Supreme Court of India
HABIB IBRAHIMversusSTATE OF RAJASTHAN
- Citation
- 2008 INSC 756
- Decided
- 13 June 2008
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
The conviction and five‑year rigorous imprisonment under Section 3 r/w Section 14 of the Foreigners Act, 1946, stand affirmed with no reduction in sentence.
Summary
Habib Ibrahim, a Pakistani national, was arrested for residing in India without a valid document. He possessed only a six‑month transit visa for Nepal and was found with a Pakistani passport but no permission to stay in India. He was charged under Section 3 read with Section 14 of the Foreigners Act, 1946, convicted by the Chief Judicial Magistrate and sentenced to five years’ rigorous imprisonment and a fine, a judgment affirmed by the Rajasthan High Court. On appeal, he contended that having already spent more than four years in custody warranted a reduction of his sentence. The Supreme Court held that the conviction was proper because he had no lawful authority to remain in India, and his claim of ignorance was untenable; consequently, the sentence was not reduced and the appeal was dismissed.
Issues considered
- Whether the appellant’s lack of a valid document to stay in India justifies conviction under Section 3 read with Section 14 of the Foreigners Act, 1946.
- Whether the sentence should be reduced on account of the time already spent in custody.
Legislation cited
- Foreigners Act, 1946s. 13, s. 14, s. 3
Subjects
illegal immigrationForeigners Actconvictionsentence reductiontransit visalack of valid documentappeal dismissed
Judgment
[2008J 9 s:c.R. 1178
A HABIB IBRAHIM
v.
STATE OF RAJASTHAN
(Criminal Appeal No. 994 of 2008)
JUNE 13, 2008
B
[DR. ARIJIT PASAYAT AND P.P. NAOLEKAR, JJ.]
Foreigners Act, 1946: Ss 3 and 14:
Sentencing - Arrest of a Pakistani resident for living in
C India illegally - FIR - Investigation - Trial Court found the
accused guilty of committing the offence punishable ulss. 3
and 14 of 1946 Act and sentenced him to undergo imprison-
ment for five years - Affirmed by High Court - Reduction in
sentence - Held: Accused possessed no valid document to
D stay in India - Hence, there is no scope for interference with
the judgment of the High Court.
Appellant, a resident of Pakistan, was arrested by the
police allegedly for living in India illegally. An FIR was
E registered against him and after completing the investi-
gation, charge sheet was filed by the police. The Chief
Judicial Magistrate found him guilty of committing the
offences punishable u/s. 3 r/w 5.14 of the Foreigners Act,
1946 and sentenced him to undergo rigorous imprison-
ment for 5 years. Conviction and sentence of the appel-
F lant was upheld by the High Court. Hence, the present
appeal.
Appellant contended that since he has already suf-
fered custody for more than four years and six months,
G the sentence may be reduced.
Dismissing the appeal, the Court
HELD: It was rightly noted by the Courts below that
the appellant had been issued a transit visa that too for
H 1178
HABIB IBRAHIM v. STATE OF RAJASTHAN 1179
[DR. ARIJIT PASAYAT, J.]
~ Nepal for a period of six months. There was no valid docu- A
ment in possession of the appellant to stay in India. There-
fore, 5.3 read with 5.14 of the Act have been rightly applied.
Hence, the conviction cannot be faulted. So far as the sen-
tence is concerned, considering the large number of infil-
trators come to India without valid document, there is need B
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 with-
out substance. Otherwise, he would not have obtained any c
transit visa for Nepal. Hence, there is no scope for interfer-
ence in the appeal. (Paras - 7 and 8) [1184-E-H, 1185-A]
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 994 of 2008
D
From the final Judgment and Order dated 21.11.2007 of
the High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur
in Crl. Revision No. 1201 of 2006
Dinesh Kumar Garg, Abhishek Garg, B.S. Billowria ;md
D.K. Gupta for the Appellant. E
Naveen Kumar Singh and Aruneshwar Kumar Gupta for
the Respondents.
The Judgment of the Court was delivered by
~
Dr. ARIJIT PASAYAT, J. 1. Leave granted. F
2. Challenge in this appeal is to the judgment of a Learned
Single Judge of the Rajasthan High Court, Jaipur Bench, up-
holding the conviction of the appellant for offence punishable
under Section 3 read with Section 14 of the Foreigners Act, G
1946 (in short the 'Act') and sentence to five years rigorous
imprisonment with fine of Rs.25,000/- with default stipulation.
y
Two other persons faced trial alongwith the appellant for offences
punishable under Section 13 read with Section 14 of the Act.
While co-accused Bagwan Sahai Sain acquitted, the other ac-
H
1180 SUPREME COURT REPORTS [2008] 9 S.C.R.
A cused Sm!. Sunita alias Sonu alias Nagma convicted and sen-
tenced to undergo simple imprisonment for three years and to
pay fine of Rs.5,000/- with default stipulation.
3. Background facts in a nutshell are as follows:
B SHO Vidhadhar Nagar, Jaipur acting upon the informa-
tion of informant on 13.1.2004, the then SHO Richpal Singh
alongwith Superintendent of Police reached at Vidhyadhar
Nagar bus stand No. 15 and verified the information given that
the persons accompanying with Bhagwan Sahai Sain Rio Vil-
e !age Aakedadugar is a Pakistani resident who is living in India
illegally. Thereafter at about 8.15 am he reached at Bus stand
No. 1t alongwith two witnesses. He found one person with
Bhagwan Sahai. Upon inquiry, he told his name to be Habib
Ibrahim, son of Ibrahim Rahamtullah R/o Gali No. 3 Mullah Allah
Dadlen Gobol Road, Liyari, Karachi, Pakistan. The documents
0
authorizing stay in India were demanded from Habib Ibrahim
and he was asked the reasons for coming to India. He did not
give any satisfactory answer. On the basis of suspicion he was
searched in the presence of witnesses and a. P,akistani pass-
port was recovered from his pocket and tourist visa for six months
E for Nepal, telephone bills were recovered from him. Bhagwan
Sahai and Sm!. Sunita @Sonu@Nagma were also arrested
as they were helping Habib Ibrahim who was living in Indian
illegally. FIR No. 14/2004 was registered and investigation
started. During investigation a spot map was prepared and the
F statement of accused were recorded and they were arre!>ted.
On the information of accused Habib Ibrahim, Nepalese cur-
rency, a reliance mobile of Nokia company and tickets of air-
lines, documents a-nd cash relating to Bangladesh and Indian
currency were recovered from his house at 8/37 Vidhyadhar
G Nagarwhich were seized and produced before the court. After
complication of investigation, charge sheet was filed.
4. The learned Chief Judicial Magistrate, Jaipur found that
the accusations against the accused appellants were fully es-
tablished. Accordingly conviction was recorded and sentence
H
HABIB 18RAHIM v. STATE CF RAJASTHAN 1181
[DR. ARIJIT PASAYAT, J.]
t was imposed. In the Criminal revision filed before the High Court, A
stand taken was that he had come to meet his wife and children
who were residing at Jaipur. It was further submitted that since
the accused had suffered custody for more than three years
and nine months, a liberal view has to be taken. The State op-
posed the stand contending that the appellant knowingly and B
willfully came and stayed in India without any passport. Whether
y
he is resident of Pakistan or Onam as claimed, the appellant
had only a tourist visa to visit Nepal and that too the currency
period of visa was only six months. Long thereafter the appel-
lant was four'.:! in India without a passport.
c
5. The High Court found that the conviction was well
founded and there was no scope for reducing the sentence.
6. The stand taken by the parties before the High Court
was reiterated. It is submitted by learned counsel for the appel-
D
lant that he has already suffered custody for more than four years
.>
and six months and the sentence should be reduced Sections
3, 13 and 14 of the Act reads as follows:
"Section 3: Power to make orders (1) The Central
Government may by order make provision, either generally E
or with respect to all foreigners or with respect of any
particular foreigner or any prescribed class or description
of foreigner, for prohibiting regulating or restricting the
entry of foreigners into India or their departure therefrom
or their presence or continued presence therein. F
(2) In particular and without prejudice to the generality of
the foregoing power, orders made under this Section may
provide that the foreigner-
(a) shall not enter India or shall enter India only at such
G
times and by such route and at such port or place
and subject to the observance of such conditions on
arrival as may be prescribed;
(b) shall not depart from India or shall depart only at
such times and by such route and from such port or H
1182 SUIDREME COURT REPORTS [2008] 9 S.C.R.
't
A place and subject to the observance of such
conditions on departure as may be prescribed;
(c) shall not remain in India or in any prescribed area
therein;
B (cc) shall, if he has been required by order under this
Section not remain in India, meet from any resources
at his disposal the cost of his removal from India and '
of his maintenance therein pending such removal.
(d) shall remove himself to, and remain in, such area in
c India as may be prescribed;
(e) shall comply with such conditions as may be
prescribed or specified-
i. requiring him to reside in a particular place;
D
ii. imposing any restrictions on his movements; '
iii. requiring him to furnish such proof of his identify
and to report such particulars to such authority
in such manner and at such time and place as
E may be prescribed or specified;
iv. requiring him to allow his photograph and finger
impressions to be taken and to furnish
specimens of his handwriting and signature to
such authority and at such time and place as
F may be prescribed or specified'
v. requiring him to submit himself to such medical
examination by such authority and at such time
and place as may be prescribed or specified;
G vi. prohibiting him from association with persons
of a prescribed or specified description;
vii. prohibiting him from engaging in activities of a f
prescribed or specified description;
H viii. prohibiting him from using or possessing
HABIB IBRAHIM v. STATE OF RAJASTHAN 1183
[DR. ARIJIT PASAYAT, J.]
prescribed or specified articles; A
ix. otherwise regulating his conduct in any such
particular as may be prescribed or specified;
(f) shall enter into a bond with or without sureties for the
•
due observance of, or as an alternative to the B
enforcement of, any or all prescribed or specified
restrictions or conditions;
(g) shall be arrested and detained or confined; and may
make provision for any matter which is to be or may
be prescribed and for such incidental and C
supplementary matters as may, in the opinion of the
Central Government, be expedient or necessary for
giving effect of this Act.
3. Any authority prescribed in this behalf may with respect D
to any particular foreigner make orders under clause (e)
[for class (f) of sub section (2)]
Section 13. Attempts etc., to contravene the provisions of
this Act, etc. - ( 1) Any person who attempts to contravene
or abets or attempts to abet or does any act preparatory E
/ to a contravention of the provisions of this Act or of any
order made or direction given thereunder, or fails to comply
with any direction given in pursuance of any such order,
shall be deemed to have contravened the provisions of
this Act. F
(2) Any person who, knowing or having reasonable
cause to believe that any other person has
contravened the provisions of that Act or of any order
made or direction given thereunder, gives that other
person any assistance with intent thereby to prevent, G.
hinder or otherwise interfere with his arrest, trial or
punishment for the said contravention shall be
deemed to have abetted that contravention.
(3) The master of any vessel or the pilot of any aircraft, H
1184 SUPREME COURT REPORTS [2008] 9 S.C.R.
..
A as the case may be, by means of which any foreigner
enters or leaves India in contravention of any order
made under or direction given in pursuance of,
Section 3 shall, unless he proves that he exercised
all due diligence to prevent the said contravention,
B be deemed to have contravened this Ace
14. Penalties- If any persons contravenes the provisions •
of this Act or of any order made thereunder, or any
direction given in pursuance of this Act or such order, he
shall be punished with imprisonment for a term which may
c extend to five years and shall also be liable to fine; and if
such person has entered into a bond in pursuance of clause
(f) of sub-section (2) of Section 3, his bond shall be forfeited,
and any person bound thereby shall pay the penalty thereof,
or show cause to the satisfaction of the convicting court
D why such penalty should not be paid." ..
7. Prosecution evidence clearly establishes that the ap-
pellant 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
E 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 dooument 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
F stay illegally in India. 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 posses-
sion of the appellant to stay in India. Therefore Section 3 read
with Section 14 of the Act have been rightly applied. The con-
G viction 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 nedd for imposing stricter
sentence. The reasons given by the appellant to justify his pres-
ence in India have hardly any substance. Appellant's feeble plea
H that he did not know that he is required to be in possession of
HABIB IBRAHIM v. STATE OF RAJASTHAN 1185
[DR. ARIJIT PASAYAT, J.]
valid document is without substance. Otherwise, he would not A
have obtained any transit visa for Nepal.
8. Above being the position there is no scope for interfer-
ence in the appeal.
9. The appeal is accordingly dismissed. B
S.K.S. Appeal dismissed
·• ">
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