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2008 DIGILAW 820 (GAU)

Md. Abdul Hasim v. Union of India

2008-11-27

BIPLAB KUMAR SHARMA

body2008
JUDGMENT B.K. Sharma, J. 1. This proceeding is in continuation of the order of the judgment and order dated 23.7.2008 passed in the writ petition being WP(C) No. 1102/2008 (Md. Abdul Hasim v. Union of India and Ors.). The Petitioner, a Bangladeshi national had filed the writ petition challenging the order of the Foreigners Tribunal, Hojai in FT. Case No. 6/2006 declaring him a foreigner entering India after 25.3.1971 and illegally staying in India without any valid documents and thus, liable to be deported forthwith. The proceeding before the Tribunal, apart from being against the Petitioner was also in respect of the brother of the Petitioner and his family members, who are Abdul Kashem (stated to be dead), his two wives namely, Sarjuban Bibi and Hasna Banu and two sons and two daughters namely, Faruk Ali, Bilal Ali, Rahima Khatun and Anowara Khatun. As noted in the judgment, the brother of the Petitioner along with the family members have already done the vanishing act way back in 1999 when the proceeding before the Tribunal was going on. After declaring the Petitioner and his brother with his family members named above as foreigners by the Tribunal, the Petitioner approached this Court by filing the aforesaid writ petition challenging the order of the Tribunal. As noted in the judgment, the writ proceeding made shocking revelations. In this connection, paragraph 1 of the judgment is quoted below: The Petitioner, who has been declared as foreigner by the Foreigners Tribunal has invoked the writ jurisdiction of this Court challenging the order of the Tribunal. This writ proceeding makes shocking revelations as to how a foreign national (Bangladeshi national) taking recourse to falsity, forgery and manipulation has been living in Assam, India for years together. He has not only become a voter, but has also obtained passport at a time when the proceeding before the Tribunal was still pending, because of laxity and indifferent attitude on the part of the authorities. Taking advantage of long delay in disposal of the proceeding before the Tribunal and 'go as you like' kind of approach on the part of the authorities, the brother of the Petitioner and his family members numbering 8, who were also involved in the proceeding have already done the act of vanishing way back in 1999. 2. The Petitioner obtained a passport from the Regional Passport Office, Guwahati fraudulently by producing fake documents. 2. The Petitioner obtained a passport from the Regional Passport Office, Guwahati fraudulently by producing fake documents. The indifferent attitude of the authority helped him immensely in obtaining the passport. Although the Petitioner is illiterate but in the application form submitted before the passport office, he had enclosed fake school certificate and also the ration card. The police without any cross-verification, certified the Petitioner to be an Indian citizen in the passport application. Likewise, the Regional Passport Office readily issued the passport ignoring the apparent discrepancies in the documents submitted along with the filled in application form. In this connection, the judgment observed thus: 34. The aforesaid discrepancies are so glaring that it cannot escape the notice of any prudent man, more particularly, the authorities of the Regional Passport office entrusted with the solemn duty of issuing passport to genuine Indian citizens. On being asked, the Regional Passport Officer simply explained that the passport was issued solely on the basis of the police report furnished. Let us now see what was the police report. Before that it would be appropriate to refer to Clause 9(a) of the application form which reads "please give the date since residing at the above-mentioned address". This column was not filled up and remained blank and yet escaped the notice of the authorities of the passport office, as it escaped their notice that in the Ration Card the father's name indicated is Mubarak Ali and not Makaram Ali as reflected in the application form. 36. Due to the aforesaid callous approach on the part of both the police authority as well as the passport authority, the Petitioner, a foreigner (Bangladeshi National) could get the Indian passport, which is a solemn document to testify one's Indian citizenship. A Bangladeshi national, who the Petitioner is, could get the passport with the self-declaration, which is a solemn declaration for every Indian citizen that he owes allegiance to the sovereignty, unity and integrity of India. This is how, the sovereignty of India is being protected by the authorities. 43. A Bangladeshi national, who the Petitioner is, could get the passport with the self-declaration, which is a solemn declaration for every Indian citizen that he owes allegiance to the sovereignty, unity and integrity of India. This is how, the sovereignty of India is being protected by the authorities. 43. The Petitioner, thanks to the police intelligence, delay in the proceeding before the tribunal (long 20 years), and laxity on the part of the passport officials in such an important task of issuance of passport only to Indian citizens, could obtain the passport by suppressing the proceeding before the Tribunal by submitting filled in application form through others who also signed the same in the relevant columns in the name of the Petitioner. Clause 21 of the application form under which the Petitioner showed to have signed reads as follows: 21. Self declaration. - I owe allegiance to the sovereignty, unity and integrity of India and have not voluntarily acquired the citizenship of travel document of any other country. I have not lost, surrendered or been deprived of citizenship of India. The information given by me in this form and enclosures is true and I am solely responsible for accuracy. I am aware that it is an offence under the Passport Act, 1967 to furnish any false information or to suppress any material information with a view to obtaining passport or any other travel document. I further declare that I have no other passport/travel document. 44. If the sovereignty, unity and integrity of India are being upheld in the above manner by the authorities entrusted with the task, it is easily conceivable as to what is in store for Assam. 3. While upholding the order of the Tribunal, this Court by its aforesaid judgment and order dated 23.7.2008 issued the following directions: (I) The Respondent No. 4 i.e. the Superintendent of Police, Nagaon shall ensure immediate custody of the Petitioner. He will remain in such custody till deported to Bangladesh. The direction for custody is to ensure that the Petitioner also does not do the act of vanishing like that of his other family members. He will remain in such custody till deported to Bangladesh. The direction for custody is to ensure that the Petitioner also does not do the act of vanishing like that of his other family members. (II) The Respondent No. 4 shall also ensure that all others involved in FT Case No. 6/2006 who are the Petitioner's brother and his family members named above and so also in the judgment of the Tribunal, are found out and taken into custody for deportation to Bangladesh. (III) The Respondent No. 4 will also ensure initiation of proceeding in respect of others connected with the Petitioner and suspected to be foreigners and shall also ensure that such of the persons suspected to be foreigners do not do the act of vanishing. (IV) The Respondent No. 4 shall furnish report in respect of compliance of direction No. (I), (II) and (III) above by the next date fixed. (V) The Director General of Police, Assam shall furnish report as to what action he proposes to take in the matter of furnishing report by the police to the passport office in the matter of issuance of passport. (VI) The DGP, Assam shall also furnish report as to how the police could certify the Petitioner to be an Indian citizen when the proceeding against him was pending before the Tribunal upon a reference made by the police itself. (VII) The Regional Passport Officer shall furnish report as to how the Petitioner could be issued passport with the materials against him so glaring on the face of it and discussed above. (VIII) The Regional Passport Officer as well as the Ministry of External Affairs, Government of India shall also furnish report as to what measures they propose to take in the matter of issuance of passport, so that there is no repetition of this nature in future. (IX) The Registry shall keep the passport issued to the Petitioner in sealed cover and safe custody till the same is collected by the Regional Passport Office, Guwahati through its responsible officer on furnishing proper identity and due acknowledgement. The Regional Passport Officer shall ensure immediate collection of the passport from the Registrar General of this Court with the assistance of Ms. B. Das, learned CGSC for taking necessary follow up action as per the provisions of the Passport Act, 1967. 55. The Regional Passport Officer shall ensure immediate collection of the passport from the Registrar General of this Court with the assistance of Ms. B. Das, learned CGSC for taking necessary follow up action as per the provisions of the Passport Act, 1967. 55. Let the matter be listed again on 30.9.2008 for furnishing the reports by the authorities in terms of the aforesaid directions. 4. When the matter was listed on 30.9.2008. It was noticed that no reports had been submitted by the Director General of Police Assam and the Superintendent of Police, Nagaon, although two reports one by the Regional Passport Officer and another by the External Affairs Ministry through the Regional Passport Office had been filed. After the long Puja vacation, the matter was listed on 12.11.2008, but without any report from the DGP Assam and the SP Nagaon. The Registry by its note dated 11.11.2008 stated thus-"No any report has been received by the section concerned". It is an admitted position that when this Court passed the order dated 12.11.2008, there was no report either from the DGP Assam or from the SP Nagaon. Situated thus., the Court passed order with a direction for personal appearance of the DGP Assam and the SP Nagaon. 5. The reports furnished by the Regional Passport Officer and the External Affairs Ministry through the Regional Passport Officer are reproduced below: Report by the Regional Passport Office, Guwahati, in accordance with para 54(VII) of judgment in writ petition (C) No. 1102/08. The passport was issued to the Petitioner on the basis of a clear police report received by the Regional Passport Office, Guwahati. In the report, it has been stated in two places that the Petitioner is an Indian national. In addition at serial No. (iii) of the "Identity Verification of Passport Applicant" document, which is referred to the Police authorities, and which queries "is there any reason to believe that applicant is not a citizen of India", it has been ticked and initialed as "No" by the verifying official. On the point about the blank column 9(a) which asked for the details of the date since residing at the present address, it appears that since the 'present residential address', 'place of birth' as well the 'permanent address' are the same, this column was not insisted upon. On the point about the blank column 9(a) which asked for the details of the date since residing at the present address, it appears that since the 'present residential address', 'place of birth' as well the 'permanent address' are the same, this column was not insisted upon. As regards the discrepancies in the Ration Card and the School Transfer Certificate, there was a lapse on the part of the officials who did not examine the papers thoroughly, but relied mainly on the police report. However, it may be noted that this occurred in the time of the previous Regional Passport Officer. Since last year and especially after the judgment, suitable instructions have been given to ensure strict scrutiny. Furthermore, incomplete applications are no longer being accepted. The passport of the Petitioner has been revoked and cancelled under the Passport Act, 1967. * * * Report by Ministry of External Affairs, Government of India, New Delhi and Regional Passport Office Guwahati, in accordance with para 54 (VIII) of judgment in Writ Petition (C) No. 1102/08. The Passport Act was amended in 1993 by incorporating a new Sub-section 12(1A) prescribing stiffer penalties, including imprisonment up to five years, to a foreigner who applies for or obtain an Indian Passport by suppression of information about nationality. With a view to minimizing the chances of an applicant against whom any negative information is available, obtaining a passport, the index checking process has been computerized in 2001; passport information services on net (PISON) has been set up in 2003 through which all passport officers and Indian Embassies abroad can very particulars in respect of a passport issued under computerized system through internet, and introduced printing of passport with scanned photo and signature (in lieu of hand written passport with pasted photo and signature). Earlier in 1997, machine readable passport with enhanced security features was introduced. Taking these steps further, the Minister plans to introduce e-passport in the ordinary category of passports with biometric features. Accordingly, under the passport seva project, which is expected to be implemented by end 2009, each passport applicant has to personally call at the passport facilitation centers, which would be set up, to submit passport application, take picture, sign and for finger printing. Each applicant also needs to bring original documents which would be subjected to thorough scrutiny by the officials. Each applicant also needs to bring original documents which would be subjected to thorough scrutiny by the officials. Along with this a nationalized computerized index checking (against passport office-wise computerized index check in force at present) would be introduced. It is expected that the above measures will prevent the chances of a foreigner obtaining an Indian passport or Indian citizens obtaining multiple passports. However, the passport offices rely on documents submitted by the applicants and the police verification for the purpose of issue of passports. 6. Feeling the brunt of the direction for personal appearance, the DGP Assam and the SP Nagaon have filed two separate Misc. Cases being MC case No. 3166/2008 and MC 3167/2008 respectively praying for dispensation of their personal appearance. As per the statements made in the applications, the DGP's report could be made ready only on 15.11.2008 i.e. after the order dated 12.11.2008 was passed. In the application, it has also been stated that the report has been vetted by the Home Department of the Government of Assam. 7. So far as the SP Nagaon is concerned, he has stated in the application that as per the direction of this Court, the report was sent to the Senior Government Advocate, Assam vide letter dated 23.9.2008 i.e. well ahead of the fixed date which was 30.9.2008. It is his case that since the report was not placed before the Court, the Court was of the opinion that the report had not been furnished by the PS Nagaon. In paragraph 4 of the application, it has been stated that as per the advice of the learned Senior Govt. Advocate, it was thought prudent to place the report along with the report of the DGP. Thus, as per the application filed by the SP Nagaon, he was not at all responsible for last submission of the report in the Court. 8. The aforesaid applications were taken up on 19.11.2008 and on the request of the learned State counsel, the matter was adjourned to 20.11.2008, on which date, a request was made to fix another date for personal appearance of both the officers on the ground that the) be out of station on the date fixed i.e. 21.11.2008. The prayer was allowed and the matter was fixed today (27.11.2008). Both the officers, namely Mr. R.N. Mathur, DGP, Assam and Mr. The prayer was allowed and the matter was fixed today (27.11.2008). Both the officers, namely Mr. R.N. Mathur, DGP, Assam and Mr. Nitul Gogoi, S.P., Nagaon are present in the Court in terms of the said order. They have been generally questioned with the assistance of Mr. K.N. Choudhury, learned Additional Advocate General, Mr. A. Thakur, learned Sr. Govt. Advocate and Ms. R. Chakraborty, learned Additional Sr. Govt. Advocate, on the implementation of the directions of this Court, as contained in the judgment and order dated 23.7.2008. They have also been asked as to whether after making request to the learned State counsel to pray for adjournment on 30.9.2008, they were in touch with him to know the next date fixed. Their reply is in the negative. Thus, here is a case, in which both the DGP Assam and the SP Nagaon, although were aware of the date fixed, which was 30.9.2008, they never enquired as to whether the adjournment, which was to be prayed for, had been prayed and if prayed, whether the same was granted and if granted, what was the next date fixed. 9. So far as the implementation of the direction of this Court is concerned, they have referred to the aforesaid Misc. applications and the documents annexed thereto, which include the reports, as was directed to be furnished by this Court by the aforesaid judgment and order. 10. As per the report of the SP, the Petitioner is not traceable and all out efforts are being made to apprehend him. As per the statements of Md. Ruhul Amin, the son of the Petitioner, made before the police on 29.7.2008, the Petitioner's family consists of 5 sons and 5 daughters. One of his sons namely Md. Jakir Hussain has gone to Saudi Arabia, about a year back. Further statement made by him and his brother Dilwar Hussain before the police is that the Petitioner had gone out of home on 28.7.2008 and since then, has not returned. In the report, there is mention of the efforts being made to trace out the Petitioner and the family members of his brother. It has also been stated that intimation has been furnished to the Deputy Commissioner (election) to delete the names of the Petitioner and his brother's family members from the electoral roll. Such intimation was sent on 14.8.2008. In the report, there is mention of the efforts being made to trace out the Petitioner and the family members of his brother. It has also been stated that intimation has been furnished to the Deputy Commissioner (election) to delete the names of the Petitioner and his brother's family members from the electoral roll. Such intimation was sent on 14.8.2008. However, it is not known as to whether the Deputy Commissioner (Election) Nagaon has in fact deleted the names of the said foreign nationals from the voter list. By the next date, the SP will ascertain the same. 11. As indicated in the judgment and order dated 23.7.2008, the family members of the brother of the Petitioner did the vanishing act way back in 1999 when the proceeding in the Tribunal was going on. Thus during the interregnum they must have cast their votes with scores of such foreign nationals with the resultant effect of having a say in electing members both to the Parliament and Legislative Assembly. 12. The report furnished by the DGP Assam depicts total non-application of mind. In his report, he has described the Petitioner as a Pakistani national, although he is not. He is a Bangladeshi national. Even a common man reading the orders of the Tribunal as well as of this Court will understand that, but alas not the DGP, who is occupying the highest position in the State Police Administration under the Home Department of the State. Ironically, the report of the DGP has the approval of the Home Department, Govt. of Assam. If this is the State intelligence, it is all but natural that a Bangladeshi national can easily enter and stay in Assam and when the situation demands do the vanishing act, as has been easily done by the Petitioner in the instant case. If the search is made of the Petitioner as a Pakistani national, instead of Bangladeshi national, the result thereof certainly would be one as reflected in the report of the SP. 13. Such casual approach to the matter cannot be appreciated. There is apparent laxity, latitude and indifferent attitude on the part of the authority to the gravity of the whole matter. 13. Such casual approach to the matter cannot be appreciated. There is apparent laxity, latitude and indifferent attitude on the part of the authority to the gravity of the whole matter. Because of such approach to such a sensitive matter seriously telling upon the very demographic pattern of the State, there is now imminent threat of reducing the indigenous people of Assam to minority in their own State, a fact so vividly discussed and emphatically emphasized by the Apex Court in Sarbananda Sonowal (I) case AIR 2005 SC 2920 . In Para-38 of the judgment, it has been observed thus: 38. This being the situation there can be no manner of doubt that the State of Assam is facing "external aggression and internal disturbance" on account of large scale illegal migration of Bangladeshi nationals. It, therefore, becomes the duty of Union of India to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution. Having regard to this constitutional mandate, the question arises whether the Union of India has taken any measures for that purpose. 14. Likewise, in Sarbananda Sonowal (II) case (2007) 1 SCC 174 , the Apex Court observed that there is lack of will in the matter ensuring that the illegal migrants are sent out of the country. In Para-64 of the judgment, it has been observed thus: 64. In the face of the clear directions issued in Sonowal I it was for the authority concerned to strengthen the Tribunals under the 1964 Order and to make them work. Instead of doing so, the 2006 Order has been promulgated. It is not as if the Respondents have found the 1964 Order unworkable in the State of Assam; they have simply refused to enforce that Order in spite of directions in that behalf by this Court. It is not for us to speculate on the reasons for this attitude. The earlier decision in Sonowal I has referred to the relevant materials showing that such uncontrolled immigration into the North-Eastern States posed a threat to the integrity of the nation. It is not for us to speculate on the reasons for this attitude. The earlier decision in Sonowal I has referred to the relevant materials showing that such uncontrolled immigration into the North-Eastern States posed a threat to the integrity of the nation. What was therefore called for was a strict implementation of the directions of this Court earlier issued in Sonowal I so as to ensure that illegal immigrants are sent out of the country, while in spite of lapse of time, the Tribunals under the 1964 Order had not been strengthened as directed in Sonowal I. Why it was not so done, has not been made clear by the Central Government. We have to once again lament with Sonowal I that there is a lack of will in the matter of ensuring that illegal immigrants are sent out of the country. 15. The callous and indifferent attitude of the authorities in the matter is well reflected in the aforesaid observations of the Apex Court. Recently, a Central team comprising the officials of the Ministry of Home Affairs and Ministry of External Affairs, while visiting the Indo-Bangla Border in the Karimganj Sector found that number of Bangladeshi nationals who had entered Assam with visas did not go back and their whereabouts were not known. As per the report, the Central team also noticed several anomalies and irregularities in the visas, passports and other documents. As per the report, the police has not shown any seriousness in the matter. It is for the police laxity, inaction and indifferent attitude that Bangladeshis can easily disappear and melt into vast magnitude. There is nothing unusual in it, when the police has failed to nab the Petitioner, a Bangladeshi national, who has been declared to be so by both the Tribunal and this Court and when he could remain in Assam playing fraud and mischief. He even filed writ petition in this Court and once appeared in person. 16. On being asked, as to how in the report, the Petitioner could be described as a Pakistani national although he is not, but a Bangladeshi national, the DGP has stated that it was mistake on his part. If the State Administration is not in a position to nab the Petitioner, a Bangladesh national and his brother's family members, also Bangladeshi nationals, it is a matter of shame for it. If the State Administration is not in a position to nab the Petitioner, a Bangladesh national and his brother's family members, also Bangladeshi nationals, it is a matter of shame for it. Perhaps in no other Country in the world, foreigners can play such trick. It is only in Assam, foreigners can easily vanish and the authorities remain silent spectators with the defence that they are not traceable. Lack of any serious efforts stares on the face of it. 17. Apart from such inaction, the present situation has arisen, because of the fact that, there is no stringent provision and/or action to deal with foreigners, existence of which in Assam is huge, a fact so vividly depicted in Sarbananda Sonowal's case by the Apex Court. A foreigner can enter into Assam and even if detected can have the luxury of Indian citizen's existence with voting right. There is no practice and procedure of his detention before trial by the Tribunal. Even after detection as a foreigner he enjoys all the fundamental rights guaranteed under Chapter III of the Constitution including the right of doing the vanishing act, once declared as foreigner. 18. What is required is the immediate detention, once suspected to be a foreigner and early conclusion of proceeding relating to the Reference which is to be made to the Foreigner Tribunal in respect of the person. He must not be released till all the proceedings come to an end. 19. The State and the Central Government should do well to take prompt action towards establishing adequate detention camps to detain the suspected foreigners till they are declared as Indian citizens or otherwise. Such a step will ensure early disposal of the proceedings inasmuch as in case of detention, the detainee will not be in a position to delay the disposal of the proceeding. Otherwise, apart from doing the vanishing act, they may also delay the proceeding on this or that pretext as is the experience of this Court in such matters. Refer 2008 (3) GLT (Sarabari Begum v. State of Assam). Such steps will also help in reducing the burden of the children of the foreigners and the scope of legalizing their existence in Assam. In this connection, the authorities may refer the provisions of the Foreigners (Internment) Order, 1962. 20. In the instant case, as per the report of the SP, the Petitioner has 10 (ten) children. Such steps will also help in reducing the burden of the children of the foreigners and the scope of legalizing their existence in Assam. In this connection, the authorities may refer the provisions of the Foreigners (Internment) Order, 1962. 20. In the instant case, as per the report of the SP, the Petitioner has 10 (ten) children. The order of the Tribunal upheld by this Court is not in respect of those children. Thus the dangerous situation can well be imagined. Even if, a foreigner is detected and deported, he will leave behind his children, who will remain as burden for Assam. As a natural human instinct and behaviour, they will normally owe allegiance to their parents and consequently to a foreign country, dangerous effect of which can very well be imagined including possibility of terrorist activities. 21. At this stage, Mr. Gogoi, SP Nagaon submits that 3 (three) of the family members of the brother of the Petitioner namely, (1) Musstt. Surajban Bibi (45) wife of Abdul Kasem, (2) Musstt. Rohima Khatun (25) daughter of Abdul Kasem and (3) Musstt. Anowara Khatun (19) daughter of Abdul Kasem have been apprehended in compliance with the direction of this Court. They have been sent to Mahisasan PPCP for pushing back to Bangladesh by B.S.F. perhaps, they could be apprehended because of the insistence of this Court and monitoring of the matter, but for which they would not have come to light. Be that as it may, I place on record, the good work done by him so far in the matter. It is expected that in the same vein, the SP Nagaon will make all efforts to apprehend such other foreigners including the Petitioner and others involved in this proceeding. 22. Considering all the above, it is hereby directed that the State and the Central Government in the concerned departments will take immediate action to apprehend the Petitioner and others involved. They will also bear in mind the observations made above towards early detection and deportation of foreigners and shall ensure that such foreigners do not do the vanishing act. 22. Considering all the above, it is hereby directed that the State and the Central Government in the concerned departments will take immediate action to apprehend the Petitioner and others involved. They will also bear in mind the observations made above towards early detection and deportation of foreigners and shall ensure that such foreigners do not do the vanishing act. The DGP, Assam and the SP, Nagaon shall furnish further report as to what action they propose to take against the family members of the Petitioner who are his off springs and others connected with him, who may also be Bangladeshis and/or instrumental abetting the crime of the Petitioner is remaining in India even after detection as a illegal Bangladeshi national and thereafter doing the vanishing act. They may also investigate as to who was instrumental in getting the Petitioner, the Indian passport by playing fraud. Such investigation may also reveal as to whether the passport obtained by his aforesaid son stated to be in Saudi Arabia was similarly obtained by playing fraud. As per the report of the SP, he has already taken action against the wife of the Petitioner by way of making a reference to the Foreigners Tribunal. 23. Personal appearance of the DGP, Assam and SP, Nagaon is dispensed with for the Respondents. List again in the 1st week of January, 2009 for furnishing further reports by the DGP, Assam and the SP, Nagaon. It is expected that no more excuses will come from them with the failure to apprehend the Petitioner and his brother's family members. 24. Let copies of this order be sent to the Central and State Government in the Ministry of Home as well as to the Chief Secretary of the State for necessary follow up action. Appeal allowed.