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No effort to probe if detained Bangladeshi women are victims of human trafficking

Counterview Desk

In a complaint to the chairman, National Human Rights Commission (NHRC), West Bengal-based civil rights leader Kirity Roy, secretary, Banglar Manabadhikar Suraksha Mancha (MASUM), and national convenor, Programme Against Custodial Torture & Impunity (PACTI), has taken strong exception to the detention of Bangladeshi women in West Bengal and accusing and treating them as criminals under Foreigners Act, 1946.
Giving specific examples, Roy regretted, the authorities least concerned to "enquire into whether the persons including women and children crossed the border from Bangladesh to India were the victims of human trafficking." He added, "Our fact finding reveals that the arrested Bangladeshi women entered India for the purpose of working in India as they are terribly poverty-stricken people with no jobs in Bangladesh."

Text:

I am writing this complaint regarding detention of Bangladeshi women in West Bengal and accusing and treating them as criminals under Foreigners Act, 1946. Since long MASUM is trying to bring the systematic violation of laws by the BSF and police administration into light by making numerous complaints to the NHRC and other relevant departments.
The authorities including police and Border Security Force are not at all concerned to enquire into whether the persons including women and children crossed the border from Bangladesh to India were the victims of human trafficking or not. Here I am appending two case details for your perusal.
Case 1:
In connection with Swarupnagar Police Station Case no. 139/2022 dated 19.02.2022 under section 14 of Foreigners Act, the following Bangladeshi woman was arrested:
1. Ms. Taniya Khatun, wife of Abu Bakkar Siddiwue, Aged - 25 years, residential address:- Village – Jhaudanga, Post Office – Baliadanga, P.S – Kalaroa, District - Satkhira, Bangladesh.
The victim is a Bangladeshi national, who was trying to enter India from Bangladesh on 19.02.2022 at around 8:30 a.m. when she was apprehended by BSF personnel, attached with 112 Battalion, ‘F’ Coy, Hakimpur BSF BOP and handed over to Swarupnagar Police Station. The victim was produced before the Basirhat ACJM court on 19.02.2022 and sent to the Dumdum Central Correctional Home for 14-day jail custody. It was revealed that earlier she worked as a daily laborer in a brick field at Haroa, West Bengal.
In connection with the above referred case I want to mention that in the written complaint copy of the BSF it is mentioned that on 19.08.2022 at about 8.30 hrs. BSF Constable no. 130600637 Mr. Suresh Kumar and BSF Constable no. 131602225 Mr. Rajeev Baruah apprehended Ms. Taniya Khatun. 
But why BSF informed the police after 6 hours of the incident i.e, at 14.35 hrs. It is the duty of the BSF to inform the police regarding the apprehension of any accused as early as possible after the apprehension. But why BSF delayed 6 hours to inform the police in connection with the apprehension of Ms. Taniya Khatun.
Case 2: 
In connection with Swarupnagar Police Station Case no. 34/2022 dated 13.01.2022 under section 14 of Foreigners Act, the following Bangladeshi women were arrested:
1. Ms. Muskan Khan, daughter of Hasan Khan, Aged - 34 years, residential address:- Village – Raghunathpur, Post Office – Singhasurpur, P.S – Kalia, District - Narail, Bangladesh.
2. Ms. Soniya Khan, daughter of Hasan Khan, Aged - 22 years, residential address:- Village – Raghunathpur, Post Office – Singhasurpur, P.S – Kalia, District - Narail, Bangladesh.
3. Ms. Nipa Khatoon, daughter of Abdul Razzaq, Aged - 31 years, residential address:- Village – Beltala, Post Office – New Market, P.S – Kotwali, District - Jessore, Bangladesh.
4. Ms. Sharmin Akhtar, daughter of Abdul Rajjak, Aged - 28 years, residential address:- Village – Bahadurpur, Post Office and P.S – Kotwali, District - Jessore, Bangladesh.
The victims were the Bangladeshi nationals, who were trying to enter India from Bangladesh on 13.01.2022 at around 12:30 p.m when they were apprehended by BSF personnel attached with 112 Battalion, ‘A’ Coy, Tarali BSF BOP and later sent them to Hakimpur BOP and to handed over to the Swarupnagar Police Station. The victims were produced before the Basirhat ACJM court on 14.01.2022 and sent to the Dumdum Central Correctional Home for 14-day jail custody. It was revealed that they came to India in search of job.
In connection with this case we peruse the written complaint of the BSF and FIR registered by the Swarupnagar Police Station on the basis of that written complaint. Here the incident occurred and apprehension of those accused person by the BSF on 13.01.2022 at about 05.15 hrs but BSF informed the police after more than 18 hours i.e, at 23.35 hrs dated 13.01.2022.
In the FIR copy no reason was mentioned for this delay by BSF. For more than 18 hours these women victims were under BSF custody. This is illegal. General rule is BSF inform the concerned police regarding the apprehension of any accused as early as possible after his apprehension.
Section 57 of the Code of Criminal Procedure and Article 22 (2) of the Constitution of India mandated that any person arrested or detained should be produced before the concerned judicial magistrate within 24 hours of her apprehension. In connection with this case BSF violated this rule and these women victims were produced before the ACJM, Court Basirhat after more than 30 hours of their apprehension.
In addition, during the time of their production before the judicial magistrate, 2 male escort party members constable no. 208 Mr. Dipankar Mondal and constable no. 426 Biswadev Kundu took them before the Basirhat court. Why any female constable was not present in the escort party?
Our fact finding reveals that the arrested Bangladeshi women entered India for the purpose of working in India as they are terribly poverty-stricken people with no jobs in Bangladesh. In several other instances they also enter India for the purpose of medical treatment as there are limited facilities in Bangladesh.
Most of them work as domestic helper, construction worker and hotel workers in various locations of India. The victims are either trying to enter India through the border or return to their home in Bangladesh with the help of local touts, involved in cross border illegal movements (both side of the border), when they are being arrested by the Border Security Force (BSF) personnel.
These touts / middlemen / DHURS are operating in connivance with border guards of both sides, India and Bangladesh. The Bangladeshi persons arrested were treated as accused under the Foreigners Act and no attempt is being taken up by the police or the concerned court to ascertain whether they were the victims of human trafficking or not.
Such approach of the criminal justice system is against the advisory issued by the Government of India vide office memorandum No. 14051/14/2011-F.VI of Ministry of Home Affairs (Foreigners Division) Government of India Dated 1st May, 2012 clearly states as “(IV) it is seen that in general, the foreign victims of human trafficking are found without valid passport or visa. If, after investigation, the woman or child is found to be a victim, she should not be prosecuted under the Foreigners Act.
Authorities applying Foreigners Act on accused persons mechanically without giving importance to legitimate entitlements of those arrested
If the investigation reveals that she did not come to India or did not indulge in crime out of her own free will, the State Government / UT Administration may not file a charge sheet against the victim. If the charge sheet has already been filed under the Foreigners Act and other relevant laws of the land, steps may be taken to withdraw the case from prosecution so far as the victim is concerned.
Immediate action may be taken to furnish the details of such victims to the Ministry of External Affairs (Consular Division), Patiala House, New Delhi so as to ensure that the person concerned is repatriated to the country of her origin through diplomatic channels” and (v) During the interim period, pending repatriation, the victim may be taken care of in an appropriate children’s home, or “Ujjawala” home or appropriate shelter home either of the State Government concerned or of any NGO aided by the Government of India / State Government.’
This approach is also violating the Article 6, 7, 8, 11 and 12 of the MOU between The Government of the Republic of India and The Government of the People’s Republic of Bangladesh on Bilateral Cooperation for Preventing of Human Trafficking especially trafficking in Women and Children; signed by both countries on 30th May 2015.
I also want to mention that State agencies should pay respect to Constitution of India, in Article 51(c).
The present complaint reflects that the law enforcing agency by arresting the above stated persons and implicating them under the Foreigners Act as accused persons acted mechanically without giving any importance to legitimate entitlements of those arrested persons.
The incidents are not only violating the advisory of Government of India but in violation of Goal Number 16 of Sustainable Development Goals of UN, Government of India is a party to set the goals and obliged to adhere the same.
Under the circumstances I would request your authority to intervene in this present complaint and consider the following demands of justice for the victims: 
  • The whole matter must be investigated by one neutral investigating authority.
  • The concerned authority must be directed to hold an inquiry in compliance with the advisory issued by the Government of India vide office memorandum No. 14051/14/2011-F.VI of Ministry of Home Affairs (Foreigners Division) Government of India Dated 1st May, 2012 and pending the inquiry the victim women and children must not be treated as accused.
  •  The victim persons including children should be immediately repatriated to their own country and prosecution launched against them should be withdrawn at the earliest.
  • The constant flouting of advisory of Ministry of Home Affairs (Foreigners Division) Government of India by various components of criminal justice administration should be dealt with concern and offenders must be punished accordingly.
  • BSF and police administration strictly follow the provision of section 57 of the Code of Criminal Procedure and Article 22 (2) of the Constitution of India.

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