COURT OF JUDICIAL
MAGISTRATE IST CLASS PATTAN KMR.
Present :-
Mahmmud Anwar Alnasir
File No.197/B D.O.Inst: 23-03-2009. D.O.Dec:-07-08-2012
In
the Case of:
State
through SHO Police Station Pattan under
FIR No. 155/2008 under section 2/3 E & IMCO 12 Passport Act.
Versus.
1.
Reyaz Ahmad Parray S/o, Gh. Mohd
R/o, Goshabugh,
2.
Rashid Sultan S/o, Mohd sultan
Bhat, R/o, Hanjivera Pattan.
3.
Showkat Hussain
Lone S/o, Ali Mohd Lone R/o, Hanjivera Pattan.
….Accused persons.
Ld. Sr.PO
for the State present.
Accused
alongwith their counsel Mr. Mohd Maqbool
Khan (Adv) present.
JUDGEMENT
The instant case depicts the tragedy of a
divided nation whose burden shall be carried by
the generations to come. The
mirage of so called freedom struggle
which allured the youth and
engulfed the whole society especially in
the State of J&K a territory
being claimed by both the Nations who were born on the midnight of 14th and 15th of August 1947, yet the stark realities
remains that part of it is under
occupation of Pakistan and part of it
continues to be recognized as state of Union of India and yet another part is
in the occupation of Peoples Republic of China. The instant offences are based
on crossing over the virtual lines of
political demarcation, though God
had made earth as one signal planet
without any political barriers and if at all there was a
difference of language color or
shape, it was meant to give people a
distinct identity so that they can be
recognized by each other. However, this identity has grown beyond the mundane
and has manifested itself in to various forms of religious ethnic, political
and linguistic identities which serve as power banks for those who want to
control the destinies of millions and in doing so we men have created borders,
lines of control and entry/ exit gates. Truly
G.B.Shah has remarked, “man is
born free yet he is in chains in everywhere”. Law being the collective will of
a politically sovereign, entity must be followed in its letter as well as
spirit and that is why the instant case finds its way in to the jurisdiction of
this Criminal Court.
The instant charge sheet was presented before
this court on 23-03-2009 which is culmination of FIR No. 155/08,
wherein they stated that on 15-11-2008 a written application from 29 RR
(Grenadiers) C/o, 56-APO is addressed to SHO Police Station Pattan for
registration of FIR which is as under:-
FIRST
INFORMATION REPORT
1. Based on information provided by unit source
regarding presence of threde listed terrorists of Hizbul Mujahideen travelling
in a vehicle from Miragund to Baramulla, a mobile vehicle check post com search operation at general area
Hanziviura Bridge was launched by the troops of 29 Rashtriya Rifles and
representative of Special operation Group, Pattan at 1530h on 15 Novemeber
2008. During the course of search three listed terrorists were apprehended from
genral area Hanziviura Bridge (MT-4915). Details of these apprehended
a.
Riaz
Ahmad Parray S/o, Gh. Muhammad R/o, Goshabug age 27 yrs.
b.
Rashid
Sultan Bhat S/o, Muhammad Sultan Bhat R/o, Hanziviura age 25 yrs.
c.
Showkat
Ahmed Lone S/o, Ali Muhammad Lone R/o, Hanziviura age 26 yrs.
2. During the preliminary investigation following
indiscriminate documents were found from the possession of terrorists. Details
are enumerated as under:-
a. Riaz Ahmad Parray was in possession of following:-
i.
Passport
No. AL-3949531 of Islamic Republic Pakistan.
ii.
Iden Card
No. 82203-0427953-1.
b. Rashid Sultan Bhat was in possession of following:-
i.
Passport
No. BC-3174531 of Islamic Republic Pakistan.
ii.
Iden Card
No. 82203-0532453-1.
c. Showkat Ahmed Lone was in possession of following:-
i.
Passport
No. BM-8793221 of Islamic Republic Pakistan.
ii.
Iden Card
No. 82203-9787322-7.
3. You are requested to kindly register an FIR in this
matter under relevant acts. A copy of the FIR may please be provided to this
office for our records.
Yours faithfully,
Sd/-
29.
Rashtriya Rifles.
On the
basis of this investigation was endorsed to IO, Ab. Majeed SI No. 3683/NGO of Police Station Pattan who has investigated
the case collected the relevant documents prepared site plan, seizure memo,
arrest memo, recorded the statements of the PW’s and presented the charge sheet
in terms of 2/3 E & IMCO read with 12 Passport Act. The accused were charge
sheeted on 02-04-2009 and since they
denied the charges. Accordingly, the prosecution was directed to lead evidence
and during the course of trial two witness i.e. PW5 and PW6 were examined. The
brief gist of the PW’s on recorded is as
follows:-
PW 4
inspector Ab. Majeed:- states in examination in chief that 29 RR
alongwith SOG Pattan on 15th of Nov. 2008 brought Reyaz Ahmad
Parray, Rashid Sultan and Showkat Hussain
in Police Station alongwith three passports and three identity cards
which were seized, as such FIR was registered. He has seen the passports and
the identity cards they are same which
he has seized as per the seizure memo. He has registered the FIR and admits the contents of the FIR which
exhibited as EXPW- PW -3-1. He has not
done any further investigation but has recorded
his satisfaction on the charge.
In cross examination he stated that
Subedar-Major brought them alongwith passport in his office and they stated that they have seized these
documents from the accused and he has received these passports from Subedar
Major. Search was conducted on spot and
not in front of this PW and he has not seized them on spot. In examination by
the Court he states that he does not
have any personal knowledge, however, the pictures in the passports are of the
accused and though he had recorded satisfaction on the charge-sheet yet he did
not confirm as to whether passports are
original or fake one. He further states
that no missing report with regard to
the three accused persons or any disappearance report is not on file, that they had crossed over across the border,
nor it is part of the record that they are Indian citizens.
Statement of PW 5 Sub-Inspector
Ab. Majeed No. 3883/NGO states in examination in chief
that he knows the accused on 15th of November 2008 at 11 o'clock
night Bishan Singh of 29 RR and SOG Pattan brought three accused alongwith them and also three
passports and identity cards in which the accused are shown as Pakistani
citizens as such FIR 155/08 was registered and accused were arrested under
section 2/3 E & IMCO 12 Passport
Act. He was endorsed the investigation and he seized the passports as
well as the Identity cards and prepared the seizure memo in this regard which
he admits to be true and correct and the same is exhibited as EXPW- 5. He also
recorded the statement of the prosecution witnesses and prepared the site plan.
In cross examination he states that,
he prepared the seizure memo in Police Station. Passports were presented by the
complainant and they said they had recovered it from the accused. As per the
complainant accused were arrested on the same day at about 4.00 - 4.30. They were arrested near Hanjivera bridge and as per FIR they
were arrested at 4 o'clock. This is true to state that Hajivera bridge is half
a kilometer away from the Police Station. When they were arrested, whether the
Police Station was informed or not is not known to the witness. Accused were
arrested on National highway where the hundreds of vehicles are plying. He went
on spot on the 2nd day, however does not remember as to what time he went there. He had gone
there to prepare site plan. The place
was identified by the complainant. There was nobody else present on spot and no
Numberdar or civilian was brought from the nearby village. Only he and the
complainant were present on the spot. This is true that before preparation of
site plan he had prepared the seizure memo in the Police Station. This is also
true that these passports were with the complainant and were not seized by the
personal search of the accused persons. The passports etc. were not seized in front of this PW. At 11 o'clock Subedar
turned up in the Police Station on the day of occurrence and then in the
evening he came for the registration of FIR. The seizure memo shown to him is prepared
by him. However the timing is not registered on it, it is in his hand. Passports
reveals Pakistani citizenship of the accused. This witness has not
investigated as to what nationalities the accused belong and he has not done
any effort in this regard. However, as per FIR accused have been termed as
Indian citizens. It is the duty of the investigating officer to bring the truth
to the fore. Complainant had presented no claim certificated as well as handing
over taking over certificate in front of the SHO of the time.
The Sr.PO appeared on behalf of the
stated has argued that the accused who have crossed over the Pakistan occupied Kashmir through
Line of Control in the first instance have violated the Egress &Ingress Movement Control Ordinance by crossing
over through Line of Control in terms of section 2/3 E & IMCO and
thereafter, they have naturalized as
Pakistani citizens as is evident from
the passports seized from them. Wherein
there national identity cards as well as passports are issued by the Islamic Republic of Pakistan which reveals passport number as well as
citizenship member and thereafter, the accused have taken the visa’s as Nepal
as tourist emigrants which is evident
from the entry on the passport,
travelled through the mode of air
transport boarding flights from Karachi Airport on 12th of November
2008, as is evident from the emigration stamp and arrived at Nepal
International Airport on the even date
for a period of 30 days and
thereafter via Nepal they have sneaked into the Indian territory without any
valid visa and were apprehend by the security forces on 15th of
November 2008 when PW 1 Subedar Major
Bishan Singh of 29 RR alongwith his team apprehended them at Hanjivira bridge. On the basis of
prior information through source and handed over the three accused alongwith documents to the Police
for lodging FIR. It was at this point of time that investigation was
started and after recording the statements of the witnesses etc. prima facie it
was established that the accused have committed offences in terms of section
2/3 of E & IMCO read with section 12
of the Indian Passport Act. It has also been argued by the ld. Sr.PO in view of the testimony of
the PW 4 and PW 5 it is clearly
established that the accused were in
possession of the Pakistani Passports which carry their Photographs alongwith
national identity card issues by Islamic Republic of Pakistan. Therefore, the
offences against the accused are established beyond reasonable doubt and they
be punished under the relevant provisions of law as charge sheeted.
On the
other hand the Ld. Counsel for the accused has argued that the seizure memo has
not been fully proved as the statement of the IO, reveals that he has seized
these passports from the accused when they were already in custody of the Army
(29 RR) and it was PW 1 Subedar Major
Bishan Singh who had handed over the
accused along with the Passports and the Identity Cards to the SHO with an application to register the FIR and
it is his assertion that he has seized the said items from the accused.
However, the perusal of the seizure memo
which is presented though not exhibited dated 15th Nov.2008 revels
that there is no ones signatures on the seizure memo though it is countersigned
by Major Adjutant . A. Sandhu, and there are no signatures of the representatives of the Police on the
said seizure memo similarly the no claim certificates which is a part of the
file are not signed by any witnesses nor any timing is mentioned on them.
Though the accused have been made to sign on them and finally the handing over taking over certificates also
reveals that who has taken over is still to be known ! The witnesses have also been not recorded as to
in whose presence the handing over taking over certificates were singed. EXPW-
5 reveals that the said passports and identity cards have been seized by the
IO, of Police Station Pattan in presence of Subedar Bishan Singh and other two
witnesses and out of five witnesses the
three witnesses who have apprehended the accused have not been examined. As such,
it cannot be proved beyond reasonable doubt that the accused possessed these
documents or the same were recovered from their possession. The non-examination
of the PW’s 1, 2 and 3, is therefore, fatal to the prosecution story as they
could have shed light as to whether the said documents have been recovered from
the possession of the accused are not, and non-examination of the said
prosecution witnesses has seriously prejudice
the case of the accused as such
prosecution has not been able to prove
the guilt of the accused
beyond reasonable doubt.
I have heard the rival contentions
of the parties and considered the material placed on record before dwelling
upon the merits of the case. It is
relevant to refer to the laws applicable in the instant case.
“PENALTY
FOR OFFENCES UNDER PASSPORT ACT, 1967
Imposition of penalties
for suppression of information under Section 12(1) (B) of Passport Act, 1967 is
as given below:
(i)
Under Section 12 of the Passport Act, 1967 - whoever contravenes the provisions
of the Act by traveling without a valid passport, knowingly furnishes wrong
information or attempts to alter entries made on the passports or travel
documents, fails to produce his/her passport for inspection, knowing uses a
passport or travel document issued to another person or knowingly allows
another person to use a passport or travel document issued to him shall be
punishable with imprisonment for a term up to 2 years or with fine up to Rs.
5,000/- or with both
and also are liable to
penalties as described under Foreigners Act.
THE
FOREIGNERS ACT, 1946
Act : An Act to confer upon the Central
Government certain powers in respect of foreigners.
Whereas it is expedient
to provide for the exercise by the Central Government of certain powers in
respect of the entry of foreigners into India, their presence therein and their
departure there from;
It is hereby enacted as
follows:
1. Short title and
extent. —
(1) This Act may be
called the Foreigners Act, 1946.
(2) It extends to the
whole of India.
2. Definitions. — In
this Act, —
(a) foreigner means a
person who is not a citizen of India;
(b) prescribed means prescribed by orders made
under this Act;
(c) specified means specified by direction of
a prescribed authority.
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 to 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 there from or their presence or continued presence therein.
(2) In particular and
without prejudice to the generality of the foregoing powers, orders made under
this section may provide that the foreigner —
(a) shall not enter
India or shall enter India only at such 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 to 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;
(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;
(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 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 to this Act.
8. Determination of
nationality. — (1) When a foreigner is recognized as a national by the law of
more than one foreign country or where for any reason it is uncertain what
nationality, if any, is to be ascribed to a foreigner, that foreigner may be
treated as the national of the country with which he appears to the prescribed
authority to be most closely connected for the time being in interest or
sympathy or if he is of uncertain nationally, of the country with which he was
last so connected:
Provided that where a
foreigner acquired a nationality by birth, he shall, except where the Central
Government so directs either generally or in a particular case, be deemed to
retain that nationality unless he proves to the satisfaction of the said
authority that he has subsequently acquired by naturalization or otherwise some
other nationality and still recognized as entitled to protection by the
Government of the country whose nationality he has so acquired.
9. Burden of proof. —
If in any case not falling under Section 8 any question arises with reference
to this Act or any order made or direction given there under, whether any
person is or is not a foreigner or is or is not a foreigner of a particular
class or description the onus the proving that such person is not a foreigner
or is not a foreigner of such particular class or description, as the case may
be, shall notwithstanding anything contained in the Indian Evidence Act, 1872,
(1 of 1972) lie upon such person.
14. Penalties — If any
person contravenes the provisions of this Act or of any order made there under,
or any direction given in pursuance of this Act or such, 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.
15. Protection to
persons acting under this Act. — No suit, prosecution or other legal
proceedings shall lie against any person for anything which is in good faith
done or intended to be done under this Act.
16. Application of
other laws not barred. — The provisions of this Act shall be in addition to,
and not in derogation of, the provisions of the Registration of Foreigners Act,
1939 (16 of 1939) the Indian Passport Act, 1920 (34 of 1920) and of any other
enactment for the time being in force.”
The following facts gets
provided from the evidence on record i.e.:-
a. That all the three accused were apprehended at
Hanjivira Bridge as per the testimony of
the PW 4 and PW 5 which corroborated each other alongwith the documents in possession which
are undoubtedly Passport and National Identity Cards issued by the Islamic
Republic of Pakistan and when the said
evidence was put to the accused in terms of section 342 of Cr.PC , they have
simply said that they have been
implicated on the basis of personal animosity but have not put forth any
conclusive rebutting evidence to substantiate as to what animosity they had
either with the officials of 29 RR or with the Police personnel. It is also not
born from the record as to whether they are Indian Citizens as there is no
proof on record presented by the defense
to substantiate their Indian Nationality
either in the form of missing report in
some Police Station on the date when
they dis-appeared or in the form of
state subject, identity card, electoral card, school certificate or even Ration
card etc. to prove that they are Indian Nationals and not Pakistanis. Section 2
of the Foreigners Act 1946 defines as to who is Foreigner and section 3 confers on
the central Govt., the powers to make orders in terms of the cohabitation,
regulation and restrictions of the entry to Foreigners into the India including
their departure there from and the sub-section 2 of section 3 clause-A & C
both included the entry and the time period to remain in the Indian territory
and any violation thereof is to be punished under section 14 of the Foreigners Act. The same is
reproduced as under:-
“Penalties. — If any
person contravenes the provisions of this Act or of any order made there-under,
or any direction given in pursuance of this Act or such, 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.”
Section
9 of the said act (Indian Foreigners Act), the burden of proof is caused upon
the person whose nationality is under question and it is he who has to prove
that he is not a Foreigner and therefore not covered by the said act. In this
context judgment as reported in 1992 Cr.
L.J page 48 tilted Mohd Anwar Vs. State of Bihar . the same is reproduced
herein below:- :_
“Petitioner, a Pakistani national had entered India unauthorizedly via
Bangladesh without any valid passport, visa and he had not informed any
authority about his entry and stay in India and not got himself registered as a
citizen of India. He has clearly contravened cl. 3(1) and cl. 7(2) of
Foreigners Act, 1948 and committed offence under Sections 13 and 14 of the
Foreigners Act .”
There
has been no denial of the documents
recovered from the possession of the accused, nor and explanation as to how their photographs have
been appeared on the said documents by
all means they are Pakistani nationals and therefore, have violated the
provisions of Foreigners Act 1946, punishable under section 2 read with section
14 of the act though in the said
instance the liability cast upon them in terms of section 2/3 E & IMCO is
not established nor the violation in terms of section 12 of Passport Act is
established as both these offences shall be attracted in case the accused
herein are proved to be Indian nationals and residents of J&K state, having crossed over the
Pakistan occupied Kashmir through the Line of Control unfortunately this part
of the prosecution story has not been proved by the prosecution as such the
charges in terms of section 2/3 E & IMCO read with section 12 of the
Passport Act cannot sustain as such the accused herein are acquitted under the
said offences.
However, the Court cannot lose the sight of the
fact that the valid documents in the
form of passports issued to Islamic
Republic of Pakistan alongwith the National Identity Card, seized by the
Police cops from the accused as is
proved from the individual
testimony of the PW’s on record. It is
proved that they are Pak Nationals who
have entered the Indian territory as undesired guests without the permission of
the Indian Govt. as required in terms of
requirement of visa rules or in the alternative
have not naturalized themselves, as
Indian citizens , a burden cast upon them by law in terms of section 9 of the Indian
Foreigners Act to prove that they are Indian Nationals; having not discharged
by them. I have no hesitation in pronouncing them as guilty in terms of
section14 of the Foreigners act and as such convict them to undergo
imprisonment for a period of 3 years, since trial has already taken three years
therefore, taking into consideration the length of the trial and the conduct of
the accused during the trial, along with fine of Rs.25000/- each in default
which a further imprisonment of one year shall be undergone. Meanwhile the
Govt. of India is directed to make preparations for return of the said
un-desired guests who have already over stayed without proper permission. File
stands disposed of accordingly in these terms be consign to records. Copy of
this judgment be furnished to the convicts free of costs.
Announced;
07-08-2012. (Judicial Magistrate 1st. Class ),
Special Mobile Magistrate, Electricity.
Pattan Baramulla Kmr
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