Bangalore District Court
State By vs Naim S/O.Malak on 23 April, 2019
IN THE COURT OF THE X ADDL.C.M.M.
MAYO HALL UNIT, AT BENGALURU
Dated: This the 23rd day of April 2019
PRESENT: Sri.NAGESH MURTHY.B.K
B.A., LL.M.,
X Addl. Chief Metropolitan Magistrate,
Bengaluru City.
C.C.No.52044/2018
Complainant - State by, Police Inspector
Halasur Police Station
/vs/
Accused Naim S/o.Malak, 22 yrs. No.14, I
Floor, Sadashiva Mudaliyar Road,
Halasur, Bengaluru
JUDGMENT
1. The P.I of Halasur police station has filed this chargesheet against the accused for the offences punishable u/S. 6 r/w.7 of Registration of Foreigners Act 1939, Section 14 of Foreigners Act 1946, Section 12 of Passport Act and u/S.471, 468 and 420 of IPC 353, 504 of IPC.
2. It is alleged by the prosecution that the accused being the citizen of Bangla Desh about 17 years back along with your father Malak and mother by name Najma with the help of local Agent without any Passport came to India and stayed in various places and 2 CC No.52044/2018 since last 4 years stayed in Bengaluru at No.14, I Floor, Sadashiva Mudaliyar Road, Halasur, Bengaluru and by representing himself as Indian Citizen obtained Indian Passport bearing No.P 9026911 and by producing forged documents got Aadhar card, opened account at Syndicate Bank and obtained Ration Card and used the said documents as genuine document for the purpose of obtaining Government facilities and cheated the Government by using forged documents and thereby committed the offences punishable and thereby committed the alleged offences.
3. On the basis of the complaint filed by complainant, a case was registered in Halasur P.S., Cr.No.476/2015 and FIR was submitted to the court. Panchanama of scene of offence was conducted in presence of panchas. Statement of witnesses were recorded. On completion of investigation chargesheet has been filed against the accused for the alleged offences.
4. Cognizance of offences was taken and summons was issued to the accused. Accused has appeared before the court through his counsel and has been released on bail. Copies of chargesheet were furnished to accused u/S.207 of Cr.P.C. After hearing, charge was 3 CC No.52044/2018 framed against the accused for the alleged offences and accused has pleaded not guilty and claimed to be tried.
5. The prosecution in support of its case has examined 12 witnesses as PWs.1 to 12 and got marked 26 documents as Exs.P1 to P26. Statement of accused u/S.313 of Cr.P.C. was recorded and the accused has denied the circumstances incriminating him in the evidence.
6. Heard the arguments of Sr.APP appearing for the state and the counsel for accused. The learned counsel for the accused has also submitted his written arguments. Perused the same and the materials on record.
7. The points for consideration is:
1. Whether the prosecution proves beyond doubt that the accused being the citizen of Bangla Desh about 17 years back along with your father Malak and mother by name Najma with the help of local Agent without any Passport came to India and stayed in various places and since last 4 years stayed in Bengaluru at No.14, I Floor, Sadashiva Mudaliyar Road, Halasur, Bengaluru and by representing himself as Indian Citizen obtained Indian Passport bearing No.P 9026911 and by producing forged documents got Aadhar card, opened account at Syndicate Bank and obtained Ration Card and used the said documents as genuine document for the purpose of obtaining Government facilities and cheated the Government by using forged documents and thereby committed 4 CC No.52044/2018 the alleged offences punishable u/S.6 r/w.7 of Registration of Foreigners Act 1939, u/S.14 of the Foreigners Act 1946, Section 12 of the Passport Act and under Section 468, 471 and 420 of IPC?
2. What order?
8. My answer on the above points:
Point No.1 - Affirmative, Point No.2 - As per final order, for the following;
REASONS
9. POINT NO.1:
The prosecution in support of its case has examined twelve witnesses. PW.1 Chandra Kumar and PW.3 Sandeep Kumar are the witnesses to the seizure mahazar deposed that on 15/12/2017 between 12.30 to 1.30 PM police conducted mahazar near Murphy Town and seized voter ID card, Passport at House No.14 and they have identified true copy of the Voter of accused, true copy of Aadhar Card, true copy of the PAN card, true copy of the Syndicate Bank Passport, true copy of Passport by name Nazma and true copy of Aadhar card by name Nazma, true copy of the self declaration of Nazma and true copy of the Ration Card standing in the name of Malak. Seizure mahazar marked at Ex.P2 and seized above said 5 CC No.52044/2018 documents marked at Exs.P2 to P9 and they have identified the accused through V.C. before the court.
10. PW.2 Vimala.J is the Senior Superintendent of Regional Passport Office deposed that accused applied for Passport and submitted documents like PAN card, Aadhar card to show his birth proof and residential proof and after receiving the police verification report they have issued Passport to the accused and on 14/11/2017 they had received a letter from the Chief Immigration Officer, Haridaspur, West Bengal stating that Mr.Malak S/o.Fozlu infiltrated to India in a clandestine manner and he is a Bangladesh citizen and subsequent to receiving of said letter they had issued a show cause notice to accused and he has not given any response and after receiving letter from the Chief Immigration Officer they came to know that accused obtained Passport by submitting fabricated and fake documents and accused has written in the application that he is the citizen of India by birth and has given birth place as West Bengal and by giving false information obtained Passport and cheated Government and fabricated fake documents and produced in their office and in that regard she has lodged complaint before Halasur police. Said complaint is marked at Ex.10, the copy of the 6 CC No.52044/2018 Memorandum by the Chief Immigration Officer is marked at Ex.P11 and Show-cause notice marked at Ex.P12 and she has identified the accused through VC and subsequently she checked name based index relating to the accused in the computer and found that accused has obtained Passport by misrepresenting as Indian and thereafter she summoned him and told him to bring original Passport but he appeared before her without bringing original Passport and he had brought only copy of the Passport and thereafter on enquiry accused told that he was born in Bangladesh and he has obtained Passport through an Agent and thereafter she lodged complaint. The letter written by the accused to Regional Passport Authority marked at Ex.P24.
12. PW.4 Preetha is the neighbouring shop owner of the accused deposed that she is running Varalakshmi Tiffin Centre and accused also running Tea shop beside her hotel and on 18/12/2017 the police came near his hotel and told that accused are the citizens of Bangladesh and he has created fake documents like Aadhar Card, voter ID card etc. and she has identified the accused through VC.
13. PW.5 Thippeswamy is the HC deposed on 15/12/2017 he himself and CW.7 were deputed by the I.O to nab accused, 7 CC No.52044/2018 accordingly they nabbed the accused and produced the accused before the I.O.
14. PW.6 Manikyam is the resident of Halasur deposed that one Vinod who is his neighbour during the year 2016 introduced the father of accused by name Malak and requested for shop on rental basis and the said Malak shown his election ID card, on that basis he has given his shop on rental basis and thereafter he came to know that accused is not an Indian citizen and he is the citizen of Bangladesh.
15. PW.7 Inayathullah who is the labour of welding shop in his evidence deposed that about 2 years back, father of accused by name Malak was working along with him in a Iron shop and thereafter he left the job and started to run a Tea shop and thereafter he came to know through police that accused is not Indian citizen and he is the citizen of Bangladesh illegally staying in India.
16. PW.8 Ramachandrappa is the Asst. Revenue Officer, BBMP deposed that he is working as Asst. Electoral Registration Officer. On 10/1/2018 at the request of police verified Election Card of accused and the accused had given declaration that he was residing at Bellandur for last 5 years and their Booth verification officer, verified the documents of accused like PAN Card, rental agreement, 8 CC No.52044/2018 visited the spot and found that accused was not residing in the address at Bellandur and they have obtained Form No.7 from the owner of the building to remove the name of accused from voter list and accused has given false declaration and the voter ID card of accused marked at Ex.P14, Form No.6 marked as Exs.P15 and rental agreement produced at marked at Ex.P16 and when he verified Form No.6 and on verification of rental agreement, he came to know that declaration made by accused is false one and thereafter he came to know through police that accused is not an Indian citizen and he is the citizen of Bangladesh.
18. PW.9 Anwar Khan PSI in his evidence deposed that on 14/12/2017 when he was working as SHO received complaint and Memorandum from CW.1 and registered the same in Cr.No.476/2017 and sent FIR to the court and CWs.6 and 7 have produced the accused before him and he has arrested him and recorded voluntary statement of accused and as per his voluntary statement seized voter ID card, Aadhar card, PAN card, Syndicate Bank Pass Book, Ration Card, Voter card in the name of Malak and Najma and received report from Tahsildhar, South Division and thereafter handed over further investigation to CW.12.
9 CC No.52044/2018
19. PW.10 Subramanya is the P.I. deposed that on 8/2/2018 he took up further investigation, verified documents and received report from the Chief Election Officer on 22/3/2018 which is marked at Ex.P21 and on 14/9/2018 he sent requisition to Kaveri Consultancy to produce documents submitted by accused to obtain PAN card and thereafter by obtaining permission of the court, filed additional chargesheet and he has collected undertaking letter written by the accused from the Complainant and thereafter recorded the statement of CW.9 and submitted chargesheet as well as additional chargesheet before the court.
20. PW.11 Rache Gowda is the Sheristedar of Food and Civil supplies, Bengaluru South Taluk and as per the requisition of the I.O. given information relating to applying for Ration Card through Online by father of accused and on the basis of electricity bill, the accused obtained Ration Card from their Department and subsequently the Government has issued Circular to attach Aadhar card to the Ration Card, accordingly the father of the accused produced Aadhar card and thereafter they cancelled Ration Card of accused on 4/7/2017 and after receiving summons from I.O. came to know that accused is not a Indian citizen and he is the citizen of Bangladesh, stayed illegally by 10 CC No.52044/2018 creating false documents and he identified Ration Card marked at Ex.P9.
21. PW.12 D.N.Nayak is the Senior consultant of CEO deposed that on 4/1/2018 PSI of Halasur police station has sent a letter regarding taking into custody of Bangladesh citizen by name Nahim and Malak and taken them to police custody and sent photocopies of voter ID card, requesting CEO office to verify authenticity and validity and genuineness of voter ID card and he has submitted report to the PSI on 15/3/2018 stating that entries of the Election ID card not found to be valid and Electoral roll are not valid and he has submitted report marked at Ex.P21.
22. All PWs.1 to 12 have supported the case of the prosecution. During the course of cross examination of PW.1 Chandra Kumar and PW.3 Sandeep Kumar, it has been elicited that no prior notice was given to them by the police before calling them to mahazar. During the course of cross examination of PW.2 Vimala who is the complainant it is elicited that an official letter has to be issued to the Passport holder and the accused has not produced his original Passport, she has issued a letter dated 27/11/2017 and in the said letter she has not mentioned appearance of accused before her for 11 CC No.52044/2018 production of his original Passport in her office. During the course of cross examination of PW.5 who is the Head Constable who has nabbed the accused elicited that there was no written direction given by the I.O. to apprehend the accused. During the course of cross examination of PW.6 who is the neighbour it is elicited that since last 5 years accused is residing in their house and shop as tenant, he himself and father of accused entered into yearly agreement and since 2016 he has not renewed the rental agreement. During the course of cross examination of PW.8 Ramachandrappa, Asst. Electro Registration Officer, elicited that he has not produced the original Form No.7 and it is in his custody and he has no impediment to produce the same before the court and he could produce the same. During the course of cross examination of PW.9 Anwar Khan it is elicited that the voluntary statement of accused recorded by him is in Kannada language. During the course of cross examination of PW.11 Rache Gowda, Sheristedar, Department of Food and Civil Supplies it is elicited that before issuing Ration Card, Food Inspector visits the spot and verify the presence of Applicants of Ration Card, on 4/7/2017 they have cancelled the Ration Card of the father of accused and since 2013 till 2017 the accused was using the Ration Card. 12 CC No.52044/2018 During the course of cross examination of PW.12 D.N.Naik, Senior Consultant, CEO, Voter ID Authority it is elicited that only after obtaining some residential proof they will issue Election ID Card.
23. The charge has been framed against the accused by alleging that accused and his parents who are citizen of Bangladesh infiltrated to India about 17 years back and stayed in various places in India and since last 4 years accused stayed in Bengaluru and obtained Indian Passport bearing No.P9026911 by producing forged documents and got Aadhar Card, opened Bank Account and obtained Ration Card and used said documents as genuine documents for the purpose of obtaining government facilities and being the Bangladesh Citizen cheated the Government by using forged documents. In order to prove the case of the prosecution, prosecution relied on Ex.P11 which is the Memorandum issued by Chief Immigration Officer and on that basis PW.2 has lodged complaint marked at Ex.P10. On perusal of the same accused along with his parents infiltrated to India in a clandestine manner and stayed at various places in India and also stayed in Bengaluru and relied on the documents marked at Ex.P21 which is the letter written by the Chief Election Officer and Ex.P22 is the report relating to cancellation of Ration Card. Ex.P24 is the 13 CC No.52044/2018 explanation given by accused to Passport wherein he has confessed relating to infiltrating to India being the Bangladesh citizen and staying illegally in India. Ex.P25 is the Form no.7 wherein there is mention of conducting of spot inspection and accused reported to have not residing in the address mentioned in Form No.7. In this case the defence taken by the accused is that he is an Indian citizen not Bangladesh citizen and when such question arises the burden of proof lies upon such person to claim that he is not a foreigner. In this regard it is relevant to apply Section 9 of the Foreigners Act which reads as follows: "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 of a particular class or description, the onus of 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, 1972, lie upon such person." Thus on perusal of the above said section 9 of the Foreigners Act, the burden of proof lies on the accused that he is an Indian citizen and to discharge the said burden, the accused has not placed any documents and nothing is elicited from the mouth of 14 CC No.52044/2018 PWs.1 to 12 to believe that he is the citizen of India and nothing is elicited in the cross examination of PWs.1 to 12 that they are deposing falsely before the court to implicate the accused in this case. Thus there is nothing on record to disbelieve the version of prosecution. Thus it is clear that accused is not the citizen of India and he is the citizen of Bangladesh and he being citizen of Bangladesh by giving false information and forging the documents obtained documents like Aadhar Card, opening of Bank Account, obtained Ration Card, PAN Card and with the help of said documents also obtained Indian Passport bearing No. P9026911. In view of the above discussion, I hold that prosecution proved the guilt of the accused beyond all reasonable doubt for the alleged offences punishable u/S.14 of the Foreigners Act 1946, Section 12 of the Passport Act and under Section 468, 471 and 420 of IPC. Accordingly, I answer Point No.1 in the Affirmative.
24. POINT NO.2:
For the afore said reasons, I pass the following;
ORDER Acting u/S.248(2) of Cr.P.C. the accused is found guilty of the offences punishable u/S. 14 of the Foreigners Act 1946, Section 15 CC No.52044/2018 12 of the Passport Act and under Section 468, 471 and 420 of IPC.
For hearing on sentence.
(Dictated to the Steno, transcribed by him, same was corrected by me on computer and then pronounced in open court on this the 23rd day of April 2019).
(NAGESH MURTHY.B.K) X A.C.M.M., BENGALURU ORDERS ON SENTENCE Heard arguments on quantum of sentence. The learned Sr.APP submitted that prosecution proved the guilt of the accused beyond all reasonable doubt and hence accused be sentenced to full extent as prescribed under law. On the other hand the counsel for the accused submitted that accused has not committed the offences, he is a citizen of India and accused is very young and he be released by applying the provision under the P.O.Act. In this case the accused being the citizen of Bangladesh infiltrated into India in a clandestine manner and stayed illegally in India and also obtained Passport, election ID card, Aadhar Card and PAN card by furnishing false information and forging documents. Thus he is not entitled for the benefit under P.O.Act. Hence, by considering the facts and circumstances of the case, accused has to be sentenced as follows. Accordingly, I pass the following;
16 CC No.52044/2018
ORDER The accused is convicted for the offence punishable u/S.14 of the Foreigners Act 1947 and sentenced to undergo S.I. for 3 (three) years and shall pay fine pay fine of Rs.5,000/- (Rs.Five Thousand only). In default to pay fine amount he shall undergo further S.I. for 2 (two) months.
Secondly, the accused is convicted for the offence punishable u/S.12 of the Passport Act and sentenced to undergo S.I. for 2 (two) years.
Thirdly, the accused is convicted for the offence punishable u/S.468 of IPC and sentenced to undergo S.I. for 3 (three) years and shall pay fine pay fine of Rs.5,000/- (Rs.Five Thousand only). In default to pay fine amount he shall undergo further S.I. for 2 (two) months.
Fourthly, the accused is convicted for the offence punishable u/S.471 of IPC and sentenced to undergo S.I. for 2 (two) years and shall pay fine pay fine of Rs.5,000/- (Rs.Five Thousand only). In default to pay fine amount he shall undergo further S.I. for 2 (two) months, and .
Lastly, the accused is convicted for the offence punishable u/S.420 of IPC and sentenced to undergo S.I. for 3 (three) years and shall pay fine pay fine of Rs.5,000/- (Rs.Five Thousand only). In default to pay fine amount he shall undergo further S.I. for 2 (two) months.
17 CC No.52044/2018
All the above sentences shall run concurrently. Accused is in JC from 15/12/2017 i.e., One year 4 months and 8 days. Thus acting u /S.428 of Cr.P.C. accused is entitled for the benefit of setoff for the period already undergone in JC and shall undergo remaining punishment as per the order.
Office to supply the copy of this Judgment to accused free of cost.
After serving the above sentence by accused, he being Bangladesh citizen shall be sent to Bangladesh. Hence, the State shall take necessary steps and accused shall be transmitted to his native place Bangladesh after serving the above sentence as per law.
Office to issue intimation to Jail Authorities accordingly. (Dictated to the Steno, transcribed by him, same was corrected by me on computer and then pronounced in open court on this the 23rd day of April 2019).
(NAGESH MURTHY.B.K)
X A.C.M.M., BENGALURU
18 CC No.52044/2018
ANNEXURE
List of witnesses examined
Prosecution Defence
PW.1 Chandra Kumar. Nil
PW.2 Smt.Vimala.J
PW.3 Sandeep Kumar.
PW.4 Preetha.
PW.5 Thippeswamy.
PW.6 Manikyam.
PW.7 Inyathulla.
PW.8 Ramachandrappa .L.N
PW.9 Anwar Khan.
PW.10 Subramanya.
PW.11 Rache Gowda.
PW.12 D.N.Naik.
Exhibits Marked
Ex.P1 True copy of Mahazar.
Ex.P1(a)Signature of PW.1
Ex.P1(b)Signature of PW.3.
Ex.P1(c)Signature of PW.9.
Ex.P2 True copy of voter ID.
Ex.P2(a)Signature of PW.9.
Ex.P3 True copy of Aadhar Card.
Ex.P3(a)Signature of PW.9.
Ex.P4 True copy of PAN card.
Ex.P4(a)Signature of PW.9.
Ex.P5 True copy of Passbook of Syndicate Bank Ex.P5(a)Signature of PW.9.
Ex.P6 True copy of Passport of Nazma Ex.P6(a)Signature of PW.9.
Ex.P7 True copy of Aadhar card of Nazma Ex.P7(a)Signature of PW.9.
Ex.P8 True copy of Self Declaration of Nazma Ex.P8(a)Signature of PW.9.
Ex.P9 True copy of Ration Card of Malak Ex.P9(a)Signature of PW.9.
Ex.P10 Complaint Ex.P10(a)Signature of PW.2.
19 CC No.52044/2018Ex.P10(b)Signature of PW.9.
Ex.P11 Memorandum Ex.P12 Notice copy.
Ex.P13 Report given by PW.8.
Ex.P14 True copy of voter ID.
Ex.P15 Form No.6.
Ex.P16 True copy of Rental Agreement.
Ex.P17 FIR.
Ex.P17(a)Signature of PW.9 Ex.P18 Requisition to Election ID.
Ex.P19 Requisition to Aadhar Card.
Ex.P20 Requisition to Ration Card.
Ex.P21 Letter dated 22/3/18 of Chief Election Officer.
Ex.P21(a)Signature of PW.10.
Ex.P21(b)Signature of PW.12.
Ex.P22 Report dated 24/9/2018 from Tahsildar. Ex.P23 Covering letter.
Ex.P23(a) Signature of PW.2.
Ex.P24 Undertaking letter Ex.P24(a) Signature of PW.2.
Ex.P24(b) Signature of accused.
Ex.P25 True copy of Form No.7 Ex.P25(a) Signature of PW.10.
Ex.P26 Passport office Token No.S7.
Material Objects got marked
-Nil-
X A.C.M.M., Bengaluru.
20 CC No.52044/2018