Allowed

Sagibur Rahaman @ Sajbur Rahaman v. the State of Tripura and Ors.

Tripura HC3 Jul 2017WP(C)/709/2017

Case brief

AI extract

What is this about?

The High Court of Tripura allowed four writ petitions filed by Bangladeshi nationals. The court allowed petitioners to cross the international border using their valid Indian visas despite Customs concerns. It mandated authorities not to obstruct exit and established rules for service of notices while retaining their passports.

What did the court decide?

Petitioners at liberty to cross international border; respondents not to obstruct exit based on passport/visa; notices to be sent via registered post.

Sagibur Rahaman @ Sajbur Rahaman Vs… — Constitutional and Fundamental Rights | Tripura HC (2017)

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IN THE HIGH COURT OF TRIPURA A G A R T A L A

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W.P.(C) No.705 of 2017, W.P.(C) No.707 of 2017, W.P.(C) No.708 of 2017, W.P.(C) No.709 of 2017,

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In W.P.(C) No.705 of 2017

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Petitioner:

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Shri Parimal Saha, Son of Bidhu Bhushan Saha, Resident of Kalakachua, P.O. & P.S. Burichong, District : Comilla, Bangladesh,

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By Advocate :

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Mr. S. Lodh, Advocate

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– V e r s u s –

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Respondents :

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1. The State of Tripura, represented by the Secretary, Government of Tripura, Home Department, New Capital Complex, P.O. Kunjaban, P.S. New Capital Complex, Agartala, District : West Tripura

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2. The Director General of Police, Tripura, Police Head Quarters, Fire Brigade Chowmohani, P.S. West Agartala, P.O. & Sub-DivisionAgartala, District : West Tripura

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3. The Superintendent of Police, Special Branch, Tripura, Fire Brigade Chowmohani, Agartala, West Tripura

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By Advocate :

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Mr. S. Chakraborty, Addl. G.A.

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In W.P.(C) No.707 of 2017

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Petitioner:

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Abul Kalam Azad, son of Abul Hasem,

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[2]

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resident of Narayonshar, Kalakachua, P.O. & P.S. Burichong, District : Comilla, Bangladesh

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By Advocate :

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Mr. S. Lodh, Advocate

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– V e r s u s –

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Respondents :

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1. The State of Tripura, represented by the Secretary, Government of Tripura, Home Department, New Capital Complex, P.O. Kunjaban, P.S. New Capital Complex, Agartala, District : West Tripura

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2. The Director General of Police, Tripura, Police Head Quarters, Fire Brigade Chowmohani, P.S. West Agartala, P.O. & Sub-DivisionAgartala, District : West Tripura

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3. The Superintendent of Police, Special Branch, Tripura, Fire Brigade Chowmohani, Agartala, West Tripura

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By Advocate :

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Mr. S. Chakraborty, Addl. G.A.

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In W.P.(C) No.708 of 2017

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Petitioner:

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Mohammad Ali,

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son of Abid Ali, resident of Narayonshar, Kalakachau, P.O. & P.S. Burichong, District : Comilla, Bangladesh

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By Advocate :

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Mr. S. Lodh, Advocate

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– V e r s u s –

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Respondents :

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W.P.(C) No.705 of 2017 W.P.(C) No.707 of 2017 W.P.(C) No.708 of 2017

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W.P.(C) No.709 of 2017

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Page 2 of 10

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[3]

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1. The State of Tripura, represented by the Secretary, Government of Tripura, Home Department, New Capital Complex, P.O. Kunjaban, P.S. New Capital Complex, Agartala, District : West Tripura

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2. The Director General of Police, Tripura, Police Head Quarters, Fire Brigade Chowmohani, P.S. West Agartala, P.O. & Sub-DivisionAgartala, District : West Tripura

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3. The Superintendent of Police, Special Branch, Tripura, Fire Brigade Chowmohani, Agartala, West Tripura

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By Advocate :

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Mr. S. Chakraborty, Addl. G.A.

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In W.P.(C) No.709 of 2017

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Petitioner:

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Sagibur Rahaman @ Sajibur Rahaman, Son of Alahi Box, resident of Korpai, P.O. & P.S. Burichong, District : Comilla, Bangladesh

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By Advocate :

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Mr. S. Lodh, Advocate

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– V e r s u s –

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Respondents :

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1. The State of Tripura, represented by the Secretary, Government of Tripura, Home Department, New Capital Complex, P.O. Kunjaban, P.S. New Capital Complex, Agartala, District : West Tripura

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2. The Director General of Police,

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W.P.(C) No.705 of 2017 W.P.(C) No.707 of 2017 W.P.(C) No.708 of 2017

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W.P.(C) No.709 of 2017

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Page 3 of 10

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[4]

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Tripura, Police Head Quarters, Fire Brigade Chowmohani, P.S. West Agartala, P.O. & Sub-DivisionAgartala, District : West Tripura

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3. The Superintendent of Police, Special Branch, Tripura, Fire Brigade Chowmohani, Agartala, West Tripura

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By Advocate :

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Mr. S. Chakraborty, Addl. G.A.

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BEFORE THE HON’BLE MR. JUSTICE S. TALAPATRA

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Date of delivery of : 03.07.2017 Judgment & Order Whether fit for reporting : Yes No √

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JUDGMENT & ORDER (ORAL)

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All these writ petitions being WP(C) No.705 of 2017 [Parimal Saha Versus State of Tripura & Others], WP(C) No.707 of 2017 [Abul Kalam Azad Versus State of Tripura & Others], WP(C) No.708 of 2017 [Md. Ali Versus State of Tripura & Others] & WP(C) No.709 of 2017 [Sagibur Rahaman @ Sajibur Rahaman Versus State of Tripura & Others], are consolidated for disposal by a common judgment inasmuch as the identical fact and the questions of law are involved.

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Mr. S. Lodh, learned counsel has appeared for the petitioners who are admittedly the foreign Nationals being the Citizen of Bangladesh and are holding valid passports of Bangladesh having No. as under :

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W.P.(C) No.705 of 2017 W.P.(C) No.707 of 2017 W.P.(C) No.708 of 2017 W.P.(C) No.709 of 2017

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Page 4 of 10

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[5]

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1. Parimal Saha – Passport No.BM0699719

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2. Abul Kalam – Passport No.BC0584598

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3. Mohammad Ali – Passport No.BJ0397466

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4. Sagibur Rahaman @ Sajibur Rahaman – Passport No.BK0474261

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The High Commission of India being satisfied of their credence has issued in their favour visas for multiple entry to India. They entered in India together on 08.05.2017. The multiple visas are valid for quite a long time, for example, in case of the petitioner being WP(C) No. 705 of 2017 it would expire on 31.01.2018. The petitioners had entered into India through the land port at Srimantpur on 08.05.2017 and on 09.05.2017 when they were returning to Bangladesh they were detained by Border Security Force (BSF, in short) on allegation that they were intercepted by US Currency of $.2,03,100/- with Bangladeshi Currency. From them, the foreign currencies, without valid access, were seized.

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According to the petitioners, though they were detained on 09.05.2017 but they were shown arrest on 11.05.2017 by the Custom Authority under Section 104 of Customs Act, 1962. The petitioners though have alleged that there was a clear violation of Article 22 of the Constitution of India but Mr. Lodh, learned counsel has not agitated those aspects of the matter.

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There is no dispute that a case was registered under Section 104 of the Customs Act, 1962 for preparation of the

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W.P.(C) No.705 of 2017 W.P.(C) No.707 of 2017 W.P.(C) No.708 of 2017 W.P.(C) No.709 of 2017

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Page 5 of 10

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[6]

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inventory of the seized goods (the US Currency) and after preparation of the inventory, the said case has been disposed of in accordance with law, by the Chief Judicial Magistrate, Agartala, West Tripura. At the instance of the petitioners, another case was registered being Misc. Case No. 1482 of 2017 for releasing them on bail.

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After hearing, the counsel for the petitioners the Chief Judicial Magistrate, West Tripura, Agartala released them on bail on personal bond. But the passports those were seized and impounded were not released. The Chief Judicial Magistrate has transferred the case to the Judicial Magistrate, Court No.7, Agartala West Tripura, for hearing on the plea of releasing the pass port and passing the necessary orders. On 17.05.2017, the said Judicial Magistrate heard the counsel of the petitioners as well as of the Customs and fixed the date on 22.05.2017 for order. By the order dated 22.05.2017, the said Judicial Magistrate, Court No.7 Agartala, West Tripura has observed, interalia, as under :

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“Hence, the petition of the accused persons, namely, Sajibur Rahman, Parimal Saha, Abdul Kalam Azad and Mohammad Ali for returning their passports are allowed. // The accused persons are allowed to get their passports back by executing a Personal bond of Rs.10,000/- each with an assurance that they will produce their Passports before the Customs Authority as and when called for by the Customs Authority.

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// It is further directed that, the accused persons will not flee from the course of justice as per the order dated 11.05.2015.

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// The customs authority is hereby asked to return the Bangladesh Passports (bearing No.BK0474261, BM-0699719, BN-0898484 & BL-0709529) to the accused persons within 7 days, after retaining a duly attested photocopies of the passports for producing as secondary evidence in the future, if necessary.

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W.P.(C) No.705 of 2017 W.P.(C) No.707 of 2017 W.P.(C) No.708 of 2017 W.P.(C) No.709 of 2017

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Page 6 of 10

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[7]

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Thus, the petition of the accused persons is hereby allowed.”

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Against the said order, no legal action was carried out by the Customs. When the petitioners appeared to cross the International Border at Srimantpur, the immigration authority denied to give them clearance to cross the border and to enter to their country i.e. Bangladesh.

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Jointly, the petitioners filed a petition before the Superintendent of Police, Special Branch, Agartala Tripura for allowing them to leave India and to return to their own country on 27.05.2017 but no order or any communication was made by the Superintendant of Police, Special Branch, Agartala. As a result, through Mr. S. Lodh, learned counsel they issued a notice to the said Superintendent of Police informing that the petitioners were not only facing serious financial crisis but the visas as issued in their favour would expire shortly. Visa of one of the petitioner namely Mohammad Ali would expire on 03.05.2017.

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In response to the lawyer’s notice dated 12.06.2017, the SP, SB informed that the petitioners were released on bail with condition that “the accused persons will not flee from the course of justice as per the order dated 11.05.2017.” Further, he has recorded in his reply dated 14.06.2017 as follows :

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“After that, we enquired with the Custom Authority, whether their exit from India will hamper in any way the investigation of the case as referred above and it is clarified by the Customs authority that “it will hamper the investigation of the case if the accused persons leave the country.”

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So Leave India Permission in respect of the subjects may not be granted up to the completion of the case.”

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W.P.(C) No.705 of 2017 W.P.(C) No.707 of 2017 W.P.(C) No.708 of 2017 W.P.(C) No.709 of 2017

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Page 7 of 10

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[8]

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Clearly, both the Customs Authority and Superintendant of Police, SB have acted in excess to their jurisdiction. The competent court while releasing them on bail or at the time of release of their passport attached no condition in that regard and those authorities do not have any power to sit over the decision of the court. The Custom Authority, however, for their proceeding may issue notice/summon to the petitioners. Even from the written instruction as furnished by the Custom Authority to Mr. Chakraborty, learned Addl. G.A., through the Superintendent of Police, Special Branch, it is seen that no notice had been issued to the petitioners to appear before them. But visa of one of the petitioners is going to expire on 03.07.2017. Neither of the authorities as stated above has taken any step for extension of their visa. For any action of the respondents, those Foreign Nationals, who are entitled to all benefits of Article 21 of the Constitution of India, cannot be pushed to commission of a further offence.

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Mr. S. Chakraborty, learned Addl. G.A. appearing for the respondents has contended that if they are allowed to leave the Indian soil, the investigation would be at peril. In this regard, he has shown the observation made by the Judicial Magistrate while releasing the petitioner’s passports. The proceeding in the Custom Authority has commenced under Section 111 of the Customs Act, 1962 in respect of the seized goods. The consequence of such proceeding is well known.

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W.P.(C) No.705 of 2017 W.P.(C) No.707 of 2017 W.P.(C) No.708 of 2017 W.P.(C) No.709 of 2017

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Page 8 of 10

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[9]

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This court does not find any impediment in allowing the petitioners to legally cross the international border by virtue of their passport and on obliging the condition of visa. However, apprehension that has been expressed from the Custom Authority requires some observations to be made. The petitioners have, through their counsel, band them by certain conditions consciously, such as the Customs Authority will be entitled to issue “Notice” or “Summon” on the petitioners on the address given in their passports and since the High Commission of India has issued them the visa with multiple entries to India, the said address is definitely known to the High Commission of India at Dhaka, Bangladesh. Thus, if any notice is sent by the registered post to those addresses by the Custom Authority, on tender itself it has to be deemed those notices has reached the petitioners. The presumption of service would be available to the Customs Authority after the reasonable time as provided under Section 27 of the General Clauses Act.

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The petitioners as represented by Mr. Lodh, learned counsel, have clearly submitted that they have no inhibition to this clause and they would cooperate with the inquiry as would be carried out by the Customs Authority. Else, the consequence would follow and they would not plead prejudice. Having observed thus, the authorities including the respondents are directed not to obstruct the petitioners to cross the International Border by virtue of their passport and visa as provided by the High Commission of India at Dhaka.

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W.P.(C) No.705 of 2017 W.P.(C) No.707 of 2017 W.P.(C) No.708 of 2017 W.P.(C) No.709 of 2017

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Page 9 of 10

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[10]

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The petitioners are at liberty to apply to the competent authority for extension of their visa.

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Before parting, it is to be noted that there is no criminal case against the petitioners.

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In terms of the above, all these writ petitions are

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allowed.

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A copy of this order shall be supplied to the learned

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counsel appearing for the parties in the course of the day.

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No order as to costs.

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JUDGE

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Sabyasachi. B

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W.P.(C) No.705 of 2017 W.P.(C) No.707 of 2017 W.P.(C) No.708 of 2017 W.P.(C) No.709 of 2017

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Sagibur Rahaman @ Sajbur Rahaman v. the State of Tripura and Ors.

Case brief

What is this about?

What did the court decide?

Sagibur Rahaman @ Sajbur Rahaman v. the State of Tripura and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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