STATE OF SIKKIM Vs. FUTI SHERPANI

JUDGEMENT

(1.) AFTER examining the records of the case called for by this Court and hearing the learned Advocate -General appearing for the State, I have no doubt that the entire trial in this case was vitiated and the conviction and the sentence must, therefore, be set aside.

(2.) THIS was a prosecution under the provisions of an Order, generally known, though not expressly entitled, as the Work Permit Order, contained in the Notification being No. 848/H.P., dated the 10th December, 1965, paragraph 1 whereof provides that "every foreigner, entering Sikkim or residing therein, shall be required to obtain a Work Permit from the Chief Secretary or any other officer authorised by him in this behalf before he can take up or continue in any employment for gain within the State of Sikkim", paragraph 2 whereof provides that "any foreigner, who has obtained or continues in such employment without the grant of a Work Permit shall be liable to be deported from forthwith", and paragraph 4 whereof provides that "any person acting in contravention of this Order ...... shall also be liable to a fine which may extend to Rs. 100/ -(Rupees one hundred) and in default thereof to 15 days' simple imprisonment". The case of the prosecution, to quote from the prosecution Report, was that "the above named accused Futi Sherpani, Nepal, Temberkhola, Olong Chung, Nepal, 5 No. Taplayzong, found staying in without Work Permit in Sikkim" and was accordingly sent up for trial for violation of the provisions quoted above.

(3.) WHEN the accused was brought before the learned District Magistrate, he proceeded to state to her the particulars of the offence of which she was accused and on her pleading guilty thereto, she was convicted and sentenced "to pay a fine of Rs. 150/ - (Rupees one hundred fifty) only or to undergo S. I. for 1 month and deportation". The provisions of paragraphs 2 and 4 of the Order, as quoted hereinabove, make it irresistibly clear that any person found guilty thereunder "shall be liable to be deported", and "shall also be liable to a fine which may extend to Rs. 100/ - (Rupees one hundred) only and in default thereof to 15 days' simple imprisonment", and, therefore the sentence of fine of Rs. 150/ -imposed by the learned District Magistrate was in excess of what was authorised by the law and must be struck down to the extent of the excess and I would have done so if I were not satisfied that the whole trial having been otherwise vitiated, the conviction, the sentence and the order of the deportation must be struck down in their entirety.