Ugwumsinachi Oniya vs The State Of Bihar
2021 Latest Caselaw 4932 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                       CRIMINAL REVISION No.213 of 2020
       Arising Out of PS. Case No.-103 Year-2019 Thana- RUNISAIDPUR District- Sitamarhi
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1. Ugwumsinachi Oniya, Son of Gabriel Oniya, Permanent resident of 20, Chalons Close Enugu NGWO, Enugu State, Nigeria.

2. Solomon Aliagwu, Son of Richard Aliagwu, Permanent resident 15 Ogbeini Street, Agbor, OB I Delta State, Nigeria.

... ... Petitioner/s Versus The State of Bihar

... ... Respondent/s ====================================================== Appearance :

     For the Petitioner/s    :        Mr.Abu Nasar, Advocate
     For the Respondent/s    :        Mr.B.N. Pandey, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL JUDGMENT Date : 08-10-2021 Re: I.A.No.1 of 2020

Limitation petition, bearing I.A. No.1 of 2020, has been

filed for condoning the delay of 33 days in filing the instant

revision application.

2. In view of cause being shown in the interlocutory

application praying for condonation and there being no opposition

from the learned A.P.P., I.A. No.1 of 2020 stands allowed. The

revision application is deemed to have been filed within time.

Re: Criminal Revision No.213 of 2020

This revision application is limited to the question of

legality of the sentence awarded by the court of A.C.J.M.-V,

Sitamarhi under the judgment and order dated 18.10.2019 in G.R. Patna High Court CR. REV. No.213 of 2020 dt.08-10-2021

No.1109 of 2019 arising out of Runnisaidpur P.S. Case No.103 of

2019. The learned court has convicted the petitioners for the

offence punishable under Section 14 of the Foreigners

(Amendment) Act, 2004 (hereinafter referred to as "the Act") and

sentenced to undergo simple imprisonment for three years, setting

off the period undergone by them prior to passing of the sentence

in judicial custody.

2. Since the petitioners have pleaded guilty, they have

not questioned or raised any issue in respect of the conviction.

3. According to the prosecution case, it is stated that

the informant was deputed as Executive Magistrate during the

election. On 14.03.2019 at 6:30 A.M., one Amar Jyoti Bus, bearing

registration No.BR 06PA7167, on way from Sitamarhi to Patna

was stopped at Runnisaidpur Police Station by the Driver of the

bus along with the passengers. The Driver intimated that two

foreign nationals (these petitioners) have boarded the bus for going

to Patna and he found their activities to be doubtful. Petitioners

were thus questioned by the informant along with police officials.

They have admitted to reach Sitamarhi through Siliguri in India

from Kakarbitha (Nepal). They have stated that they were going to

Patna. On search, they were found to be in possession of passport

issued on 13.11.2018 and valid up till 12.11.2023. In respect of Patna High Court CR. REV. No.213 of 2020 dt.08-10-2021

Petitioner Nos.1 and 2, a tourist visa for 15 and 30 days

respectively, was stamped on their passports. Petitioner Nos.1 and

2 have arrived in Nepal on 08.03.2019 and 11.03.2019

respectively. Their visa was to expire on 22.03.2019. It is further

the prosecution case that Indian, Nigerian, Canadian and American

currency was recovered from the petitioners. Five mobile sets with

SIM cards, voter card of the Federal Republic of Nigeria, clothes,

other articles of daily use, some CDs, tablet, including old passport

were found in their possession.

4. A seizure list was also prepared in presence of

independent witnesses. Chargesheet was submitted for the offence

under Section 14 of the Foreigners (Amendment) Act, 2004 and

investigation was kept pending for examination of the seized

articles and documents.

5. The Court of C.J.M., Sitamarhi took cognizance of

the offences under Sections 341, 323, 504 of the I.P.C. and Section

14 of the Foreigner (Amendment) Act, 2004 against the instant

petitioners.

6. The two petitioners on the same date filed an

application in the court of C.J.M., Sitamarhi pleading guilty to

contravention of Section 14 of the Act and confessing their crime.

They prayed that they want to go back to their country. The Patna High Court CR. REV. No.213 of 2020 dt.08-10-2021

petition was kept on record and was transferred to the court of

A.C.J.M. The record thereafter shuttled between the court of

Additional Chief Judicial Magistrate and Chief Judicial Magistrate

and when it was sent twice to the court of A.C.J.M., considering

the fact that the accused are languishing in jail and have pleaded

guilty, the A.C.J.M. passed the order on sentence. The court has

found the petitioners to be guilty of having contravened Section 14

of the Act knowingly and have been sentenced to undergo simple

imprisonment for three years, setting off the period already

undergone by them in judicial custody.

7. Learned counsel for the petitioners submits that the

revision is limited to the question of the correctness and legality of

the sentence. The court while awarding the sentence has taken into

consideration irrelevant factors as being aggravating factors to

award sentence of three years out of a maximum sentence of five

years prescribed, wherein no minimum sentence has been

prescribed. The petitioners have already undergone two years six

months in custody out of three years awarded by the trial court.

8. Learned counsel submits that the bona fides of the

petitioners is evident, and identity established from the fact that

they were carrying their passports and voter cards issued by the

Federal Republic of Nigeria. It is further submitted that no Patna High Court CR. REV. No.213 of 2020 dt.08-10-2021

dangerous article has been recovered from the petitioners.

Possession of the currency, mobile phones, clothes and articles of

use cannot be considered to be in any way offensive. The court

while passing order on the sentence has taken into consideration

the fact that the petitioners have contravened Section 14 of the Act

during election period. This fact, as per counsel for the petitioners,

is hardly relevant. The offence to which the petitioners have

admitted their guilt and for which they have been punished is

violation of Section 14 of the Act. The fact that they were illegally

within the Indian territory during election is not a relevant factor

while granting sentence under Section 14 of the Act and therefore

consideration of the same is wholly unwarranted.

9. Mr. B.N. Pandey, learned APP has appeared on behalf

of the State. He has submitted that for contravention of Section 14

of the Act, the prescribed punishment is upto five years. For

violation of the said provision, the petitioners have been convicted,

based on their own confession. The sentence of three years'

imprisonment as has been awarded by the trial court based on their

confession and admission of guilt, therefore the same does not

require any interference. However, the fact that the petitioners

have neither been proceeded against or found guilty of any offence

under the Representation of the People Act or on account of Patna High Court CR. REV. No.213 of 2020 dt.08-10-2021

possessing of any foreign currency, cannot be denied based on the

records.

10. On these points, there is also no confession of the

petitioners, as is apparent from the order of the trial court.

11. This Court would find force in the submission of

the petitioners' counsel. Sentence has been awarded only under

Section 14 of the Act. Petitioners have not been alleged or found to

be indulging in any offence under the Representation of the People

Act or any other offence under any other Act. They have also not

been alleged to be violating or tried for any offence in respect of

possession of any illegal article whatsoever.

12. Purely based on confession of their guilt of having

violated Section 14 of the Act, sentence has been awarded by the

trial court. The judgment, however, manifests consideration of the

fact that contravention is during election time and that they were

having some Indian and foreign currency in their possession.

13. Conviction is based only on confession and

admission of guilt is for contravention of Section 14 of the

Foreigner Act. This Court is of the opinion that consideration of

the other factors that offence was committed during election, or

that they were in possession of currency, is not relevant. Also there Patna High Court CR. REV. No.213 of 2020 dt.08-10-2021

is also nothing on record to show that the petitioners are bearing

any criminal antecedents.

14. From bare perusal of Section 14 of the Act, it is

apparent that minimum sentence has not been prescribed and

maximum five years with fine has been prescribed as punishment

for violation of the said provisions. Fact that they were found

within the territory of India during election and that they were

possessing some currency cannot be considered to be an

aggravating circumstance since the petitioners have neither been

charged, or tried for any offence based on these two facts and

circumstances. The sentence which has been passed based on

consideration of these irrelevant facts therefore is illegal, incorrect

and is unsustainable.

15. This Court is of the opinion that the period of

sentence undergone is sufficient to meet the ends of justice for the

offence of violation of Section 14 of the Act.

16. Affirming the judgment of conviction, the sentence

awarded to the petitioners is reduced to the period already

undergone.

17. With limited modification, as above, the revision

application is allowed.

Patna High Court CR. REV. No.213 of 2020 dt.08-10-2021

18. This Court would expect that the petitioners'

counsel would honour his undertaking in the instant proceedings

regarding supply of the requisite court fee etc. within two weeks

from the date he is called upon to do so by the office.

                                                (Madhuresh Prasad, J)
PNM
AFR/NAFR                N.A.F.R.
CAV DATE                N.A.
Uploading Date          09.10.2021
Transmission Date       09.10.2021