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Calcutta High Court · body

2009 DIGILAW 311 (CAL)

Md. Obaidul Haque v. State of West Bangal

2009-04-17

P.S.DATTA

body2009
JUDGMENT 1. THE petitioner-accused filed this application under Section 482 of the cr. P. C. praying for quashing of the proceeding being Shibpur P. S. Case No. 36 of 2009 dated 27-01-2009 under Section 14a of the Foreigners Act corresponding to G. R. Case No, 212 of 2009 now pending before the Court of the learned C. J. M., Howrah. One S. I. of Police lodged an FIR with the O. C., shibpur Police Station alleging the following :- The S. I. of Police, Debdas Majumdar attached to Shibpur Police Station along with the police personnel was on patrol duty at 11 -00 hrs. on 27th January, 2009, When the police personnel arrived at Shalimar-Balurghat area it was found that the petitioner was loitering aimlessly around the area. He intercepted him who disclosed his name as Md. Obaidul Hague, a resident of Dangergarh under P. S. Jamalpur in the district of Dhaka in Bangladesh. He failed to produce visa or passport or any legal documents in support of the loitering in the area at Shalimar. He was arrested and from his possession a mobile phone and one sim card in a sealed packet bearing No. 9051911706 was seized under a seizure list in presence of the two local witnesses. The Shibpur P. S. registered the case No. 36 of 2009 dated 27th of January, 2009 under Section 14a foreigners Act. 2. THIS FIR is sought to be quashed; and in support of the prayer the defence has a story of its own. The petitioner was a driver of a self- propelled cargo vessel named M. V. Hiraman which has its port of origin in Bangladesh. The vessel sailed from Khulna in Bangladesh on 28th of January, 2009 to load export cargo from the jetty at Botanical Garden at Howrah for a company styled as 'bd Bulk Carriers' having its principal place of business in Dhaka. The vessel was scheduled to collect fly-ash and was armed with valid permit from the Inland Waterways Authority of india. The vessel entered Indian waterways on 24th January, 2009. The Immigration and Customs Department after verifying all the permits and other relevant documents allowed the vessel to enter into Indian Territory through Namkhana Check-Post. On the evening of 25th of January, 2009 the vessel reached its port of destination end on 26th of January, 2009 a temporary landing permit was issued to the petitioner. The Immigration and Customs Department after verifying all the permits and other relevant documents allowed the vessel to enter into Indian Territory through Namkhana Check-Post. On the evening of 25th of January, 2009 the vessel reached its port of destination end on 26th of January, 2009 a temporary landing permit was issued to the petitioner. In terms of the permit the petitioner could land and stay in the port of Kolkata from 26th January, 2009 to 2nd February, 2009 and the permit specified that between 14-00 hrs. and 18-00 hrs. the petitioner would be entitled to disembark. After landing at Botanical Garden on 27th January, 2009 the petitioner came out of the vessel and proceeded to the local market in order to procure food, materials for the crew and purchased a Vodafone sim card for himself and at that time he was arrested by the local police. It is submitted in the context of the above defence case that continuation of the proceeding would be a gross abuse of the process of the court. The area where the petitioner had landed so as to go to market was never notified as a restricted area in terms of the Foreigners (Restricted Areas)Order 1963; as such the provision of Section 14a of the Foreigners Act has no manner of application. As the petitioner admittedly is a Bangladeshi National and has come to india with cargo vessel to load fly-ash upon valid inland permit issued at Immigration Check-post at Namkhana and for the purpose landed at Botanical Garden it cannot be said that the petitioner entered into Indian Territory without any valid authority or that he is an illegal trespasser. The petitioner's stepping out of the vessel to procure food for the crew cannot be said to be an offence under Section 14a. 3. MR. Sandipan Ganguly, learned Advocate appearing for the State of West Bengal opposing the application for quashing of the proceedings submitted that when investigation is in progress and some materials have been collected meanwhile to show that the petitioner violated the conditions of temporary landing permit, the provision of Section 14 of the Foreigners Act read with paragraph 4 of the Foreigners Order 1948 is prima facie attracted. Mr. Ganguly submitted that in terms of the temporary landing permit the petitioner was entitled to stay and could land at the port of Kolkata only from 14-00 hrs. Mr. Ganguly submitted that in terms of the temporary landing permit the petitioner was entitled to stay and could land at the port of Kolkata only from 14-00 hrs. to 18-00 hrs. and during such stay he must not go outside the limit of Kolkata Port. Thus, according to Mr. Ganguly, the petitioner in violation of the temporary landing permit proceeded to the market in the morning of 27th January, 2009 and further he exceeded his movement by coming out of Kolkata port area. When prima facie materials are found so as to attract the provision of paragraph 4 of the Foreigners Order and investigation is in progress the court must not exercise its inherent jurisdiction to quash the proceeding. Mr. Ganguly submitted that how and from whom and on the basis of which document the petitioner procured sim card has to be investigated. 4. IT is not in dispute that the petitioner came to Indian Water as a driver of the cargo vessel which reached Indian water at 10-00 a. m. on 24th of january, 2009. The appropriate authority of the Bangladesh Government permitted the M/s. BD Bulk Carriers to load fly-ash from Kolkata through protocol route No. 2 which starts from Pundu and then proceeds to Kolkata via Khulna and Haldia. My attention has been drawn to the Schedule 1 appended to the foreigners (Restricted Areas) Order, 1963 to show that district of South-24 parganas or the district of Howrah does not fall within the restricted area. Mr. Ganguly replied that even if Section 14a of the Foreigners Act is not applicable there is no escape from the mischief of Section 14 of the Act. The Foreigners order, 1948 was promufgated in exercise of the power conferred by Section 3 of the Foreigners Act. Paragraph 4 of the Foreigners Order, 1948 provides as follows :- "landing of Seamen :- (1) No seman or member of the crew of an aircraft, being a foreigner, shall land in India without a special permit from the Superintendent of Police or any other Police Officer not below the rank of a Sub-Inspector or Sergeant. Paragraph 4 of the Foreigners Order, 1948 provides as follows :- "landing of Seamen :- (1) No seman or member of the crew of an aircraft, being a foreigner, shall land in India without a special permit from the Superintendent of Police or any other Police Officer not below the rank of a Sub-Inspector or Sergeant. (2) No such permit shall be granted unless the owners or agents of the vessel or aircraft have undertaken either generally in respect of all members of the crew of vessels or aircraft belonging to or managed by them or in an individual case the responsibility for the maintenance of such seaman or member of the crew during his residence in India and for the expenses of his departure from India. (3) For the purpose of this paragraph "seaman" has the meaning assigned to it in the Registration of Foreigners Rules, 1939. (4) The provisions of this paragraph are in addition to, and not in derogation of, the provisions of paragraph 3. " Paragraph 7 of the Foreigners Order 1948 provides as follows : "restriction of sojourn in India : (1) Every foreigner who enters India on the authority of a visa issued in pursuance of the Indian Passport Act, 1920 (XXXIV of 1920), shall obtain from the Registration Officer. having jurisdiction, either at the place at which the said foreigner enters India or at the place at which he presents a registration report in accordance with rule 6 of the registration of Foreigners Rules, 1939, 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 permit, the said registration Officer may restrict the stay of the foreigner to any of the places specified in the visa. (2) Every foreigner to whom the provisions of sub-paragraph (1) do not apply shall obtain a permit indicating the period during which he is authorized to remain in India from the Registration Officer to whom he presents a registration report in accordance with rule 6 of the Registration of Foreigners rules, 1939. (2) Every foreigner to whom the provisions of sub-paragraph (1) do not apply shall obtain a permit indicating the period during which he is authorized to remain in India from the Registration Officer to whom he presents a registration report in accordance with rule 6 of the Registration of Foreigners rules, 1939. (3) Every foreigner to whom a permit is issued under sub- paragraph (1)or sub-paragraph (2)- (i) shall not, if the permit indicates the place unless the place or places for stay in India, visit any other place unless the permit is extended by the Central Government to such other place. (ii) shall, if the permit indicates the place or places for stay in India, report in person or in writing his arrival at, and departure from any such place to the Registration Officer having jurisdiction at such place, within twenty-four hours after his arrival or, as the case may be, before his intended departure; and (iii) shall, unless the period indicated in the permit is extended by the central Government, depart from India, before the expiry of the said period; and at the time of the foreigner's departure from India the permit shall be surrendered by him to the Registration Officer having jurisdiction at the place from which he departs. " 5. UNLIKE other usual cases under Section 14 of the Foreigners Act, this is a case where the petitioner with valid authority entered into the Indian water and was permitted to disembark at the Port but only between 14 hrs. and 18 hrs., a time fixed in the temporary landing permit which he is alleged to have contravened. In terms of provision of paragraphs 4 and 7 of the Foreigners order, 1948 the petitioner was permitted to stay till a certain day which did not expire when he was arrested. The argument of the learned Counsel for the petitioner that the place where the petitioner was arrested does not fail within the restricted area cannot but be accepted inasmuch as the Schedule - I appended to the Foreigners (Restricted Areas) Order, 1963 does not include the district of South 24 Parganas and/or Howrah. Sub-paragraph 3 of the paragraph 7 of the Foreigners Order, 1948 enables the authority to restrict the place or places of stay of a foreign national. 6. Sub-paragraph 3 of the paragraph 7 of the Foreigners Order, 1948 enables the authority to restrict the place or places of stay of a foreign national. 6. THAT the provision of Section 14 (A) is not applicable to the facts of the case is quite clear because Section 14 (a) of the Foreigners Act is only applicable to the restricted areas which have been enumerated in Schedule 1 to the Foreigners (Restricted Areas) Order, 1963. One is punishable under section 14 of the Foreigners Act when he (a) remains in any area in India for a period exceeding the period for which the Visa was issued to him, or (b) does any act in violation of the conditions of the valid Visa issued to him for his entry and stay in India or any part thereunder or (c) contravene the provisions of the Act. or of order made thereunder or any direction given in pursuance of the Act or such order for which no specific punishment is provided under the act. Clauses (a) and (b) of Section 14 is not applicable to the petitioner because it is not the case that he remained in India for any period exceeding the period for which Visa was issued to him and it is not the case also that he did any act in violation of the condition of the valid visa as is provided in Clause (b). As regards Clause (c), the prosecution case rests on the footing that he disembarked from the vessel at an hour contrary to the hour of disembarkment as is stipulated in the temporary landing permit. Now paragraph 4 of the foreigners Order, 1948 provides that no seaman or member of the crew of an aircraft shall land in India without a special permit from the Superintendent of police or any other police officer not below the rank of Sub Inspector or sergeant. It is not the case of the prosecution that the petitioner landed without a special permit. It is not the case of the prosecution that the petitioner landed without a special permit. It is case of the prosecution that the officer-in-charge of the calcutta Sea Port granted temporary landing permit to the petitioner to stay at the Port of Calcutta till 1st February, 2009 which date did not expire when he was arrested, In paragraph 4 of the Order, 1948 it has not been provided that a seaman, being a foreigner, who has been granted special permit to land in India shall not disembark and shall have to remain confined within the vessel cargo at all times of the day except a specified hour. Form No. 14 of the temporary landing permit does not contain in print any specific hour of stay or of disembarkment. The words "from 14 hrs. to 18 hrs. " have been written in hand on the printed form by the Officer-in-charge, Calcutta Sea Port. Where temporary landing permit has been granted to a seaman to stay in India till 1st February, 2009 his coming down from the cargo 2 hrs. before the stipulated hour for disembarkment does not appear to be in contravention of any order under Foreigners Act, 1946 because para 4 of the Order does not provide that stay in India means stay in the foreshore only for a certain hours of the day and not beyond that. What is not in the Statute or Order framed thereunder cannot be imported. It is an arbitrary hour fixed by the Officer-in-charge Calcutta sea Port not following from the Order, 1948. The second allegation that he shall not during such stay in India go out side the limits of Calcutta Port does not prima facie stand because it is not in the FIR that the place of arrest is out side the limits of Calcutta Port. Moreover, the temporary landing permit issued on 26th January, 2009 does not specifically say as to whether the petitioner will not go out side the limits of the Calcutta Port or of the Municipality or of the corporation. Which of the 3 areas is meant to apply to petitioner has not been clearly specified in the temporary landing permit. It does not appear prima facie that the provisions of paras 4, 7 and 8 have been violated. Which of the 3 areas is meant to apply to petitioner has not been clearly specified in the temporary landing permit. It does not appear prima facie that the provisions of paras 4, 7 and 8 have been violated. Under paragraph 11, the civil authority may direct that any foreigner shall comply with such conditions as may be specified in the Order in respect of his place of residence, his movements, his association with any person or class of persons specified in the Order and his possession of such articles as may be specified in the order. It does not appear that the temporary landing permit has put any condition which the petitioner can be alleged to have violated. The prosecution could not clearly explain as to which provision of the Foreigners Act or which provision of the Foreigners Order, 1948 has been violated by the petitioner. Again clause (e) of Sub Section (2) of Section (3) of the Foreigners Act, 1946 provides that a foreigner can be bound by any Order so as to subject himself to such conditions as are enumerated in clauses (i) to (ix). The petitioner's coming out of the cargo and his visibility at 11.50 hrs. instead of at 14 hrs. does not appear to be in contravention of para 4 or para 7 of the Foreigners Order, 1948 or para 11 of the said Ordrer. Since in the temporary landing permit the word 'municipality' or the 'corporation' has not been struck off and since the FIR does not contain that the place of areas is out side the Calcutta Port area or out side the area of municipality or corporation, it cannot be said that any condition of the Foreigners Order, 1948 has been violated. It is alleged that a SIM Card bearing a certain number was found from his possession. The investigating agency is free to investigate into the matter but so far as the provisions of Section 14 and 14 (A) of the Foreigners act is concerned, it does not appear that a prima facie case has been made out. 7. ACCORDINGLY, while the criminal proceeding against the petitioner under Section 14/14 (A) of the Foreigners Act is quashed the investigating agency is free to investigate into any other offence including purchase and possession of SIM Card and take appropriate steps in accordance with law. 8. SITUATED thus, the application is allowed.