Decided on November 16,1994



B.N.Singh Neelam J - (1.)This appeal is so preferred under Section 378(1) Cr.P.C. by the State against the judgment and order of acquittal dated 30th April'1987 passed by the learned Sub-Divisional Judicial Magistrate, Nagaon, Assam in G.R. Case No. 603/77 by which the sole accused opposite party namely, Chand Mia Matbor who was facing trial being charged under Section 13 & 14 of the Foreigners' Act for harbouring and giving shelter to Mazarat Ali a and his family members comprising of nine said to be foreigners.
(2.)Mrs. K. Deka appearing on behalf of the State submits that there was due service of notice upon the Opposite party though no one appears on behalf of the O P. Challenging the impugned judgment of acquittal it is submitted that in the instant case, there was material before the learned Court below us to convict the accused opposite party Chand Mia Matbor under Section 13 and 14 of the Foreigners' Act. It is further pointed out that when an appeal is so preferred against the judgment of acquittal after seeking special leave from the Hon'ble Court, the High Court has all the powers as to review at large the evidence on which the order of acquittal was passed and to arrive at a conclusion whether the judgment of acquittal can be reversed or not. The evidence of the material prosecution witnesses are referred and in this context it is submitted that the family members of Mazarat Ali were given shelter by the accused opposite party Chand Mia Matbor in connection with this case and so it can well be said that he harboured the foreigners. Attention is drawn to the evidence of three non-official witnesses, PWs 1, 2 & 3 who at the initial stage of investigation had supported the prosecution case before the Investigating Officer but now as best known to them they opted to rescind from the previous statement and are thus declared hostile in course of trial. As regards the complainant figuring PW 4 Sections & as regards Investigating Officer of the case figuring PW 6, it is submitted that they have fully supported the prosecution case and in that background hence the judgment of acquittal so passed by the Trial Court is perverse Which requires interference.
(3.)After hearing the learned counsel for the State, I have carefully gone through the Lower Court records so made available for perusal and by going through the deposition of material prosecution witnesses and also by going through the complaint so lodged the major discrepancy so cropped therein as it transpires that the detection of Mazarat Ali with his family was so made on 7.10.77 who is said to have deported after selling his immovable properties and re-deported in the year 1975 are at the very face of it seems to be ridiculous. As regards PW 6, it has rightly been observed by the Court below that he is also not specific in stating that the foreign nationals were recovered from the shelter of the accused opposite party. As detailed above, all the non-official witnesses have been declared hostile and by going through their evidence, I too find that there is discrepancies in their statements which has rightly been not relied upon by the learned Court below. After going through the entire evidence of the witnesses so examined, I thus hold the view that the impugned judgment of acquittal in the background of the facts and circumstance of the case does not require any interference. Taking that view finding no merit in this Criminal Appeal which is so preferred against the judgment of acquittal, the same is hereby dismissed. This Criminal Appeal is accordingly disposed of.

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