Bombay High Court
Ugudu Ogabonna vs The State Of Maharashtra on 4 January, 2018
Bench: A.M. Badar
202-APPEAL-271-2010-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.271 OF 2010
UGUDU OGABONNA )...APPELLANT
V/s.
STATE OF MAHARASHTRA )...RESPONDENT
Ms.Rohini Dandekar, Advocate for the Appellant.
Mr.S.V.Gavand, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 4th JANUARY 2018
ORAL JUDGMENT :
1 The appellant/accused by this appeal is challenging
the judgment and order dated 23 rd February 2010 passed by the
learned Special Judge under Narcotic Drugs and Psychotropic
Substances Act (NDPS Act), Greater Bombay, Mumbai, in NDPS
Special Case No.101 of 2008, so far as it relates to convicting him
of offences punishable under Sections 3(1)(2)(c)(e)(iii) read with
Section 14 of Foreigners Act, 1946, as well as under Section 3(1)
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(2)(a)(3)(4) of the Passport (Entry into India) Act, 1920, read
with Rules 3 and 6 of the Passport (Entry into India) Rules, 1950.
On these two counts, he has been sentenced to suffer simple
imprisonment for 3 years apart from payment of fine of
Rs.1,000/-, in default, to undergo further simple imprisonment for
3 months, and simple imprisonment for 3 months apart from
direction to pay fine of Rs.500/-, in default, to undergo simple
imprisonment for 1 month, respectively. He was, however,
acquitted of offences punishable under Sections 21 read with 8(c)
and 29 read with 8(c) of NDPS Act.
2 Heard Ms.Rohini Dandekar, the learned advocate
appearing for the appellant/accused. She vehemently argued that
even if the prosecution case is accepted as it is, then also, it is seen
from the evidence on record that there is no iota of evidence for
connecting the appellant/accused with the crime in question. She
further argued that the cause of action in the case in hand is
seizure of narcotic drug and entire evidence adduced by the
prosecution is in respect of the alleged possession of narcotic drug
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by the appellant/accused. There is no evidence regarding
violation of the provisions of Foreigners Act, 1946, the Passport
(Entry into India) Act, 1920, as well as Rules framed thereunder.
Therefore, in submission of the learned advocate appearing for the
appellant/accused, for want of evidence, the learned trial court
ought not to have convicted the appellant/accused.
3 The learned APP drew my attention to the evidence of
PW3 Ganesh Harpude, Police Sub-Inspector, Versova Police
Station, PW4 Mohd.Yusuf Usman Khapatwala - panch witness,
and that of PW5 Hemant Gosavi, Assistant Police Inspector,
Versova Police Station, who had investigated the crime in question
and argued that evidence of these three witnesses consistently
shows that the appellant/accused had entered into India without
any passport and visa and stayed in India in violation of express
provisions of law. Despite being asked for the passport and visa,
though the appellant/accused time and again insisted before the
trial court that he is going to produce valid passport, nothing was
placed on record by the appellant/accused. The learned APP
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further argued that in terms of provisions of Section 106 of the
Evidence Act, it was incumbent on the part of the
appellant/accused to produce valid passport and visa and as he
has failed to comply with the same, the learned trial court has
rightly convicted him of the alleged offence.
4 I have carefully considered the rival submissions and
also perused the record and proceedings including deposition of
witnesses as well as documentary evidence adduced by the
prosecution.
5 According to the prosecution case, the appellant/
accused is a Nigerian citizen. A secret information was received by
PW3 Ganesh Harpude, Police Sub-Inspector, Versova Police
Station, on 26th June 2008 to the effect that the
appellant/accused, who is a Nigerian citizen, is coming to Bon
Bon Junction for selling cocaine. The information was then
recorded in the Station Diary and was transmitted to immediate
superior official by PW3 Ganesh Harpude, Police Sub-Inspector,
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Versova Police Station. After following necessary formalities,
according to the prosecution case, panch witnesses were
summoned and trap teams were formed. Along with panchas, the
trap teams then went to Bon Bon Junction. At about 2.45 p.m. of
26th June 2008, the appellant/accused came from the Model Town
area towards Bon Bon Shoe Shop. After waiting for some time, as
his movements were found suspicious, he came to be apprehended
by the Police team.
6 It is case of the prosecution that after following
necessary provisions of law, the personal search of the
appellant/accused was taken and he was found to be in possession
of cocaine weighing 3 gms. The Police Officials made inquiriy
regarding passport and other documents from the
appellant/accused apart from his name and address. The
appellant/accused informed his name and further informed that
he is a resident of Nigeria and presently staying on the footpath in
front of Andheri Railway Station.
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7 The appellant/accused was taken in custody. The First
Information Report (FIR) came to be lodged. Necessary
investigation came to be followed and on completion of
investigation, the appellant/accused came to be charge-sheeted.
8 After filing of the charge-sheet, the prosecuting agency
filed an application Exhibit 4 before the learned Special Judge,
Mumbai, seeking permission to add necessary sections of the
Passport (Entry into India) Act, 1920, the Foreigners Act, 1946, as
well as relevant Rules. The same came to be allowed.
9 After hearing the parties, the learned Special Judge
had framed Charge for offences punishable under Sections 29
read with 8(c) of the NDPS Act Act, 1985, under Section 8(c) read
with 21 of the NDPS Act, 1985, as well as for offences punishable
under Section 3(1)(2)(c)(e)(iii) read with Section 14(a) of the
Foreigners Act, 1946, and Section 3(1)(2)(a)(3)(4) of the Passport
(Entry into India) Act, 1920, as well as under Rules 3 and 6 of the
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Passport (Entry into India) Rules, 1950. The appellant/accused
abjured guilt and claimed trial.
10 In order to bring home the guilt to the
appellant/accused, the prosecution has examined in all five
witnesses. PW1 Sanjay Prabhavale is Assistant Chemical Analyser.
PW2 Mahesh Sagade is a Police Constable, who carried muddemal
for chemical analysis. First Informant Ganesh Harpude, Police
Sub-Inspector, Versova Police Station, is examined as PW3. Panch
witness Mohd.Yusuf Usman Khapatwala is examined as PW4.
Investigating Officer Hemant Gosavi, Assistant Police Inspector,
Versova Police Station, is examined as PW5.
11 After hearing the parties, the learned Special Judge
came to the conclusion that the prosecution has failed to prove
that the appellant/accused was in possession of 3 gms of cocaine
for the purpose of selling it to the customer and that he was
holding possession of the said narcotic drug under conspiracy with
an unknown person. However, the learned Special Judge came to
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the conclusion that the appellant/accused was found to be in India
without a valid passport and visa and thereby he has contravened
provisions of Section 3(1)(2)(c)(e)(iii) read with Section 14 of the
Foreigners Act, 1946, as well as provisions of Section 3(1)(2)(a)
(3)(4) of Passport (Entry into India) Act, 1920, read with Rules 3
and 6 of the Passport (Entry into India) Rules, 1950. Accordingly,
he is convicted and sentenced as indicated in the opening
paragraph of this judgment.
12 Section 3 of the Foreigners Act, 1946, empowers the
Central Government to frame orders for prohibiting, regulating or
restricting the entry of foreigners into India or their departure
therefrom or their presence or continued presence in the Indian
territory. Such an order can prescribe that the foreigner shall not
remain in India or in any prescribed area therein and such a
foreigner shall comply with such condition as may be prescribed
or specified including the condition requiring him to furnish such
proof of his identity and to report such particulars to such
authority in such manner and at such time and place as may be
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prescribed or specified. In exercise of powers conferred by Section
3 of the Foreigners Act, 1946, the Central Government is pleased
to make the Foreigners Order 1948. Order 3 of the Foreigners
Order 1948 specifically provides that no foreigner shall enter into
Indian territory otherwise than at such port or other place of entry
on the borders of India as a Registration Officer having
jurisdiction at that port or place appointed in this behalf either for
foreigners generally or for any specified class or description of
foreigners or without the leave of the civil authority having
jurisdiction at such port or place. Thus, entry of foreigners into
India is regulated and such entry cannot be made otherwise than
the provisions of Order 3 of the Foreigners Order 1948. Order 7
deals with restriction of sojourn in India and it provides that the
foreigner entering into Indian territory shall obtain from the
Registration Officer having jurisdiction, a permit indicating the
period during which he is authorized to remain in India and also
indicating the place or places for stay in India, if any, specified in
the visa. In granting such permission, the Registration Officer
may restrict the stay of the foreigner to any of the places specified
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in the visa. Contravention of the provisions of Foreigners Act,
1946, as well as Foreigners Order 1948, is made punishable under
Section 14 of the Foreigners Act, 1946. Contravention of the
provisions of the said Act and the Order made thereunder is
punishable with imprisonment which may extend to 5 years apart
from imposition of fine.
13 Section 3 of the Passport (Entry into India) Act, 1920,
deals with powers to make rules by the Central Government. It
provides that the Central Government may make rules requiring
that person entering India shall be in possession of passports, and
for all matters ancillary or incidental to that purpose. Such rules
may contain provisions regarding prohibiting the entry into India
or any part thereof of any person, who has not in his possession a
passport issued to him. The rules can also provide that any
contravention thereof is punishable with imprisonment for a term
which may extend to 5 years or with fine. In exercise of powers
under Section 3 of the Passport (Entry into India) Act, 1920, the
Central Government has framed the Passport (Entry into India)
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Rules, 1950. Rule 3 of these Rules provides that no person
proceeding from any place outside India shall enter, or attempt to
enter, India by water, land or air, unless he is in possession of a
valid passport conforming to the conditions prescribed in Rule 5.
14 On the backdrop of these legal provisions, let us
scrutinize the evidence adduced by the prosecution.
PW3 Ganesh Harpude, Police Sub-Inspector of Versova
Police Station, who was the member of the raiding team has
categorically deposed that after apprehending the
appellant/accused, there was inquiry with him. The
appellant/accused gave his name as Ugudu Ogabonna, resident of
footpath at Andheri Railway Station. Upon being asked about his
passport, as per version of PW3 Ganesh Harpude, the
appellant/accused did not give any reply. He was only knowing
English language. This evidence virtually remained unchallenged,
and as such, there is no reason to disbelieve the same.
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15 PW4 Mohd.Yusuf Usman Khapatwala is a panch
witness who was also present on the spot when the
appellant/accused came to be arrested by police. Evidence of this
witness shows that Police Officers made inquiry from the
appellant/accused in respect of his passport, language known to
him as well as his address.
16 PW5 Hemant Gosavi, at the relevant time was working
as Assistant Police Inspector of Versova Police Station. He laid the
trap team which apprehended the appellant/accused. This witness
has deposed that after apprehending the appellant/accused,
inquiry was made from the appellant/accused. The
appellant/accused informed that he is a Nigerian citizen and was
residing at Andheri Railway Station on footpath. The
appellant/accused informed that he knew only English language.
Evidence of PW5 Hemant Gosavi, Assistant Police Inspector,
Versova Police Station, shows that on 17 th July 2008, this witness
has sent a letter to the Deputy Commissioner of Police, Passport
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Branch, to inform Nigerian Consulate that the appellant/accused
was found without possessing the passport with him. This witness
received a letter communicating him that the appellant/accused
be also charge-sheeted for violation of the provisions of Foreigners
Act, 1946, as well as Passport (Entry into India) Act, 1920, as well
as Rules framed thereunder.
17 The evidence adduced by the prosecution, as such,
shows that the appellant/accused, who is a Nigerian citizen, was
apprehended at Bon Bon Junction by the police team and at the
relevant time, he was neither in possession of visa nor the
passport. Perusal of the impugned judgment and order goes to
show that before the learned trial court, the appellant/accused
consistently claimed that he is in possession of a valid passport.
The learned trial court observed that sufficient opportunity was
given to the appellant/accused to furnish valid passport, but till
the date of delivery of judgment, the appellant/accused failed to
produce the passport or visa.
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18 The fact that whether the appellant/accused was in
possession of a valid passport or visa is a fact which was
exclusively within the knowledge of the appellant/accused. It is
seen from the evidence of prosecution witnesses that the
appellant/accused was found without having any valid passport or
visa to justify his presence in India, he being a Nigerian citizen.
The learned APP rightly relied on the judgment of the Hon'ble
Apex Court in the matter of Habib Ibrahim vs. State of
Rajasthan1 wherein, in paragraph 7 it is held thus :
"7 Prosecution evidence clearly establishes
that the appellant did not have passport to stay in
India. This fact is not disputed by the appellant. The
only plea to justify his presence was that he had
come to visit his wife and children. As rightly noted
by the courts below, the appellant had been issued a
transit visa that too for Nepal for a period of six
months. There was no valid document in possession
of the appellant to stay in India. The only plea to
justify his presence was that he had come to visit his
wife and children. That does not give any right to
him to stay illegally in India. As rightly noted by the
courts below, the appellant had been issued a transit
1 AIR 2009 SC (Supp) 472
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visa that too for Nepal for a period of six months.
There was no valid document in possession of the
appellant to stay in India. Therefore Section 3 read
with Section 14 of the Act have been rightly applied.
The conviction therefore cannot be faulted. So far as
the sentence is concerned, considering the large
number of infiltrators come to India without valid
document, there is need for imposing stricter
sentence. The reasons given by the appellant to
justify his presence in India have hardly any
substance. Appellant's feeble plea that he did not
know that he is required to be in possession of valid
document is without substance. Otherwise, he
would not have obtained any transit visa for Nepal."
19 The foregoing discussion makes it clear that the
appellant/accused being a Nigerian citizen entered India and
stayed in India without valid documents in his possession for stay
in India.
20 In the result, it cannot be said that the learned trial
court has committed any error in convicting the appellant/accused
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for alleged offences. The appeal, as such, is devoid of merits, and
therefore, the order :
ORDER
The Appeal is dismissed.
(A. M. BADAR, J.)
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