Delhi District Court
State vs Aynur Gylychmommedova on 8 June, 2011
IN THE COURT OF SH. SUDESH KUMAR
METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT:
PATIALA HOUSE COURTS: DELHI
FIR NO.: 05/10
POLICE STATION: CHANAKAYA PURI
U/S: 14 of Foreigner's Act
IN THE MATTER OF
STATE
VS.
Aynur Gylychmommedova
D/o Mr. Rahim
R/o Ata Srahs Hnalsko Etrab Turkmenistan
Also at 3rd Floor, Sector 17, Dwarka, New Delhi
Date of institution:19.02.2010
Date of reserving judgement/Order:07.06.2011
Date of Pronouncement of Judgement/Order:08.06.2011
Brief statement of reasons for such decisions :
1.The prosecution case in brief is that on 06.01.2010 the accused Aynur State Vs Aynur Gylychmommedova FIR NO.: 05/10 POLICE STATION: CHANAKAYA PURI U/S: 14 of Foreigner's Act 1 of 10 Gylychmommedova a Turkmenistan citizen was found present in India without any passport and visa and such contravened the provisions of Foreigners Act, 1946 and was charged with an offence U/s 14 of the said Act.
2. After investigation the charge sheet was filed by the IO on 19.02.2010. Copies were supplied to the accused. On 31.03.2010 a charge under section 14 of the Foreigners Act was settled against her to which she pleaded not guilty and claimed trial.
3. The matter was hence, posted for prosecution evidence. Prosecution has examined as many as 8 witnesses to prove its case.
4. I have heard arguments on behalf of the parties and perused the records.
(i) PW1 HC Naresh Kumar has proved the copy of the FIR as Ex. PW1/A and entry on Rukka as Ex. PW1/B. He also identified his signature at point A.
(ii) PW2 Sh. Raj Prakash who was a security guard at Ashoka Hotel has deposed that on the said night he found the accused Aynur in a intoxicated condition in the lobby of the hotel. He informed the lobby manager. The accused was interrogated by the police, her passport was demanded but she failed to produce any valid document for her stay in India. The witness correctly identified the accused in the court. The witness was recalled and crossexamined by Sh. Vishal Chadha, Ld. Legal Aid Counsel for the accused. In his crossexamination the witness deposed that there are 3 entrance of the Ashoka Hotel. On the night of 05/06.01.2010, he was on duty on the corridor leading to State Vs Aynur Gylychmommedova FIR NO.: 05/10 POLICE STATION: CHANAKAYA PURI U/S: 14 of Foreigner's Act 2 of 10 the Samrat Hotel side gate and one end of the corridor touches the lobby. The police official inquired from him about the incident, but he did not gave any statement to them.
No one was present in the corridor. The witness deposed further that he was not supposed to watch the lobby area and hence he was not aware as to who was present in the lobby. He did not saw the accused quarreling with any one in the lobby. He denied that the accused was assaulted and manhandled by other people in the lobby to which she objected and therefore, she was falsely implicated in the present case.
(iii) PW3 ASI Kavi Raj produced a report dated 27.01.2010 regarding arrival conformation in respect of Aynur @ Alisa i.e. the accused holder of passport no. 240911. He deposed that as per the record maintained at IGI Airport, it has been checked from 13.06.2008 to 15.06.2008 on the said passport no. and confirmed the arrival of accused on 14.06.2008 by flight no. T5535. He proved the above said report / card collectively as Ex. PW3/A. In his cross examination, he admitted that it was not mentioned in the report that the Visa of the accused is from such and such period and it only related to the arrival of the accused. He deposed that as per the report FRRO has no information regarding the duration of visa of accused or it has been extended or not.
(iv) PW4 Mr. Timothy Sudhir deposed that on the intervening night of 5/6.01.2010, his duty was from 10 PM to 6 AM as Lobby Manager in the Ashoka Hotel. Witness further deposed that one security guard namely Raj Prakash Sharma informed him that a lady was found in drunkened condition in the lobby of the hotel and she was abusing one of her friend whom she came to meet. They tried to talk to her but they were State Vs Aynur Gylychmommedova FIR NO.: 05/10 POLICE STATION: CHANAKAYA PURI U/S: 14 of Foreigner's Act 3 of 10 not able to understand what she was saying. So they took her to security control room where Surinder Singh, Security Manager also tried to know what was the matter but he was also helpless and they had to take the help from police. Thereafter, police alongwith lady Ct. visited the hotel and she was handed over to the police. Police officials asked her for her identification but she could not produce any identification to them. Lady Ct. checked her purse and from there a photocopy of passport was found. The witness identified the accused in the court.
PW 4 deposed in his crossexamination by Mr. Vishal Chadha, Legal Aid Counsel for accused that shift of his duties change periodically. The duration of his night shift was from 10 PM to 7 AM usually. He was on duty in the lobby area. Duty official Raj Prakash Sharma was in the lobby area. He did not call the police but it was Surinder Singh who called him but he did not make a call in front of him. He gave his statement to the police at the spot itself and even signed the statement given to the police. The statement was recorded by the police officials. The witness was confronted with Ex. PW 4/A wherein the signatures of the witness were not found. Two police officials had visited the hotel for the purpose of investigation. He did not knew to whom the accused came to meet. He did not knew with whom she had a quarrel. They make entry in the register of the guest who stay in the hotel. The accused was not staying in the hotel as per record of the hotel. He did not remember whether the friend of the accused was staying in the hotel or not. The quarrel did not took place between the accused and her friend in his presence but she was shouting in his presence.
PW 4 denied the suggestion that police did not ask the accused regarding her identification and as well as for her passport. He denied that police did not inquire anything regarding visa of the accused. He further denied that the accused was assaulted State Vs Aynur Gylychmommedova FIR NO.: 05/10 POLICE STATION: CHANAKAYA PURI U/S: 14 of Foreigner's Act 4 of 10 and manhandled by the people who were present in the lobby to which she objected and therefore, she was falsely implicated in the present case. He further denied that he was deposing falsely.
(v) PW5, Ct. Om Parkash, No. 871, PS, Chankya Puri was partly examined in chief as PW5 on 30.07.2010 however it seems that inadvertently he has been examined again as PW7 on 09.11.2010 and 16.12.2010. In his examination in chief he deposed that on 06.01.2011, he was posted at PS Chanakaya Puri. On that day on receiving DD no. 27A, he alongwith SI M.P. Saini reached at the Ashoka Hotel Control Room where accused present in the court was found in inebriated condition. She disclosed her name as Aynur Gylychama and told that she is resident of Turkministan. She was abusing the staff and despite being requested by SI M.P. Saini, she did not mend her ways. SI M.P. Saini called Lady Ct. Rekha from PS Chanakaya Puri who apprehended the accused on the directions of SI M.P. Saini. Despite being asked by SI M.P. Saini, she was unable to produce her travel documents and passport. Lady Ct. Rekha took the search of her purse in which a photocopy of passport in her name was recovered. She disclosed her local address as Sector17, 3rd Floor, Dwarka, however, she was unable to give the name of her apartment. She was got medically examined at RML Hospital. Thereafter, they took her to Dwarka but despite roaming around in the area she did not disclosed as to where her apartment was situated. Thereafter, they went to Turkmanistan Embassy where on inquiry they came to know that the accused was a citizen of Turkmanistan. Thereafter, they came back to PS Chanakaya Puri, where SI M.P. Saini got the FIR registered and the accused was arrested vide arrest memo Ex. PW 6/B bearing his signature at point B and she was got personally searched through lady Ct.
Rekha vide personal search memo Ex. PW 6/A. State Vs Aynur Gylychmommedova FIR NO.: 05/10 POLICE STATION: CHANAKAYA PURI U/S: 14 of Foreigner's Act 5 of 10
In his Cross examination by Mr. Puneet Singhal, Ld. Counsel for accused, the witness deposed that he went to the spot alongwith the IO as per the instructions of IO. They reached the spot at about 06.00 AM. They reached at the control room of Ashoka Hotel. He saw that a girl was quarreling with the private security staff of Ashoka Hotel. He could not tell the cause of quarrel but she was misbehaving with the security staff. There were attempts by IO and security staff to pacify her in his presence. The witness deposed that there was some private matter which was not known to him which caused her to quarrel. He came to know of her identity through lady Ct. Rekha. He on inquiry about her local whereabouts went to Dwarka on vehicle which was private or service the witness could not tell. They were four people in that vehicle including accused. The medical examination of accused was conducted at RML Hospital through Lady Ct. Rekha. He went to Turkmanistan Embassy in west Delhi with accused, lady Ct. Rekha and IO. There they met an officer namely Ms. Marel who confirmed her citizenship of Turkmanistan. After that accused was brought back to PS Chanakay Puri and further proceedings were carried by the IO SI M.P. Saini in his absence.
(vi) PW6, lady Ct. Rekha, deposed in her examination in chief that on 06.01.210, she was posted at PS Chanakaya Puri, Delhi. On that day on receipt of DD No. 27A she went to control Room of Ashoka Hotel. There accused Aynur Gylychammedova @ Alisha was apprehended. Accused could not produce traveling documents and her passport on inquiry. On the search of the accused photocopy of passport, traveling documents were recovered from her possession vide memo Ex. PW 6/A bearing her signature at point A. One Samsung mobile phone, one hand purse, Rs. 78 and one US Dollar were also recovered from her possession during personal search. On inquiry State Vs Aynur Gylychmommedova FIR NO.: 05/10 POLICE STATION: CHANAKAYA PURI U/S: 14 of Foreigner's Act 6 of 10 accused disclosed that she was residing at Dwarka, Sector17, Delhi. She was taken to Dwarka but she could not identify her residence. Thereafter, she was taken to Turkmanistan Embassy, Chanakaya Administrative Officer Ms. Maral and she told that she is Turkmanistan Citizen. Accused was arrested vide memo Ex. PW 6/B bearing her signature at point A. The witness identified the accused present in court.
In her crossexamination by Sh. Vishal Chadha, Legal Aid Counsel the witness deposed that she reached the hotel alone at about 05.30 AM and she was not accompanied by anyone. When she reached the hotel, SI M.P. Saini, Ct. Om Prakash and accused were present. There was no quarrel of accused with anyone in her presence. She asked the accused regarding her identification but she could not produce anything except a photocopy of her passport. The Administrative officer of Turkmaninstan Embassy only informed them that accused was a citizen of Turkmanistan but she did not tell them whether she was having valid visa or not. They had no information whether accused has valid visa or not. She could not remember whether any witness has signed the personal search of the accused.
The witness denied the suggestion given by Sh. Vishal Chadha that no personal search of accused was carried out and nothing was recovered from her possession. She further denied that she is deposing falsely. She also denied that accused was manhandled and assaulted by the people present in the lobby of the hotel to which she objected and therefore, she was falsely implicated in the present case.
(vii) PW8, SI, M.P. Saini deposed that on 06.01.2010 he was posted at PS Chankya Puri. He further deposed despite being asked by him the accused was unable to produce her travel documents and passport. The lady Ct. Rekha searched out her purse State Vs Aynur Gylychmommedova FIR NO.: 05/10 POLICE STATION: CHANAKAYA PURI U/S: 14 of Foreigner's Act 7 of 10 from which photocopy of a passport in her name was recovered. She disclosed her local address as Sector 17, IIIrd floor, Dwarka, however, she was unable to give the name of the apartment. This witness further deposed that thereafter the accused was taken to Dwarka where despite roaming in the area she could not disclose as to where apartment was situated. He further deposed that they went to Turkmanistan Embassy where he enquired Ms. Maral, who was Administrative Officer and on inquiry through the photocopy of the passport of accused, she confirmed that the accused is a citizen of Turkmanistan and she further assured that she will give her report in writing in this regard after due verification. Thereafter they came back to the PS Chanakaya Puri alongwith the accused. He sent a request for the confirmation of arrival of the accused in India to FRRO where on inquiry it was disclosed that she arrived at Delhi on 14.06.2008 through Flight No. T5515 at Delhi Airport and there was no entry regarding her departure from India. Thereafter he prepared the rukka Ex. 8/A bearing his signature at point B and got the FIR registered through Duty Officer. Thereafter, he arrested the accused vide arrest memo Ex. PW 6/B bearing his signature at point C and she was got personally searched through lady Ct. Rekha vide personal search memo Ex. 6/A bearing his signature at point B. He gave the intimation regarding arrest of the accused to Ministry of External Affairs at Tilak Marg, Delhi. The IO further deposed that he obtained the report from the FRRO and also the disembarkation card through which it was revealed that the date of expiry of the India Visa of the accused was 27.06.2008 and she was residing in India illegally.
In his cross examination, PW 8 deposed that he has received the information of the present case in the form of DD Entry from control room, Ashoka Hotel. The said control room is operated by the security staff of Ashoka Hotel. He received a complaint of quarrel in security control room of Ashoka Hotel. He received this information at about 05.30 AM. He alongwith Ct. Om Prakash reached on State Vs Aynur Gylychmommedova FIR NO.: 05/10 POLICE STATION: CHANAKAYA PURI U/S: 14 of Foreigner's Act 8 of 10 motorcycle in Hotel, Security Room. It took him around 10 minutes to reach on motorcycle to the spot. On arrival one foreign girl was found abusing the security staff of Ashoka Hotel comprising of 3 or 4 male persons. The foreign girl namely Aynur @ Alisa was under the influence of liquor. On inquiring her, she refused to tell her name, address and nationality. On this he called a lady Ct. namely Rekha from PS Chanakaya Puri to the spot. On search by lady Ct. Rakha, a photocopy of her passport was recovered through which he came to know her name, nationality. From inquiry from the office of FRRO, R.K. Puram, he came to know that she arrived in India on Indian Visa and on the same passport on 14.06.2008 and the visa expired on 27.06.2008. For confirming her nationality he took her alongwith lady Ct. Rekha to Turkmenistan Embassy as Turkmenistan was mentioned in the photocopy of her passport, where he came to know from the staff of that Embassy that she is the citizen of Turkmenistan.
5. No other PW was examined by the Prosecution. PE was hence closed.
6. Thereafter the accused was examined under 313 Cr. P.C. read with section 281 Cr. P.C. Wherein the accused submitted that all the allegations leveled against her were correct and she also declined to lead DE.
7. Thereafter, Final Arguments were heard on 07.06.2011, however, on request of another Counsel Mr. M.M. Khan, the matter again was posted for today for final arguments / order. Final Arguments were heard again.
8. I have gone through the record. All the PWs examined by the prosecution are consistent.
State Vs Aynur Gylychmommedova FIR NO.: 05/10 POLICE STATION: CHANAKAYA PURI U/S: 14 of Foreigner's Act 9 of 10
9. The prosecution has also produced on record a letter dated 27.01.2010 received from the FRRO therein giving the details of arrival card pertaining to the accused alongwith photocopy of a Visa pertaining to the accused showing the date of expiry as 27.06.2008. The date of arrival or the expiry of the Visa has nowhere been disputed on behalf of the accused. In her statement u/s 313/281 Cr. PC the accused has admitted that on 06.01.2010 she was present in India without any valid passport and Visa.
10. In view of the evidence led by the prosecution I am satisfied that the prosecution has proved its case beyond reasonable doubts. The accused, hence, stands convicted for the offense under section 14 of the Foreigners Acts.
Put up the case for arguments on sentence at 04.00 PM.
(ANNOUNCED IN THE OPEN SUDESH KUMAR COURT ON 08th June, 2011 ) METROPOLITAN MAGISTRATE This Judgment contains 10 pages NEW DELHI DISTRICT and each paper is signed by me. PATIALA HOUSE COURTS, DELHI State Vs Aynur Gylychmommedova FIR NO.: 05/10 POLICE STATION: CHANAKAYA PURI U/S: 14 of Foreigner's Act 10 of 10