(Prayer: Criminal Appeal filed under Section 415 of BNSS, to call for the records and set aside the sentence imposed upon the appellants by the II Additional District and Sessions judge, Tiruppur, in SC.No.152 of 2024 Chennai, dated 01.04.2026.)

1. This Criminal Appeal has been filed to call for the records and set aside the conviction and sentence imposed upon the appellants by the II Additional District and Sessions judge, Tiruppur, in SC.No.152 of 2024 Chennai, dated 01.04.2026.

2. The conviction and sentence imposed on the appellants, vide impugned judgment dated 01.04.2026, are as follows:-

                  

3. Aggrieved by the said conviction and sentence, the appellants have preferred the present appeal before this Court.

4. The learned counsel for the appellants produced the deposition of witnesses and relevant documents. The learned Additional Public Prosecutor appearing for the respondent police has received the same and has no objection. With the consent of both sides, this Criminal Appeal is taken up for final hearing and disposal.

5. The case of the prosecution is that, on 05.12.2023, at about 3.00 a.m., P.W.1 (Velliyangiri), the Sub-Inspector of Police, Mangalam Police Station, while on regular patrol duty along with Head Constables viz., Suresh and Kanagaraj, noticed two persons near Padmavathy Compound. On seeing the police personnel, the said persons attempted to flee from the spot, but were apprehended. As they spoke in Bengali and broken Tamil, they were interrogated with the assistance of Noor Amir Ali, a contractor proficient in Bengali. During the enquiry, they identified themselves as Mohammed Alomgir Hoshen and Shohel and claimed to belong to the States of West Bengal and Assam, respectively. However, upon verification of their Aadhaar Cards and PAN Cards, discrepancies were noticed in their addresses. On further enquiry, they allegedly admit that they were nationals of Bangladesh and had entered India without valid travel documents. They further disclosed that they had travelled to Tamil Nadu by train in search of employment and had obtained Indian Aadhaar Cards through an unknown person and were working here in Tiruppur.

6. Based on the complaint, a case was registered in Crime No.481 of 2023 on 05.12.2023 by the Mangalam Police Station, Tiruppur, for offences under Section 3(2) (c), read with Section 14A(b) of the Foreigners Act, 1946, and the investigation was taken up. On completion of the investigation, charge sheet was filed and the case was taken on file. During the trial, the prosecution examined P.W1 to P.W.6 and marked Exs.P1 to P13 and produced material objects M.O.1 to M.O.6.

7. The learned counsel for the appellants submitted that P.W.1, the Sub- Inspector of Police, apprehended and arrested the appellants during a night patrol. She further submitted that the respondent police failed to examine the owner of the company where the appellants were employed. Furthermore, they failed to collect any identification documents to conclusively confirm that the appellants are nationals of Bangladesh. P.W.2, another police personnel, admitted that the appellants not informed how they entered India or who accompanied them. The respondent police took no steps to ascertain how long the appellants staying in India in violation of the Foreigners Act. P.W.3 admitted that the observation mahazar and rough sketch printouts prepared in the police station. P.W.4 admitted that he stood as witness at the request of the police. P.W.5, the Investigating Officer, admitted that he did not conduct any investigation regarding how, when, or through which route the appellants entered India. He acknowledged that he merely relied on the confessions given by the appellants to confirm their illegal entry into India, failed to collect records from their employer, not examined the main contractor/employer, Jamier. In response to a question posed by the Court, P.W.5 admitted that he took no steps to verify the genuineness of the Aadhaar cards and PAN cards. P.W.6, the subsequent Investigating Officer, not conducted any independent investigation, simply relied on the investigation of P.W.5. But, the Trial Court erroneously held that the burden of proof lay upon the appellants to show that they were not illegal immigrants and that the seized Aadhaar and PAN cards are genuine, which is contrary to the fundamental principles of criminal jurisprudence.

8. The learned counsel for the appellants urged the admitted position of the prosecution case is that, the appellants are from Bangladesh Foreign Nation and they were found in Tiruppur. The appellants were not conversant with the local language, does not know to read or write and understand Tamil. But the entire trial proceedings conducted in the regional language-Tamil. Hence, appellants denied effective opportunity to understand the allegation and to defend their case. Further, though it has been projected that the assistance of Contractor Noor Amir Ali, who is proficient in Bengali, the appellants were examined, but his qualification and competency have not been proved. The Apex Court, in the case of Central Bureau of Investigation Vs. Narottam Dhakad, reported in 2023 SCC OnLine SC 1069, held that, if the denial of an effective opportunity is established, it amounts to violation of Article 21 of the Constitution of India, and the benefit has to be given to the appellants, rendering the conviction unsustainable.

9. The learned counsel for the appellants referred to the guidelines issued by Ministry of Home Affairs in F.14011/55/09 F-VI, dated 23.11.2009 circular, wherein the procedure of deportation of Bangaladeshi Nationals given, further particularly referred to paragraph No.2(v) of the circular, which is extracted below:-

                   “2(v) In respect of Bangladeshi nationals found to be staying unauthorizedly in any particular State/UT, proper inquiry shall be conducted by the State Government / UT concerned. If the suspected Bangladeshi national claims Indian citizenship and residence of a place in any other Indian State/UT, the concerned State Government/UT would send to the Home, Secretary of the State/UT and District Collector/District Magistrate of the District from where the suspected person claims to hail, the details including name, parentage, residential address, details of near relatives etc. the State Government / UT / Collector/District Magistrate concerned in turn will ensure that appropriate report is sent the deporting State Government / UT after proper verification within a period of 30 days. All the States/UTs shall issue appropriate instructions to the District Collectors/District Magistrates for ensuring verification of claim of such suspected persons well in time. During the period of 30 days, the competent authority will ensure, by obtaining permission of the court wherever necessary, the detention of such persons to ensure physical availability at the time of deportation. If no report is received within the period of 30 days, the competent authority may take necessary action to deport the suspected Bangladeshi national.”

10. Learned counsel for the appellant referred to paragraph Nos.14 & 19 of the Hon’ble Apex Court Judgment in M/s.Maja Daruwala and another v. State of West Bengal reported in 2025 Law Finder SC 4783. The same are extracted hereunder:

                   “14.The pivotal issue that falls for our consideration is that if an illegal immigrant from Bangladesh after being apprehended and proceeded under Section 14 A(b) of the Foreigners Act, 1946 is convicted and sentenced to undergo a particular term of imprisonment then after he completes his term of sentence should be immediately repatriated/deported to his own country or should he be kept for an indefinite period in the Correctional Homes in India. The only confusion in our mind is that once an illegal immigrant is put to trial and is held guilty then what is the requirement for further verification of his nationality at the end of the Ministry of External Affairs.

                   19.The plain reading of Clause 2(v) indicates that the entire exercise is to be completed i.e.the exercise of deportation, verification etc., within a period of 30 days.”

11. It is also contended by the learned counsel for the appellants that the appellants are in Prison without any earnings and no relatives nearby unable to pay the fine amount of Rs.10,000/- each and sought waiver of the same or atleast default sentence of three months can be reduced, on this point referred to the judgment of the Hon’ble Apex Court in the case of Shahejad Khan Mahebukhan Pathan v. State of Gujarat reported in 2013 (1) SCC 570.

12. Mrs.Sharada Vivek, learned Additional Public Prosecutor appearing for the respondent police, vehemently opposed the contentions of the learned counsel for the appellants. She filed a counter-affidavit, reiterating the prosecution’s case, and submitted that on 05.12.2023, at about 3.00 a.m., P.W.1, while on regular patrol duty with Head Constables Suresh and Kanagaraj, apprehended the appellants as they attempted to escape near the Padmavathy Compound. Since the appellants spoke Bengali and broken Tamil, they were examined with the assistance of Noor Amir Ali, and their statements were recorded. It was initially stated that the first appellant belonged to West Bengal and the second appellant belonged to Assam, and their Aadhaar cards reflect addresses in those States. Thereafter, P.W.5 took up the investigation, registered an FIR, prepared a rough sketch, recorded the confession statements, and seized the material objects. P.W.3, the attestor of the Observation Mahazar, corroborated the evidence of P.W.5 regarding the manner in which the Observation Mahazar (Ex.P2) and the rough sketch were prepared. P.W.4 was a tailor working in the same company where the appellants were employed. P.W.6 concluded the investigation and filed the charge sheet.

13. She further produced the communication from Regional Special Deputy Collector, Srilankan Tamil Rehabilitation Camp, Kotappattu, Tiruchirappalli, in reference No.B1/104/2026 dated 18.09.2026, wherein the procedure taken by the authority with respect to Bangladeshi nationals has given as follows:-

                   “10.Details of procedural steps taken by concerned Authorities with respect to Bangladeshi nationals detained, in line with the Repatriation of Prisoners Act, in respect of this Taluk:

                   It is submitted that the following procedure is followed with respect to Bangladeshi nationals lodged in the Special Camp: the identity proofs of the inmates are forwarded by the Police Department to the Bangladesh High Commission for verification. Upon verification by the concerned Government of Bangladesh, a Travel Permit is issued in respect of the verified nationals. Subsequently, a Government Order is issued for release of the said nationals from the Camp for the purpose of deportation to their native country”.

14. She further submitted that the trial Court, upon considering the oral and documentary evidence and after hearing arguments on both sides, found the appellants/accused guilty of the aforesaid offences, and subsequently convicted and sentenced them as stated above, vide its judgment dated 01.04.2026.

15. Considering the submissions made by the learned counsel on either side and upon perusal of the materials available on record, it is evident that on 05.12.2023, at about 03.00 a.m., while on patrol duty, the P.W.1, the Sub- Inspector of Police, along with the Head Constables, noticed the appellants while on patrol duty. On suspicion, they interrogated them, during which the appellants admit that they are Bangladeshi citizens entered India without any valid travel documents. Thus, the prosecution has successfully established that the appellants are Bangladeshi nationals and that they have entered India without valid documents. Hence, based on the oral and documentary evidence, the trial Court rightly convicted the appellants for offence under Section 14(A) (b) of the Foreigners Act, 1946. Accordingly, this Court finds no reason to interfere with the judgment of the trial Court and confirms the conviction of the appellants for offence under Section 14(A)(b) of Foreigners Act, 2004.

16. However, as regards the sentence is concerned, it is seen that the appellants entered India in search of a livelihood, had been staying in Tiruppur for a considerable time, and were employed there as daily wage laborers. It is not in dispute that the appellants, due to unrest and uncertainty about their future, and being unemployed and impoverished, came in search of employment and livelihood to sustain themselves and their families. Admittedly, they are neither involved nor convicted of any economic offence and they have not enriched so as to assume that they possess means to pay the fine. Thus, considering the circumstances of the appellants/accused, namely, that they are very poor, seeking livelihood, have migrated in search of employment, and are in penury and unable to pay the fine amount, and considering their pecuniary circumstances and following the principles laid down in Shahejad Khan Mahebukhan Pathan (cited supra), this Court confirms the sentence of fine of Rs.10,000/- (Rupees Ten Thousand only) imposed on each of the appellants and modifies the default sentence of six months' Simple Imprisonment to one week. Except for the aforesaid modification in the default sentence, the sentence of two years Rigorous Imprisonment is confirmed.

17. In this case, the Translator not examined as a witness during trial. Consequently, the confession statements marked as Ex.P3 and Ex.P4 carry no legal value. Thus, the subsequent recovery of Exs. P5, P6, P9, P10, P11, and P12 become inconsequential having no evidentiary value. It is also noted that P.W.6 admitted the sending of requisition letters to the Deputy Director General of UIDAI, Bangalore, and the Chief Commissioner of Income Tax, Coimbatore, to verify the genuineness of the Aadhaar and PAN cards, thereafter, left it at that stage and no verification reports or replies received from the authorities concerned and no investigation done to confirm and prove forgery and knowingly using forged documents as genuine. In view of failure to prove forgery, the conviction and sentence imposed on the appellants for offence under Sections 468 & 471 of IPC are hereby set aside.

18. In the light of the directions issued by the Apex Court in Maja Daruwala (cited supra), and in terms of the Circular dated 23.11.2009 issued by the Ministry of Home Affairs, extracted supra, the exercise of deportation is required to be completed within a period of thirty days. Accordingly, the Authorities concerned are directed to take appropriate action and ensure that the appellants are deported to Bangladesh within a period of thirty days from the date on which they complete their substantive term of imprisonment and undergo the default sentence of one week, and the said direction shall be followed without deviation or delay.

19. In the result, this Criminal Appeal is partly allowed.