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2012 DIGILAW 1338 (GAU)

Abdul Barek (Md. ) v. State of Assam

2012-12-14

BIPLAB KUMAR SHARMA

body2012
JUDGMENT Biplab Kumar Sharma, J. 1. The challenge made in this writ petition is the order dated 04.07.2011 passed by the learned Foreigners' Tribunal, Nalbari in FT (Nal) Case No. 4356/2006 declaring the petitioner to be a foreigner as he failed to discharge the burden of proving otherwise as envisaged under Section 9 of the Foreigners' Act, 1946. I have heard Mr. G. Singh, learned counsel for the petitioner as well as Ms. R. Chokraborty, learned State counsel. I have also heard Mr. A. Hussain, learned CGC. I have also perused the entire materials on record including the two documents produced by the learned counsel for the petitioner at the time of hearing of the writ petition. 2. The reference against the petitioner made by the Police was received by the Tribunal as recorded in its order dated 25.06.2007. Notice to the petitioner was issued and the same was served on him as reflected in the order dated 05.02.2008. However, the petitioner had chosen not to respond to the proceeding as would be evident from the order sheet maintained by the Tribunal and available in the records received from the Tribunal. 3. Although the petitioner was given several opportunities, he did not appear before the Tribunal. This is evident from the orders passed by the Tribunal on 05.02.2008, 25.04.2008, 26.06.2008, 14.07.2008, 29.08.2008, 28.11.2008, 05.02.2009, 20.04.2009, 13.07.2009, 23.07.2009, 12.10.2009, 31.12.2009, 21.04.2010, 18.05.2010, 20.08.2010, 12.11.2011, 24.06.2011 and finally when the impugned order was passed on 04.07.2011. It will be pertinent to mention here that by order dated 21.04.2010 it was provided that the reference would be heard ex parte against the petitioner. It is also pertinent to mention here that when the petitioner did not appear on 14.07.2008, fresh notice was issued to him fixing the matter on 29.08.2008. Although notice was again duly served on him, he did not appear on the said date, i.e. 29.08.2008, as recorded in the order passed on that day. 4. To quell any doubt, I have verified the notices which were issued to the petitioner on two occasions, firstly on 11.10.2007 which was received by the petitioner on 09.12.2007. Similarly the second notice that was issued on 17.07.2008 and was received by the petitioner on 08.08.2008. 5. 4. To quell any doubt, I have verified the notices which were issued to the petitioner on two occasions, firstly on 11.10.2007 which was received by the petitioner on 09.12.2007. Similarly the second notice that was issued on 17.07.2008 and was received by the petitioner on 08.08.2008. 5. Contrary to the above position, the petitioner has made a false statement in paragraph-8 of the writ petition that no notice was ever served enabling him to participate in the proceeding before the Tribunal. It has also been stated that there is no evidence on record to show that the petitioner had received any notice from the Tribunal. During the course of hearing of the instant writ petition, Mr. G. Singh, learned counsel for the petitioner fairly submitted that the records would reveal that notice was duly served on the petitioner. However, he submitted that the endorsement regarding service of notice with date 09.12.2007 and 08.08.2008 may not be decisive of the fact as to when the notice was served. Such a statement is totally misplaced inasmuch as once the notice was served on the petitioner, it was incumbent on his part to appear before the Tribunal. As noted above, in the order dated 05.02.2008 the Tribunal noted that in spite of service of notice, the petitioner remained absent. Similarly on the second occasion also, when the petitioner remained absent after service of notice, the Tribunal recorded the same in its order dated 29.08.2008. On both the occasions, it was recorded by the Tribunal that the petitioner remained absent in spite of service of notice. 6. From the above it is crystal clear that the petitioner has taken recourse to falsehood in projecting his case to be one of passing the impugned order by the Tribunal without serving any notice on him. On this ground alone, the writ petition is liable to be dismissed. The petitioner who has been declared a foreigner cannot take recourse to falsehood in invoking the writ jurisdiction. 7. Irrespective of the above, I have considered the writ petition and the submission made by the learned counsel for the petitioner on its own merit. According to the petitioner, he is an Indian citizen by birth and a permanent resident of the District Nalbari. The only documents on which the petitioner have placed reliance are Annexures I and II to claim his Indian citizenship by birth. According to the petitioner, he is an Indian citizen by birth and a permanent resident of the District Nalbari. The only documents on which the petitioner have placed reliance are Annexures I and II to claim his Indian citizenship by birth. Annexure-I is the certificate dated 26.8.2011 purportedly issued by the Lat Gaonburah, Choto Alliya/Noumati Gaon (photo copy) containing the name of one Late Muslim Ali who is purportedly the father of the petitioner. During the course of hearing Mr. G. Singh, learned counsel for the petitioner has produced the purported school certificate issued by the Superintendent, Barajol High Madrassa certifying that the petitioner had left the Madrassa on 30.12.1989. Interestingly, the certificate states that his date of birth according to Admission Registrar was 14 years 2 months. It is not understood as to how the date of birth would be 14 years two months. The second document that was produced by the learned counsel for the petitioner is the photo copy of the voter list of 2005 of No. 59 Nalbari LAC Part-21 in which the name of one Abdul Barek, son of Innas appears at serial No. 271 showing his age as 38 years. 8. The purported school certificate is in a dilapidated condition. Even the name of the person concerned and his father's name are not legible and there is apparent overwriting. The petitioner cannot claim his Indian citizenship and that too, by birth on the basis of the said school certificate and the voter list and that too, without proving the same in the manner as required under the Evidence Act. The photo copy of the certificate allegedly issued by Lat Gaonburah is on a plain paper with a seal which can be prepared and obtained by anyone. So far as the voter list containing the name Muslimuddin is concerned, in absence of any proof that said Shri Muslimuddin is the father of the petitioner and establishing any link to the said person, it cannot be of any help to the case of the petitioner. As against the said name of Muslimuddin whom the petitioner claims to be his father, in Annexure-I certificate, his father is named as Muslim Ali. 9. During the investigation of the case statement of the petitioner was recorded by the I.O. on 14.08.2001. At that point of time, his age was 45 years. As against the said name of Muslimuddin whom the petitioner claims to be his father, in Annexure-I certificate, his father is named as Muslim Ali. 9. During the investigation of the case statement of the petitioner was recorded by the I.O. on 14.08.2001. At that point of time, his age was 45 years. If that be so, his present age would be 56 years. Thus, there cannot be any reason as to why his name does not appear in any of the voter list. In the voter list of 2005 that was produced by the learned counsel for the petitioner during the course of hearing, name of Abdul Barek is at serial No. 271, son of Innas, aged 38 years appears. Thus, the said person can not be the petitioner. In any case, the cut off date being 25.3.1971, the petitioner cannot place reliance on the voter list of 2005 unless any linkage is established through any documents or other proof of pre-25.03.1971. 10. As has been held by the Apex Court in (2010) 4 SCC 491 : LICI Vs. Ram Pal Singh Bisen mere admission of a document in evidence does not amount to its proof. In other words, mere making of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. It was the duty of the petitioner to have proved his Indian citizenship by proving the relevant documents. The petitioner having not responded to the proceeding before the Tribunal cannot now invoke the writ jurisdiction of this court and that too, with a false statement of not receiving any notice. It is very easy to annex some documents with the writ petition so as to contend that the same are related to the petitioner. As observed by the Apex Court in the said case, under the law of evidence, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the court. Contents of the documents cannot be proved by merely filing in a court. 11. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the court. Contents of the documents cannot be proved by merely filing in a court. 11. On receipt of the notice, it was incumbent on the part of the petitioner to prove the reference otherwise as envisaged under Section 9 of the Foreigner's Act, 1946. The petitioner having failed to discharge the said burden, this Court exercising its jurisdiction under Article 226 of the Constitution of India cannot give any indulgence to the petitioner and that too, on the basis of the false statement made by him about which discussion has been made above. Writ petition is dismissed, without, however, any order as to costs. 12. The petitioner is presently in detention camp. He will remain in detention camp till he is deported to Bangladesh. Simultaneously his name shall also be deleted from the voter list, if any, which the Superintendent of Police (B), Nalbari and the Deputy Commissioner, Nalbari shall ensure. List the matter after one month for furnishing compliance report. Let the a copy of this judgement and order be furnished to Ms. R. Chokraborty, learned State counsel. Copies of this judgment and order shall also be furnished to Superintendent of Police (B), Nalbari and the Deputy Commissioner, Nalbari. Another copy be sent to the Union of India in the Home Department. Petition dismissed