# Bismark Bakuba Guitermbi (In Jail) v. State of U.P

- **Citation:** (2021) 10 ILRA 526
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-01
- **Case number:** Criminal Appeal No. 7419 of 2019
- **Bench:** Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bismark-bakuba-guitermbi-in-jail-v-state-of-u-p-46367
- **Pages:** 6

## Headnote

The Foreigners Act, 1946- Section 14-A
(b)- As no record of appellant's arrival was
found at Airport New Delhi and the stamp
on visa was fake, the appellant has
committed the offence under Section 14-A
(b)
of
the
Foreigners
Act,

## Text

526 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)10ILR A526
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.09.2021

BEFORE

THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 7419 of 2019

Bismark Bakuba Guitermbi
 ...Appellant(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Anup Kumar Pandey

Counsel for the Respondent:
A.G.A.

The Foreigners Act, 1946- Section 14-A
(b)- As no record of appellant's arrival was
found at Airport New Delhi and the stamp
on visa was fake, the appellant has
committed the offence under Section 14-A
(b)
of
the
Foreigners
Act,
1946.
Appellant's Unique Case File (UCF) was
also not there at Airport, New Delhi. Along
with
fax
message
(Ex.ka3),
paper
No.15kha/4 was also sent in which it is
written
that
"ARRIVAL-
No
Record
Found". In his statement under Section
313 Cr.P.C., he has just stated that he is
innocent, but nothing is said regarding the
information provided through aforesaid
documents. Therefore, it is clear that
there was no record of appellant's arrival
at New Delhi as the stamp on visa
suggests. Hence, it is very well proved
that stamp of arrival on visa was fake.

As the prosecution proved that the appellant
had entered and was staying in India with fake
documents, hence offence u/s 14-A(b) of the
Act, 1946 was made out against him.

Criminal Law - Indian Penal Code, 1860-
Section 419, 420- Acquittal under but
conviction under Section 14-A of the
Foreigners Act, 1946- There was no
cheating by personation and there was no
cheating and dishonestly inducing of
delivery of property by appellant. Hence,
the
learned
trial
court
has
rightly
acquitted
the
appellant
against
the
charges levelled under Sections 419 and
420 IPC.

Merely because the appellant was acquitted u/s
419 and 420 of the IPC, as ingredients of the
said offences were missing in the facts of the
case, would not mean that the appellant cannot
be convicted u/s 14-A(b) of the Act, 1946. (
Para 14, 17, 20)

Criminal Appeal rejected. (E-3)

(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred by
the appellant-Bismark Bakuba Guitermbi
against the judgment and order dated
29.8.2019, passed by learned Additional
Sessions Judge, Court No.3, Maharajganj,
in Sessions Trial No.15 of 2019 (State vs.
Bismark Bakuba Guitermbi) arising out of
Case Crime No.11 of 2018 under Sections
419, 420 IPC read with Section 14-A of the
Foreigners Act, 1946 (herein after referred
to as 'the Act, 1946'), in which the appellant
has been awarded four years rigorous
imprisonment with fine of Rs.10,000/-, six
months
rigorous
imprisonment
under
Section 14-A of the Act, 1946, and the
appellant was acquitted under Sections 419
and 420 IPC.

2. The brief facts of the case are that
complainant-Tej Pratap Maurya (ACIOII/Ex) posted in Immigration Office,
Sonauli, District-Maharajganj, submitted a
report at Police Station-Sonauli that on
13.1.2018, he was posted there with Vipin
Kumar Singh. They were on night duty. In
the morning at about 5:00a.m., one foreign
national-Bismark Bakuba Guitermbi S/o
Francosis Guitermbi R/o 67-ST Benoit
10 All. Bismark Bakuba Guitermbi Vs. State of U.P.
527
Eglise, Bangui, Petevo, Central Africa,
reported in the office for going to Nepal
from India. At the time of checking his
Passport and Visa, it was found that there
was stamp affixed on Visa dated 9.12.2017
showing his arrival at Indira Gandhi
International Airport, New Delhi. When the
concerned authority at Airport, New Delhi
was contacted to confirm his arrival, it was
informed through letter No.290/RAF/A
dated 13th January, 2018, and returned
letter No.27/Misc/SNL/18 dated 13.1.2018
that in his UCF data, there was no record
available for his arrival/departure and the
stamp affixed on passport was fake. Hence,
the foreign national-appellant was handed
over at Police Station-Sonauli.

3. On the basis of above report of
Immigration Office, Case Crime No.11 of
2018 was registered against the appellant
under Sections 419, 420 IPC and Section
14 of the Act, 1946. Charge was framed by
trial court under Sections 419, 420 IPC and
Section 14-A of the Act, 1946. Learned
trial court acquitted the appellant under
Sections 419 and 420 IPC and convicted
him under Section 14-A of the Foreigners
Act and awarded sentence of four years RI
and Rs.10,000/- fine and six months
imprisonment in default of fine. Hence, this
appeal.

4. Heard Shri Anup Kumar Pandey,
learned
counsel
for
appellant,
Shri
B.A.Khan, learned AGA for the State and
perused the record.

5. At the outset, learned counsel for
the appellant submitted that initially, the
trial was conducted under Section 14 of the
Act, 1946, but when nothing was found
against the appellant, charge was amended
after recording the statement of appellant
under Section 313 Cr.P.C. Amended charge
was levelled under Section 14-A of the Act,
1946, and the appellant was convicted in
the said charge. It is also submitted by
counsel for the appellant that appellant was
acquitted under Sections 419, 420 IPC, but
convicted under Section 14-A of the Act,
1946. It is also argued that when there was
no cheating found and appellant was
acquitted under Sections 419, 420 IPC, he
could
not
have
been
convicted
in
Foreigners Act, 1946, because it is said by
prosecution that the stamp affixed on his
passport and visa was fake, but when
appellant is acquitted for the offence of
cheating, it proves that the stamp was not
fake. Hence, the learned trial court has
given contradictory findings and the
evidence on record is not appreciated in the
right perspective. It is also argued that even
in entire judgment and order impugned
herein, charge under Section 14-A of the
Act, 1946, was not considered by trial
court. Trial court has also given a finding
that appellant's passport was valid. Hence,
appellant was having valid passport-visa.

6. Learned counsel for the appellant
also argued that Investigating Officer
(PW4) before the trial court has stated in
his statement that he himself did not verify
arrival of appellant from New Delhi
Airport; he only relied on the inquiry made
by Immigration Office, Sonauli; learned
trial court has also given finding that no
offence of cheating was proved against the
appellant. Lastly, it was submitted that
appellant was awarded maximum sentence
of four years out of which he has already
served three years and seven months of
sentence. Therefore, if appeal is dismissed,
sentence may be modified as undergone.

7. No other submission or argument
was raised by learned counsel for the
appellant.
528 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Learned AGA appearing for the
State has argued that stamp of arrival on
the visa of appellant was found fake. At
Indira Gandhi International Airport, New
Delhi, no arrival record of appellant was
found. It is submitted that when there was
no arrival record of appellant at New Delhi
Airport, it is proved that arrival stamp
affixed on visa is fake and forged. He
submits that it was burden on appellant to
show how he entered India, but he could
not discharge his burden; appellant was
found in the territory of India without valid
visa/permit, therefore, offence is made out
under Section 14-A of the Act, 1946, and
he was rightly convicted by learned trial
court. Hence, the appeal may be liable to be
dismissed.

9. Prosecution case is that appellant
reported at Immigration Office, Sonauli,
District-Maharajganj at Indo-Nepal Border
for going to Nepal from India. While
checking passport and visa of the appellant,
stamp of his arrival was found affixed on
visa dated 9.12.2017 pertaining to New
Delhi Airport. For verification of his
arrival,
Immigration
Office
Sonauli
contacted Airport at New Delhi from where
it was reported that there was no arrival
record of the appellant at New Delhi
Airport and stamp of his arrival dated
9.12.2017 was found fake.

10. First of all, it is relevant to clear
the position of trial of this case as learned
counsel for the appellant has argued that
initially trial was conducted under Section
14 of the Act, 1946, and when nothing was
found against the appellant, charge was
amended under Section 14-A of the Act,
1946, even after, statement of appellant
under Section 313 Cr.P.C. I find no force in
the aforesaid submission of counsel for the
appellant because perusal of record shows
that initially trial of this case was
conducted by the court of Chief Judicial
Magistrate, Maharajganj, wrongly, as this
case was triable exclusively by the court of
sessions. After the full trial, but before
delivering the judgment, learned CJM
found that case was triable by court of
sessions and in that event, this case was
committed to the court of sessions vide
order dated 19.1.2019, passed by CJM,
Maharajganj. In that event, trial was
conducted in court of sessions.

11. To prove its case, the prosecution
has produced as many as two witnesses,
namely, Tej Pratap Maurya (PW1) and
Vipin Kumar Singh (PW2), who were on
night duty at Immigration Office, Sonauli,
when the appellant reported for going to
Nepal. PW1 and PW2 were involved in
checking the documents and handing over
the appellant to Police Station-Sonauli.

12. PW1 has stated in his statement
that for verification of arrival of appellant
in India, contact was established with New
Delhi Airport because stamp of arrival,
affixed on the visa, was showing arrival at
New Delhi. A message through fax
regarding verification of the arrival of
appellant was sent to New Delhi and it was
reported by the Airport authority that in
Unique Case File (UCF), no record of
arrival/departure was found.

13. PW2 has also stated in his
statement that he was also posted in
Immigration Office, Sonauli, at the relevant
point of time with PW1. On the visa of
appellant arrival stamp dated 9.12.2017
was found affixed, so verification was
made from Indira Gandhi International
Airport, New Delhi. It was informed by the
authorities that there was no arrival record
of appellant at Airport, New Delhi.
10 All. Bismark Bakuba Guitermbi Vs. State of U.P.
529

14. Perusal of record shows that there
are two most relevant and important
documents, which are Ex.ka2 and Ex.ka3.
Ex.ka3 is a fax message, a reply of inquiry
made by Immigration Office, Sonauli. This
fax message is of 13th January, 2018.
Ex.ka2 is the document on which required
information was written by the concerned
authority of Indira Gandhi International
Airport, New Delhi. In this reply, it was
written "checked arrival/departure of said
pax for the year 1/17 to till date. No visit
has been traced. UCF is also not traced".
Hence, in this reply, it is specifically
mentioned that UCF is also not traced.
Hence, appellant's Unique Case File (UCF)
was also not there at Airport, New Delhi.
Along with fax message (Ex.ka3), paper
No.15kha/4 was also sent in which it is
written that "ARRIVAL- No Record
Found".
Above documents were
not
rebutted by appellant in any manner. In his
statement under Section 313 Cr.P.C., he
has just stated that he is innocent, but
nothing is said regarding the information
provided through aforesaid documents.
Therefore, it is clear that there was no
record of appellant's arrival at New Delhi
as the stamp on visa suggests. Hence, it is
very well proved that stamp of arrival on
visa was fake.

15. Moreover, it is not only the fact
that PW1 and PW2, who were on duty at
Immigration Office, Sonuali, got the
verification of arrival of appellant at the
time of his reporting to the office, but
during investigation also, the Investigating
Officer enquired about his arrival. Sub
Inspector
Awadhesh
Narain
TiwariInvestigating Officer (PW4) has stated in
his statement that verification of arrival of
the appellant was made from the office of
Counsellor, Passport and Visa Division
Ministry of Foreign Affairs, New Delhi. It
is also stated by the I.O. that date of issue
of visa was 6.12.2017 and date of expiry
was 5.6.2018 and then enquiry was also
made from the office of Central Foreigners
Intelligence Bureau, Ministry of Home
Affairs, Government of India, New Delhi,
by which it was informed that appellant's
arrival/departure record was not traced.
Therefore, on the basis of evidence on
record, prosecution was succeeded to prove
that as suggested by the stamp of arrival
affixed on the visa of appellant, no record
of appellant's arrival at New Delhi Airport
was found.

16. For ready reference, Section 14-A
of the Foreigners Act, 1946, provides as
under:

"14A. Penalty for entry in
restricted areas, etc.--Whoever--

(a) enters into any area in India,
which is restricted for his entry under any
order made under this Act, or any direction
given
in
pursuance
thereof,
without
obtaining a permit from the authority,
notified by the Central Government in the
Official Gazette, for this purpose or
remains in such area beyond the period
specified in such permit for his stay; or

(b) enters into or stays in any
area in India without the valid documents
required for such entry or for such stay, as
the case may be, under the provisions of
any order made under this Act or any
direction given in pursuance thereof, shall
be punished with imprisonment for a term
which shall not be less than two years, but
may extend to eight years and shall also be
liable to fine which shall not be less than
ten thousand rupees but may extend to fifty
thousand rupees; and if he has entered into
a bond in pursuance of clause (f) of subsection (2) of section 3, his bond shall be
forfeited, and any person bound thereby
530 INDIAN LAW REPORTS ALLAHABAD SERIES
shall pay the penalty thereof, or show
cause to the satisfaction of the convicting
Court why such penalty should not be paid
by him."

17. In light of above, it is proved that
no record of appellant's arrival was found at
Airport New Delhi and the stamp on visa
was fake, the appellant has committed the
offence under Section 14-A (b) of the
Foreigners Act, 1946.

18. Learned counsel for the appellant
has argued that when appellant was
acquitted under Sections 419, 420 IPC,
how he could have been convicted under
Section 14-A of the Act, 1946. I find no
force in the submission of counsel for the
appellant because Section 419 IPC provides
for punishment of cheating by personation
and cheating by personation is defined
under Section 416 IPC as under:

"416. Cheating by personation.--

A person is said to "cheat by
personation" if he cheats by pretending to
be some other person, or by knowingly
substituting one person for another, or
representing that he or any other person is
a person other than he or such other
person really is.

Explanation.--The
offence
is
committed
whether
the
individual
personated is a real or imaginary person.
Illustration

(a) A cheats by pretending to be a
certain rich banker of the same name. A
cheats by personation.

(b) A cheats by pretending to be
B, a person who is deceased. A cheats by
personation."

19. Section 420 IPC, for punishment
of cheating and dishonestly inducing
delivery of property, is defined as under:

"420. Cheating and dishonestly
inducing delivery of property.--

Whoever cheats and thereby
dishonestly induces the person deceived to
deliver any property to any person, or to
make, alter or destroy the whole or any
part of a valuable security, or anything
which is signed or sealed, and which is
capable of being converted into a valuable
security,
shall
be
punished
with
imprisonment of either description for a
term which may extend to seven years, and
shall also be liable to fine."

20. In the case at hand, there was no
cheating by personation and there was no
cheating and dishonestly inducing of
delivery of property by appellant. Hence,
the learned trial court has rightly acquitted
the appellant against the charges levelled
under Sections 419 and 420 IPC, but it is
not shown that if appellant had been
acquitted for the offence under Sections
419 and 420 IPC, no offence is made out
under Section 14-A of the Act, 1946,
against him. With the evidence on record, it
is proved that since there was no record of
arrival of appellant in India, as discussed
earlier, it is proved that appellant entered
India without valid documents required for
such entry.

21. Hence, learned trial court has
appreciated
the
evidence
in
right
perspective and rightly convicted and
sentenced the appellant for the offence
under Section 14-A of the Foreigners Act,
1946. There is no scope for making any
interference in the impugned judgment and
order passed by trial court and appeal is
liable to be dismissed.

22. Accordingly, the appeal is
dismissed.
----------
10 All. Omvir Vs. State of U.P.
531
(2021)10ILR A531
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.03.2021

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No. 3162 of 2018

Omvir ...Appellant(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Shilpa Ahuja, Sri A. Kumar Srivastava, Sri
Chandra Bhan Singh, Sri Naseem Ahmad,
Sri Salman Ahmad, Sri Sameer Khan, Sri
Sanjeev Kumar Tripathee, Sri Suresh
Kumar srivastava

Counsel for the Respondent:
A.G.A.

Criminal Law - Narcotics Drugs and
Psychotropic
Substances
Act,
1985
-
Section 8/18- Conviction- Sentence of five
years of rigorous imprisonment- Nothing
adverse has come to the fore that may
reflect on any violation of Section 50 of
the N.D.P.S. Act which is mandatory to be
complied with and compliance of two
Sections 55 and 57 are merely regulatory
and more or less its compliance has also
been made, that does not create any dent
in the prosecution case, therefore, the
trial court was justified in recording
conviction against the appellant under
Section 8/18 N.D.P.S. Act, for which no
infirmity is perceptible in the judgment
and order impugned in this appeal.
Consequently, the conviction recorded by
the trial court is upheld.

As no violation of Section 50, 55 and 57 of the
Act is made out and the procedure of preparing
samples and recovery memo of the seized
contraband also cannot be faulted with, the
conviction of the accused held to be just and
proper.
Quantum of Sentence- Recovery of opium
less than commercial quantity- Sentence
of five years rigorous imprisonment-
Quantum
of
sentencing
part
of
the
judgment
is
concerned
that
under
prevailing facts and circumstances of this
case, appear to be too harsh for which
reasons
are
specific.
Imposition
of
sentence
for
5
years
rigorous
imprisonment is not justified in the
prevailing facts and circumstances of this
case and it cannot be approved of at this
stage and it should commensurate with
the
offence
in
question;
moreso
in
proportionate to the degree the offence
has been committed. Here only 300 grams
of opium which is much below the
commercial quantity i.e. 2.5kg. has been
recovered
in
this
case.
Hence,
the
sentence
of
5
years
rigorous
imprisonment
with
fine
Rs.20,000/-
imposed by the trial court is palliated to
three
years
rigorous
imprisonment
coupled with fine Rs.10,000/-, in case of
default in payment of fine he would have
to
suffer
additional
two
months
imprisonment.

Settled law that imposition of sentence should
be proportionate to the gravity of the offence.
Hence, as recovered contraband is much below
the commercial quantity therefore sentence held
to be excessive and accordingly modified to
three years rigorous imprisonment along with
enhancement of fine.

Criminal Appeal partly allowed. (E-3)

(Delivered by Hon'ble Arvind Kumar
Mishra-I, J.)

1. Heard Sri Sanjeev Kumar Tripathi,
learned counsel for the appellant and Sri
Bhanu Pratap Singh, learned A.G.A. for the
State and perused the records.

2. The instant criminal appeal
challenges the judgment and order dated
29.05.2018 passed by the Additional
Sessions Judge, Court No.2, Amroha, in