07.10.2014 (Ex-Ka-8) informed that

Mohammad Ahmed Mousa Abu Zayed had obtained Passport No. H 963507,

issued on 28.12.2003, which was valid till 28.12.2008. He obtained another

Passport No. J 835385, issued on 24.09.2008 valid till 23.09.2013. He arrived in

India via Banglore on 28.06.2008 on Student Visa No. AD763456 issued on

22.06.2008 valid till 21.12.2008. Initially he took admission for BCA Course of

three years duration in Mehra's Institute of Management Studies BCA & BBM

College Banglore. He then changed the College to Indian Academy Degree

College, Banglore and registered with this office vide No.

RCF/3161/BC/JORD/2008 and RP/Stay Visa issued up to 21.12.2011. He stayed

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at No. 911, Kalyannagar, Banasawadi, HRBR Layout Banglore-43. After that he

did not approach that office for any Visa extension and overstaying since

22.12.2011. On 20.05.2012, a case was registered against him by Banasawadi

Police Station Banglore City vide Crime No. 258/2012, u/s 341, 143, 147, 323,

324, 332, 353 IPC. He was arrested and enlarged on bail by ACMM Court 11,

Banglore. The case was pending vide Criminal Case No. 24344/2013, in which

next date 15.12.2014 was fixed. After completing investigation, he submitted

charge sheet No. 82 of 2014 on 18.10.2014 against the appellant, on which

cognizance was taken. On committal, S.T. No. 23 of 2015 was registered.

Additional Sessions Judge, framed charges on 01.04.2015. He amended the

charges on 19.12.2015. The appellant denied charges and claimed trial.

5. In order to prove the charges, the prosecution examined Assistant

Immigration Officer Ramakant Yadav (PW-1), the first informant, HC Ramanuj

Yadav (PW-2), to prove check FIR and Vijay Shankar Yadav (PW-3),

Investigating Officer. The appellant in his statement under Section 313 Cr.P.C.

denied the charges and stated that he had handed over his papers to an Agent for

extension of his Visa, who had handed over Extended Visa and he bonafide

believed that it was genuine Visa. He could never know that his Visa was a

fabricated document. Additional Sessions Judge, by his judgment dated

30.01.2016, held that admittedly Passport found from the possession of the

appellant was a fabricated document. The appellant overstayed in India without

extension of Visa. On these findings, he convicted the appellant under Section

417, 420, 466, 467, 468, 471, 474 IPC and Section 14 (a) of Foreigners Act,

1946, and sentenced as mentioned above. Hence, this appeal has been filed.

6. I have considered the arguments of the counsel for the parties and

examined the record. At the time of arrest of the appellant, (i) Twelve notes of

Rs. 500/- each total Rs. 6000/- Indian currency, (ii) one mobile of Nokia (iii)

one mobile of Samsung Galaxy S-3, (iv) one Laptop Toshiba, charger and Bag

(v) wearing clothes (vi) one old Passport of Jordan No. J 835385, were

recovered, of which attachment memo (Ex-Ka-6) was prepared. When

Investigating Officer made inquiry in respect of old Passport of the appellant,

from the Foreigners Regional Registration Office Banglore, then through fax

message dated 07.10.2014 (Ex-Ka-8), he informed that Mohammad Ahmed

Mousa Abu Zayed had obtained Passport No. H 963507, issued on 28.12.2003,

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which was valid till 28.12.2008. He obtained another Passport No. J 835385,

issued on 24.09.2008 valid till 23.09.2013. He arrived in India via Banglore on

28.06.2008 on Student Visa No. AD763456 issued on 22.06.2008 valid till

21.12.2008. Initially he took admission for BCA Course of three years duration

in Mehra's Insitute of Management Studies BCA & BBM College Banglore. He

then changed the College to Indian Academy Degree College, Banglore and

registered with that office office vide No. RCF/3161/BC/JORD/2008 and

RP/Stay Visa issued up to 21.12.2011. He was stayed at No. 911, Kalyannagar,

Banasawadi, HRBR Layout Banglore-43. After that he did not approach the

office for any Visa extension and overstaying since 22.12.2011. From this it is

clear that the appellant came to India under a valid Passport and Student Visa,

which was later on extended and valid till 21.12.2011. He was overstaying since

22.12.2011 and was arrested on 14.09.2014, when he was trying to cross border

of India. Thus he has committed offence under Section 14 (a) of Foreigners Act,

1946 and his conviction by Court below in this respect does not suffer from any

illegality.

7. From fax message dated 07.10.2014 (Ex-Ka-8), it is also proved that on

20.05.2012, a case was registered against the appellant by Banasawadi Police

Station Banglore City vide Crime No. 258/2012, u/s 341, 143, 147, 323, 324,

332, 353 IPC. He was arrested and enlarged on bail by ACMM Court 11,

Banglore. The case was pending vide Criminal Case No. 24344/2013, in which

next date 15.12.2014 was fixed. In the meantime, he obtained a Passport No.

628698 AMMAN (JORDAN), issued on 09.04.2014. On page-7 of this

Passport, an endorsement of India of DOUBLE ENTRY EXTENSION VISA

No. KA/B003/VEN/JOR/006325/2014, issued from FRRO BANGALORE on

14.04.2014. This Passport and entry in it of Extension Visa was a forged and

fabricated document. The defence of the appellant before the Court below that

he had handed over papers for extension of his Visa to an Agent, who after

getting extension, handed over this Passport and he could never know that this

document was a fabricated document. But this Passport and Extension Visa were

obtained after registering FIR of Crime No. 258/2012, u/s 341, 143, 147, 323,

324, 332, 353 IPC, on 20.05.2012 against the appellant. The appellant has

already got his Student Visa No. AD763456 issued on 22.06.2008 valid till

21.12.2008 extended as such his defence that the Agent has cheated him is not

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liable to be accepted. He has not disclosed the name of the Agent, who has

cheated him. Thus he has committed offence punishable under Section 466, 471

and 474 IPC. His conviction under Section 417, 420, 467 IPC is set aside.

8. So far as sentence awarded to the appellant is concerned, from the

evidence on record, it is proved that the appellant came to India on the basis of

valid Passport and Student Visa. He also took admission for BCA three years

degree Course in Mehra's Insitute of Management Studies BCA & BBM College

Banglore. He then changed the College to Indian Academy Degree College,

Banglore. The age of the appellant is also about 27 years. Supreme Court in

Habib Ibrahim v. State of Rajasthan, (2008) 6 SCC 772, held that for violation

of Foreigners Act, 1946, there is need for imposing stricter sentence as the large

number of infiltrators that come to India without valid documents. Maximum

sentence under Section 14 of Foreigners Act, 1946 is five years imprisonment.

Other offences have been committed in relation to the offence under Foreigners

Act, 1946 as such for other offences also same sentence is liable to be awarded.

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