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2016 DIGILAW 346 (ALL)

Musa v. State of U. P.

2016-01-27

KARUNA NAND BAJPAYEE

body2016
JUDGMENT Karuna Nand Bajpayee, J. -- List has been revised. Shri Prakash Chandra Srivastava, Advocate has appeared for the applicants and learned A.G.A. for the State. None has appeared on behalf of Union of India-opposite party no.2. 2. These are two bail applications filed by applicants Musa and Heena with respect to same Case Crime No.903 of 2013, u/s 420, 467, 468, 471 I.P.C., Section- 3C/6B of Passport Act and Section-14 of the Foreigners Act, registered at Police Station-Sahibabad, District-Ghaziabad, and therefore, both these bail applications are being decided by a common order. 3. Heard Shri Prakash Chandra Srivastava, learned counsel for the applicants and learned A.G.A. for the State. 4. Perused the record. 5. Submission of counsel for the applicants is that the applicants are innocent persons and have been wrongly identified as Bangladeshi citizens, whereas in fact the father of applicant namely Rafiq son of Muzahir Ali is residing at Delhi since last 50 years and has obtained membership of Indian citizen, and hence, the applicants are also citizens of India. Further submission is that PAN card, Aadhar card, Voter Election Identity Card, Parivar Register and Birth certificate have been issued in favour of applicants and they are also paying house tax and electricity tax regularly and have bank accounts also. It is further submitted that the applicants have no criminal history or any criminal association and despite that they are being harassed by means of criminal case in question. It is further submitted that earlier the local police had sent the name of applicants in the list of illegal migrants of Bangladesh vide order dated 14.3.2007, wherein their names appear at serial No.8 and 10 respectively and the name of their child Shakeel appears at serial No.11. It is also submitted that the allegation against the applicants about their Bangladeshi citizenship is totally false and fabricated and is based upon presumption. Lastly it has been submitted that the applicants are in jail since 15.9.2014 and in view of totality of the facts the applicants are entitled to be released on bail. 6. Learned A.G.A. has opposed the prayer for bail and has rebutted the submissions made on behalf of the applicants. Lastly it has been submitted that the applicants are in jail since 15.9.2014 and in view of totality of the facts the applicants are entitled to be released on bail. 6. Learned A.G.A. has opposed the prayer for bail and has rebutted the submissions made on behalf of the applicants. It has been submitted that criminal case against the applicants was registered on the basis of report dated 28.6.2013 submitted by the Sub Inspector of Police, Local Intelligence Unit (LIU), Ghaziabad, whereby it has been informed that the applicant Heena wife of Musa had applied for issuance of passport in her name and during police verification of applicant Heena it got revealed at the level of Local Intelligence Unit that the lady is a Bangladeshi citizen and she along with her husband Musa and son Shakeel was deported to Bangladesh on 14.3.2007 by Delhi Police but after deportation, these persons any how again sneaked into India Territory, reached District-Ghaziabad and started living there. The husband Musa (applicant) and son Shakeel have obtained Indian Passports also. Said intelligence report was having a deportation order dated 14.3.2007 as its enclosure. It is further submitted that during investigation the Investigating Officer has inquired about all the documents allegedly obtained by both the applicants which have been enclosed in both the bail applications as Annexure-2 and it was found that the applicants were residing at their present address since last few years only but were absconding at the initial stage of investigation and ultimately they were arrested on 15.9.2014 and were interrogated also during which they could not justify their citizenship of India and confessed that they are Bangladeshi citizens and hence they were produced before the court below and were sent to the judicial custody. Learned A.G.A. has further contended that all the documents produced by both the applicants in their bail applications, as disclosed by the counsel for the applicants, are recent documents relating to year 2011 onwards and are the outcome of forgery, including the birth certificate of applicant Musa which was issued on 26.5.2014 itself as well as his passport issued on 19.2.2013. Such act of forgery is also apparent on the face of record itself as the name of father of applicant Musa is mentioned as Rafiq in Election voter Identity card, Passport, PAN card, Bank Account, Parivar Register and Aadhaar card while the name of father of applicant Musa is mentioned as Safiuddin in Voter slip (at page-19) and Birth certificate (at page-21) issued in favour of applicant and these documents have been enclosed as Annexure-2 to the bail application. The applicants have deliberately not stated or disclosed any details/particulars in connection with their identity relating to their early days of life. When applicants are putting forth their claim that the father of applicant Musa namely Rafiq is residing at Delhi since last 50 years and the applicants are claiming their age as 36 years and 29 years respectively, it apparently looks highly suspicious not to place any particulars or documents pertaining to the earlier days of their life, especially in view of the provisions of Section-9 of the Foreigners Act which provides that in a case like the present one, the onus of proving that the applicants are not foreigners lies on the accused applicants and in case the applicants fail to discharge their burden, their claim about their Indian nationality cannot be held tenable in the eyes of law. Emphasis was laid on Section-9 of the Foreigners Act, 1946 which reads as follows : "9.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 thereunder, 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, 1872 (1 of 1872), lie upon such person." 7. The accusation about their Bangladeshi citizenship is based upon the irresistible inference flowing from the totality of circumstances and substantive materials which are sufficient to prove their guilt. The accusation about their Bangladeshi citizenship is based upon the irresistible inference flowing from the totality of circumstances and substantive materials which are sufficient to prove their guilt. It is further contended that the deportment order dated 14.3.2007 is in fact a list of illegal migrants of Bangladeshi detected by S.T.F. Staff of North-East Districts, Delhi which was issued by the Foreigners Regional Registration Officer/Civil Authority, Delhi mentioning the details of total 11 persons including both the applicants and it was found by the Local Intelligence Unit that after issuance of this list/deportment order dated 14.3.2007, both the applicants along with their son Shakeel were deported to Bangladesh but they have any how again managed to reach to District-Ghaziabad and started residing there, and thereafter, the applicants obtained forged documentation from time to time in order to suppressing the true state of affairs and their previous history with the aim to establish their claim of being Indian citizens and to ultimately obtain the Indian passport. In fact the applicant Musa had even succeeded in getting Indian passport in his name on the basis of aforesaid forged documents. The facts and circumstances of the case itself speak about the seriousness of offence committed by the applicants in view of the wide spread ramifications of intrusion of Bangladeshi citizens into the territory of India, particularly in view of the present scenario of continuous attack over the sovereignty, safety and security of the nation from across the border and in view of the sustained escalation of terrorists' activities in different parts of the country. Any liberal approach taken by the court of law in such matters may have perilous ramifications and may give rise to serious consequences pertaining to the integrity of the nation. Contention is that the core terrorists who ultimately engage themselves in the gruesome acts of violent killings do not operate single handidly but have an elaborate profuse net of supporting outfits in the background which provide backup in enumerable ways by feeding informations, by giving warnings, by providing crucial clues, by surveying the places of target and doing recce and reconnaissance and by assisting to manage their escape and provide them shelter. All these supportive collateral activities of terrorists are being performed by managing the infiltration of foreigners from outside the territory into our land. All these supportive collateral activities of terrorists are being performed by managing the infiltration of foreigners from outside the territory into our land. These supportive pockets of infiltrators act in an orchestrated manner working as sleeper cells which eventually result in massive loss of lives and property. Further contention is that therefore such breaches when detected cannot be soft-pedalled or lightly viewed because of the grave peril which they entail. The absence of criminal history alone in a case like this is not sufficient to make the applicants entitled for bail and hence, the prayers of bail pressed on behalf of the applicants are liable to be rejected. 8. Looking to the nature of offence, its gravity and the evidence in support of it and the overall circumstances of this case, this Court is of the view that the applicants have not made out a case for bail. Therefore, the prayer for bail of the applicants is rejected and both these bail applications are dismissed. 9. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.