Aniruddha Bose, J. - (1.) This appeal is directed against a judgment of conviction of the appellants under Section 14A of the Foreigners Act, 1946 and the order of their sentence of imprisonment for eight years each, with further direction on each of them to pay fine of Rs. 50,000/- in default of which further rigorous imprisonment of one year has been mandated. Both the appellants claim to be citizens of Nigeria and were arrested in the town of Cooch Behar in the district of the same name in front of a hotel, B.D. Hotel on 23rd November, 2008 as they could not produce any valid travel document, in the form of passport or visa. It transpires from the prosecution case that when they were checking in at the hotel, they had failed to produce their passports or visas, and the manager of the hotel had informed the police. Thereafter the police personnel arrived and arrested both of them. A written complaint followed by an FIR was filed on the same date at the Kotwali Police Station. Charge was framed against the appellants on 20th April, 2009 under the aforesaid provision of 1946 Act. It was specified in the charge that the appellants had entered into India without any legal authority.
(2.) In course of trial altogether five witnesses were examined by the prosecution Gautam Das, manager of that hotel and Parimal Paul, a sub-inspector of police who had made the complaint forming the basis of the formal FIR have deposed for the prosecution as P.W. 1 and P.W. 4. In his examination-in-chief, the P.W. 1 stated that both the appellants had arrived at their hotel on 23rd November, 2008. They had disclosed themselves as Nigerian citizens while filling up the register. As they could not produce their passports or visas in original and only the first appellant, Diamian Udeh, could produce the photocopy of a passport, the P.W. 1 had informed the police. P.W. 4 has stated in his examination-in-chief that on receiving secret information he had gone to the B.D. Hotel and in front of the hotel, he found two Nigerian nationals moving suspiciously. On their failure to produce any valid travel document, they were arrested. The P.W. 4 had also seized the following items from them, which has been specified in the seizure list (exhibit 1):- (i) "A cash of Rs. 3,350 ( Rs. Three thousand three hundred and fifty only) from accused Sl. No. (1) (INDIAN CURRENCY) (ii) One receipt of Apsara Power Laundry at Mumbai issued on 19-11-08 from accused Sl. No. 2 (iii) Another receipt of Apsara Power Laundry at Mumbai issued on 8-11-08 from accused No. 1. (iv) One black colour NOKIA mobile set belongs to Pius Emma. (v) One white black combination 'nokia' mobile set having 9987471191 belongs to Diamian Udeh. (vi) One rail-ticket issued on 9-3-20 for the journey in between Kurla to Mumbai C.S.T. bearing no. 37837. (vii) One ticket No. 28904093 dated 22-11-08 for the journey from Bally to Chuchura from accd Sl. No. 1. (viii) One railway ticket bearing No. 28904034 dated 22.11.08 for the journey from Bally to Chuchura from accd Sl. No. 2. (ix) One railway computerised ticket bearing No. 71140466 dated 9-11-08 for the journey from Andheri to Chuchoate from accd Sl. No. 1. (x) One railway computerised ticket bearing No. 79914642 dated 14-11-08 for the journey from Andheri to Mumbai C.S.T. from accd. Sl. No. 2. (xi) One wrist watch of Rolex belongs to Accd Sl. No. 1 (xii) One wrist watch of TITAN Co. belongs to accd Sl. No. 2 (xiii) Indian Currency of R. 3,110.00 ( Rs. Three Thousand one hundred and ten only) from accd Sl. No. 2." (quoted verbatim from the seizure list).
(3.) The P.W. 2 is one Manoj Kr. Sengupta, who deposed as the DSP, District Intelligence Branch, Cooch Behar. He has stated in his deposition that in course of investigation a report was sent to the Joint Secretary, F&N.R.I. Department to ascertain as to whether the accused persons had entered into India legally having passport or not but it was ascertained that there was nothing like that. A set of documents or copies thereof, marked Exhibit '8' has been relied upon in that regard. From these documents, we find that a communication and reminder thereof were sent to the Joint Secretary, F&N.R.I. Department, Writers' Building by the police authorities of Cooch Behar district for verifying their Nigerian citizenship but there is no response to such query on record. Photocopy of a document, largely illegible, has been made part of Exhibit '8' series. The said photocopy contains the name of the first appellant, Damian Ude, and appears to be copy of his passport. P.W. 4, in course of his cross-examination, when shown the document stated that he did not seize that document. Dipak Kumar Bhawmik, a sub-inspector of police, who was the Investigating Officer deposed as P.W. 5. In his cross-examination, however, he referred to communications he made to some departments through the S.P., and he stated that after making correspondence one 'xerox' copy of document in respect of passport was obtained. He identified the document as Ext. 8.;