Delhi District Court
State vs . Kasongo Asimaeel on 22 February, 2021
IN THE COURT OF SH. VIVEK KUMAR AGARWAL, MM04, SOUTH DISTRICT,
SAKET COUIRT, NEW DELHI
STATE VS. Kasongo Asimaeel
FIR NO: 311/19
P. S Maidan Garhi
U/s 14 of Foreigners Act, 1946
Unique ID No. 5699/19
JUDGMENT
Date of its institution : 05.12.2019
Name of the complainant : HC Rajeev
No. 1475/SD,
PS Maidan Garhi
New Delhi.
Date of Commission of offence : 01.11.2019
Name of the accused : Kasongo Abimael
S/o Mr. Kasongo
R/o H. No. 27, Kinchasa, Lemba,
Congo.
Offence complained of : 14 of Foreigners Act, 1946
Plea of accused : Not Guilty
Case reserved for judgment : Not reserved.
Final Order : Convicted u/s 14 of Foreigners
Act, 1946
Date of judgment : 22.02.2021
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. The present case is prosecuted by the State against the accused for having State Vs. Kasongo Asimaeel @ Abimael CC No. 5699/19 1/4 committed an offence punishable u/s 14 of Foreigners Act, 1946.
2. Succinctly stated, the facts of the case are that on 01.11.2019 at about 05.30 pm near Tivoli Garden, Rajpur Khurd, New Delhi within the jurisdiction of PS Maidan Garhi, accused was found staying in India without a valid visa and thereby the accused has committed offence punishable u/s 14 of Foreigners Act, 1946.
3. FIR was registered on the complaint of HC Rajeev. The matter was investigated and thereafter charge sheet was filed against the accused. Upon the basis of the charge sheet, cognizance was taken. A formal charge was framed against the accused vod 08.01.2020, to which he pleaded not guilty and claimed trial.
4. In order to substantiate its case, prosecution examined one witness. PW1 HC Rajeev deposed that on 01.11.2019 he was posted at PS Maidan Garhi as HC and on that day, he was on patrolling duty alongwith Ct. Praveen and at about 5.30 pm, while patrolling they reached near Tivoli Garden Rajpur Khurd accused was found strolling. Accused was asked to produce his identity proof however he failed to produce the same. Accused was taken to PS. Thereafter, PW1 prepared rukka Ex.PW1/A and he recorded disclosure statement of the accused i.e. Ex.PW1/B. Thereafter, HC Rajeev arrested the accused vide arrest memo Ex.PW1/C and personal search of the accused was conducted vide memo Ex.PW1/D. Thereafter, PW1 prepared site plan i.e. Ex.PW1/E. PW1 also gave information regarding his arrest to High Commission of Congo. He was cross examined on behalf of the accused.
5. Prosecution evidence stood closed. After closure of prosecution evidence, the statement of accused u/s 313 of Cr.P.C has been recorded. All the incriminating circumstances were put to the accused. The accused admitted that he was arrested by the police on 01.11.2019 as he was not having a valid visa. That he had shown the police the document of his refugee status however he did not State Vs. Kasongo Asimaeel @ Abimael CC No. 5699/19 2/4 understand the said document. That he had come to India on tourist visa and before that he had applied for refugee status with UNHCR. He chose to lead evidence in his defence. ASI Padma Kumar, official from FRRO, R.K. Puram was examined as DW1. Remaining DE has been closed by court order today only.
6. Final arguments were addressed by Ld. APP for the State and by Ld. Defence Counsel.
7. It is to observe that Section 2 (a) of Foreigners Act 1946 defines a foreigner as a person who is not a citizen of India. Further Section 14 (a) of Foreigners Act, 1946 provides punishment to a person who remains in India for a period exceeding the period for which the visa was issued to that person.
8. The allegations against the accused are that he being a foreigner overstayed in India despite the fact that his visa had expired. The fact that accused is a foreign national is not in dispute. Same has been further stated by the accused while charge being framed against him Cr.P.C. that he is the national of Congo. Again same is further corroborated from the admission of the accused in his statement recorded u/s 313 CrPC. Moreover, the burden was upon the accused only that he was not a Foreign National but a citizen of India. Now, PW1 has clearly deposed that the accused was arrested as he failed to produce any valid visa. It is to further observe that as per Section 106 of Indian Evidence Act, burden was upon the accused to explain, if he was having valid visa on the date of his arrest. To discharge the said burden, accused examined one witness from FRRO as DW1, however said witness has deposed in clear terms that visa of the accused had expired in the year and thereafter he had applied for extension of his visa, however same was declined. It was further clearly deposed that even if accused had applied for refugee status in UNHCR, he was under mandate to apply for extension of visa before FRRO. There is no law of the land which State Vs. Kasongo Asimaeel @ Abimael CC No. 5699/19 3/4 exempts any foreigner from being on valid visa to reside in India while he had applied for any status of refugee with UNHCR. Moreover, as mentioned in the document Ex. DW1/A placed on record by DW1, India is not a signatory to Refugee Convention of 1951 or its 1967 protocol. Again, judicial notice can be taken of the fact that India is not a party state to UNHCR. Accordingly, merely by the fact that accused had applied for refugee status, he was never exempted for being on valid visa. Consequently, the accused himself has supported the case of prosecution u/s 14 of Foreigners Act to the effect that on the date of his arrest i.e. 01.11.2019, accused was not having valid visa, which is even otherwise proved beyond reasonable doubts.
9. Accordingly, accused is convicted for offence punishable u/s 14 of Foreigners Act, 1946. Let he be heard on the quantum of sentence.
Announced in the open court (Vivek Kumar Agarwal) on 22.02.2021 MM04/South, New Delhi
It is certified that this judgment contains 4 pages and each page bears my signatures.
(Vivek Kumar Agarwal) MM04/South, New Delhi 22.02.2021 State Vs. Kasongo Asimaeel @ Abimael CC No. 5699/19 4/4