Calcutta High Court (Appellete Side)
Sanjay Sarkar vs The State Of West Bengal on 26 April, 2024
IN THE HIGH COURT AT CALCUTTA
(Criminal Appellate Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRA 594 of 2017
Sanjay Sarkar
Vs
The State of West Bengal
For the Appellant : Mr. Aniruddha Bhattacharyya,
Ms. Rai Das,
Ms. Anushka Bose.
For the State : Mr. Debashis Roy, Ld. P.P.
Mr. Saryati Datta.
Hearing concluded on : 22.03.2024
Judgment on : 26.04.2024
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Shampa Dutt (Paul), J.:
The Appeal:-
1. The appeal has been preferred against the Judgment and Order dated 10th day of August, 2017 passed by the Additional District and Sessions Judge, Gangarampur at Buniadpur, Dakshin Dinajpur in Sessions Case No. 67(Sept.)/13 (Regd. No. 167/14) S.T. No. 62/2015 arising out of Banshihari, P.S. Case No. 73/13 dated 21.05.2013 under Sections 14(A)(B)/14C of the Foreigners Act, whereby, convicting the appellant namely Sanjay Sarkar under Section 14C of the Foreigners Act, 1946 and sentencing him to undergo R.I. for 2 years and to pay fine of Rs. 10,000/- in default of payment of fine an additional period of 2 months of S.I. The Prosecution:-
2. The prosecution case in a nutshell is that:-
"On 21.05.2013, ASI Partha Sarathi Saha alongwith force were on mobile duty at Buniadpur more in Govt. Vehicle No. WB-62-5646 driven by Homeguard 007, Rajat Basak. At 12.25 hours he got an information from P.S. Duty Officer, ASI Jayanta Kumar Jha, who received a secret source information that a trecker bearing Registration no. WB-61- 7450 was carrying some Bangladeshis from border of Hili Area to Kathihar side. ASI Jayanta Kumar Jha also informed ASI Partha Sarathi Saha to intercept the trecker. Subsequently he called ASI Ratan Sarkar and Lady Homeguard 402, Jayanti Dey, who were in Buniadpur College for examination duty and ASI Md. Aminul Haque who was in Buniadpur for bank visit duty at Buniadpur Bus Stand, within a few minutes, they came and joined with the 3 party of Partha Sarathi Saha at around 12.45 hours. On 21.05.2013 at about 13.10 hours said trecker was found proceeding from Banshihari side to Malda Side in high speed. The said trecker was intercepted at Kushkari village under Banshihari Police Station. Seeing the police party the driver of the trecker fled away through the open field leaving his trecker on the road. The police party found 14 adult male and female persons with their kids in the trecker who were less than 07 years and some of them were within 12 years of age. On interrogation they came to know that the apprehended male and female persons are the inhabitants of Kakshabajar and Bandarbon District of Bangladesh. They are daily labourers and move here and there with their kids for earning purpose. They stated that one tout Raju assured them for getting work at Katihar and on the last night they crossed Indo-Bangladesh Border and availed trecker in the morning for reaching Katihar without any valid documents. The adult members confessed their guilt and admitted themselves as Bangladeshi. During search seized birth certificate showing Bangladeshi nationals and seized under seizure list. Total 11 kids were found in the lap of 14 adult persons. There were 06 kids between 07-12 years who had no understanding of the offence. The trecker was seized under seizure list. 14 accused persons were arrested and their children were taken into safe custody. Money and 2 mobile found from their possession were also seized. On the basis of the written complaint lodged by ASI Partha Sarathi Saha, Banshihari P.S. Case No. 73/13 dated 21.05.2013 under Sections 14(A)(b)/14C Foreigners Act, 1946 was registered for investigation against 14 accused persons."
3. After completion of investigation, the investigating officer submitted charge-sheet against 15 accused persons including Sanjay Sarkar and 14 named FIR Bangladeshi nationals namely Mojammel Hossain, Nurul Islam, Nur Kalima, Yasmin, Mahammad Ali, Jannatara, Beula Khatoon, Rukia Begum, Md. Ayub, Mamtaj Begum, Md. Karim, 4 Fatema Khatoon, Marjina Akhtar and Samsunnehar under Sections 14A(b)/14C of the Foreigners Act being C.S. No. 106/13 dated 30.06.2013. On 15.09.2015 after hearing the parties and considering materials on record charge was framed under Section 14C of Foreigners Act against accused Sanjay Sarkar, who pleaded not guilty and claimed to be tried. At the time of framing of charge, all 14 Bangladeshi nationals charged under Section 14A(b) of Foreigners Act, pleaded guilty and were convicted and sentenced on 15.09.2015 and 03.09.2016 under Section 229 of Cr.P.C. Trial commenced only for accused Sanjay Sarkar, appellant herein under Section 14C of the Foreigners Act being Sessions Case No. 67(Sept.)/13 (Regd. No. 167/14) S.T. No. 62/2015.
4. The prosecution has examined as many as 09 (nine) witnesses, while the defence side examined none.
5. On completion of trial, the Appellant was convicted and sentenced as above.
Evidence:-
6. Prosecution witness no. 1, 2, 4, are part of raiding team.
7. P.W. 5 (hostile) and P.W. 6, 7 are seizure witnesses.
8. P.W. 3, is also part of the raiding team. He has corroborated the case of the Complainant. He has identified the Appellant in Court as the driver of the offending vehicle.
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9. P.W. 8 is an important independent witness. He is the owner of the offending vehicle (WB 61/7450). He had admitted that the said vehicle (trecker) a commercial one had permit to ply from Balurghat to Hili. He has clearly deposed that on the date and time of offence, the Appellant was the driver of the said vehicle.
10. P.W. 10 is the Investigating Officer. Charge Sheet was submitted against 15 persons. He has seized the permit of the offending vehicle which stands in the name of P.W. 8.
11. The trial Court has omitted recording any witness as P.W. 9, which appears to be prima facie due to inadvertence.
12. Exhibit 1 series is the seizure list seizing the offending vehicle.
13. Exhibit 8 series is the Written Complaint.
14. Exhibit 6 is the seizure list seizing the driving licence of the Appellant. Analysis of Evidence:-
15. Out of the 15 accuseds 14 accused persons pleaded guilty of the charge under Section 14A(b) of the Foreigners Act. The Appellant pleaded 'Not Guilty' and was tried for charge under Section 14C of the Foreigners Act.
16. Section 14A(b) of the Foreigners Act, lays down:-
"14A. Penalty for entry in restricted areas, etc. --
Whoever. --
(a)......................................
(b)enters into or stays in any area in India without the valid documents required for such entry or for such stay, as the 6 case may be, under the provisions of any order made under this Act or any direction given in pursuance thereof, shall be punished with imprisonment for a term which shall not be less than two years, but may extend to eight years and shall also be liable to fine which shall not be less than ten thousand rupees but may extend to fifty thousand rupees;
and if he 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 by him."
17. Section 14C of the Foreigners Act, is as follows:-
"14C. Penalty for abetment.--Whoever abets any offence punishable under section 14 or section 14A or section 14B shall, if the act abetted is committed in consequence of the abetment, be punished with the punishment provided for the offence.
Explanation. --For the purposes of this section, --
(i) an act or offence is said to be committed in consequence of the abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the offence;
(ii) the expression "abetment" shall have the same meaning as assigned to it under Section 107 of the Indian Penal Code (45 of 1860)."
18. The evidence of P.W. 8, Basudeb Dutta, who is the owner of offending vehicle WB 61/7450, is that the vehicle has permit for the route from Balurghat to Hili.
19. The said vehicle had 14 Bangladeshi nationals travelling to India illegally. The vehicle was being driven by the Appellant, who also has a driver's licence.
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20. All the 14 adult persons were arrested at the spot with some minors (their children).
21. From the record it appears that ASI Partha Sarathi Saha is the complainant in this case.
22. P.W. 3, Ratan Saha, who allegedly accompanied the complainant has reiterated the contents of the written complaint.
23. The trial Judge has noted at page 5 of the Judgment that P.W. 9 Pankaj Tamang is a witness in Session Case No. 34/16 and the said deposition was sent to the respective record. It is stated that, it was due to in advertence that it was kept with the present case records. As such there is no P.W. 9 in this case.
24. Written Arguments have been filed by the both sides.
25. The Appellant has relied upon the ruling of the Supreme Court in Abinash Dixit vs The State of Madhya Pradesh, In Criminal Appeal No. 267 of 2022, decided on 22.02.2022, the Court held:-
"9. On the aspect of violation of Section 14-C, the requirement is that the Accused should have abetted the offences Under Sections 14, 14-A and 14-B of the Foreigners Act. Section 14-C reads:
14-C: Penalty for abetment. -- Whoever abets any offence punishable Under Section 14 or Section 14A or Section 14B shall, if the act abetted is committed in consequence of the abetment, be punished with the punishment provided for the offence.
10. The word 'abet' is an essential ingredient of Section 14-C, and has received judicial interpretation. 'Abet' means to aid, to encourage or countenance. An abetment of the offence occurs when a person instigates any person to do that offence or engages with another person(s) in doing 8 that thing. Mere passivity and insouciance will not tantamount to offence of abetment.
11. As noticed above, the two Chinese citizens had visited the site at the behest of and along with the employee of M/s. P.S. Enterprises, Adarsh Kumar Singh, who had brought them to the site. There is no indication or allegation that the Appellant was aware and had knowledge that the Chinese citizens had traveled on tourist visas. Prosecution has not been initiated against either Adarsh Kumar Singh or M/s. P.S. Enterprises. They are not co-accused. Further, the Chinese citizens were issued a Leave India Notice on 21.04.2019 through Adarsh Kumar Singh. In the absence of any material and evidence, the allegation of abetment against Appellant has no basis and foundation."
26. From the Written Complaint it appears that the complainant has noted as follows:-
"On interrogation it could be learnt that the above male & female are the inhabitants of Kaksabajar & Bandarbon District of Bangladesh. They are daily labour move here & there with their kids for earning. They came in the grip of one tout, who disclose himself as Raju and assured them for getting work at Kathihar at the rate of Rs.120/- per day. So on last night they crossed Indo- Bangladesh border and availed Trecker in the morning for proceeding their destination at Kathihar for getting the job. Without any valid Visa/Passport or any valid documents required for their entry and in staying in India."
27. But the complainant has not been examined in this case nor has the trial Judge stated the reasons for the complainant not being examined. There is absolutely no findings on the said non examination of the complainant, a vital witness to the prosecution.
28. From the written complaint it is clear that the person who allegedly abetted the offence under Section 14A of the Foreigners Act, is one 9 (tout) 'Raju'. There is no evidence to show that the Appellant is the said 'Raju'. Nor is there any evidence to show that the appellant abetted the offence under Section 14A of the Foreigners Act in any manner whatsoever.
29. The only evidence on record against the appellant is that he was the driver of the vehicle in which the foreigners were travelling illegally to India. It is on record that he was the driver of the vehicle owned by P.W.8. The Appellant also had as Driver's licence.
30. Whether the Appellant 'abetted' the offence as required to prove charge under Section 14C of the Foreigners Act has not been proved by the prosecution beyond reasonable doubt.
31. That the appellant was driving the vehicle in which the foreigners were travelling is proved, but the ingredient to prove 'Abetment' that is to aid, to encourage or countenance to abet the commission of offence as required under Section 14C of the Foreigners Act is clearly not proved.
32. CRA 594 of 2017 is allowed.
33. The Judgment and Order dated 10th day of August, 2017 passed by the Additional District and Sessions Judge, Gangarampur at Buniadpur, Dakshin Dinajpur in Sessions Case No. 67(Sept.)/13 (Regd. No. 167/14) S.T. No. 62/2015 arising out of Banshihari, P.S. Case No. 73/13 dated 21.05.2013 under Sections 14(A)(B)/14C of the Foreigners Act, whereby, convicting the appellant namely Sanjay Sarkar under Section 14C of the Foreigners Act, 1946 and sentencing 10 him to undergo R.I. for 2 years and to pay fine of Rs. 10,000/- in default of payment of fine an additional period of 2 months of S.I., is set aside.
34. The appellant Sanjay Sarkar, is hereby acquitted of the charge under Section 14C of the Foreigners Act and discharged from his Bail Bonds.
35. All connected applications, if any, stand disposed of.
36. Interim order, if any, stands vacated.
37. Copy of this judgment be sent to the learned Trial Court for necessary compliance.
38. Urgent certified website copy of this judgment, if applied for, be supplied expeditiously after complying with all, necessary legal formalities.
(Shampa Dutt (Paul), J.)