MD OBAIDUL HAQUE Vs. STATE OF WEST BANGAL

JUDGEMENT

(1.) THE petitioner-accused filed this application under Section 482 of the cr. P. C. praying for quashing of the proceeding being Shibpur P. S. Case No. 36 of 2009 dated 27-01-2009 under Section 14a of the Foreigners Act corresponding to G. R. Case No, 212 of 2009 now pending before the Court of the learned C. J. M. , Howrah. One S. I. of Police lodged an FIR with the O. C. , shibpur Police Station alleging the following :-

(2.) THIS FIR is sought to be quashed; and in support of the prayer the defence has a story of its own. The petitioner was a driver of a self- propelled cargo vessel named M. V. Hiraman which has its port of origin in Bangladesh. The vessel sailed from Khulna in Bangladesh on 28th of January, 2009 to load export cargo from the jetty at Botanical Garden at Howrah for a company styled as 'bd Bulk Carriers' having its principal place of business in Dhaka. The vessel was scheduled to collect fly-ash and was armed with valid permit from the Inland Waterways Authority of india. The vessel entered Indian waterways on 24th January, 2009. The Immigration and Customs Department after verifying all the permits and other relevant documents allowed the vessel to enter into Indian Territory through Namkhana Check-Post. On the evening of 25th of January, 2009 the vessel reached its port of destination end on 26th of January, 2009 a temporary landing permit was issued to the petitioner. In terms of the permit the petitioner could land and stay in the port of Kolkata from 26th January, 2009 to 2nd February, 2009 and the permit specified that between 14-00 hrs. and 18-00 hrs. the petitioner would be entitled to disembark. After landing at Botanical Garden on 27th January, 2009 the petitioner came out of the vessel and proceeded to the local market in order to procure food, materials for the crew and purchased a Vodafone sim card for himself and at that time he was arrested by the local police.

(3.) IT is submitted in the context of the above defence case that continuation of the proceeding would be a gross abuse of the process of the court. The area where the petitioner had landed so as to go to market was never notified as a restricted area in terms of the Foreigners (Restricted Areas)Order 1963; as such the provision of Section 14a of the Foreigners Act has no manner of application. As the petitioner admittedly is a Bangladeshi National and has come to india with cargo vessel to load fly-ash upon valid inland permit issued at Immigration Check-post at Namkhana and for the purpose landed at Botanical Garden it cannot be said that the petitioner entered into indian Territory without any valid authority or that he is an illegal trespasser. The petitioner's stepping out of the vessel to procure food for the crew cannot be said to be an offence under Section 14a.