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2012 DIGILAW 364 (GAU)

Md. Abdul Rahim v. Union of India

2012-03-20

BIPLAB KUMAR SHARMA

body2012
ORDER B.K. Sharma, J. 1. This writ petition is directed against the judgment and order dated 07.07.2011 passed by the Foreigners Tribunal (2nd), Morigaon in FT(D) Case No. 19/2009 (State of Assam v. Abdul Rahim) by which the petitioner has been declared to be a foreign national who illegally entered into Assam from Bangladesh after the cut-off date, i.e. 25.03.1971. The case projected in the writ petition is that the grandfather of the petitioner Md. Jahed Ali came to India prior to partition and started living in Sahariapam village under Mouza Mairabari, P.S. Laharighat in the District of Nagaon. The petitioner has named his father as Abdul Barek alias Baru Seikh. The petitioner has referred to certain documents of 1955 and 1957 purportedly standing in the said name. 2. Further statement made in the writ petition is that the father of the petitioner was a voter in 1955 and 1970 and he died about 14 years back. The petitioner has also referred to the land document of 1998 purportedly standing in his name. According to the petitioner, his name appeared in the voter lists of 1989, 1993 and 1997. 3. I have heard Mr. S. Chouhan, Learned Counsel for the petitioner as well as Mr. H.K. Barman, learned State counsel and Mr. M. Bhagawati, learned CGC. I have also perused the records of the Tribunal. In consideration of the same, my findings are as below: 4. Needless to say that the writ Court exercising its power of judicial review under Article 226 of the Constitution of India cannot make a roving enquiry as to the veracity or otherwise of the documents annexed to the writ petition. It also cannot sit on appeal over the findings recorded by the Tribunal by appreciating the evidence on record. 5. The proceedings against the petitioner had emanated on the basis of the verification carried out by the Verification Officer in respect of registration of his name in the electoral roll. An extensive review of electoral roll was carried out as per the direction of the Election Commission of India and it was found that his name was included in the draft electoral roll of 1997, whereas he was suspected to be an illegal migrant. Exhts. 1 and 2 are verification report and the report submitted by the Electoral Registration Officer. An extensive review of electoral roll was carried out as per the direction of the Election Commission of India and it was found that his name was included in the draft electoral roll of 1997, whereas he was suspected to be an illegal migrant. Exhts. 1 and 2 are verification report and the report submitted by the Electoral Registration Officer. On the basis of such reports, a reference was made against the petitioner to the Tribunal to give its opinion as to the Indian citizenship of the petitioner. With the registration of the case in the Tribunal, the petitioner was served with notice in response to which he had appeared and contested the reference. 6. Initially, upon failure to respond to the proceeding before the Tribunal in spite of granting several opportunities, the Tribunal had passed an order for ex parte hearing. However, on the basis of the application made by the petitioner on 11.10.2010, the order for ex parte hearing was recalled and the matter was fixed for hearing. After several opportunities the petitioner submitted his written statement on 25.08.2010 in which it was stated that he is an Indian citizen by birth and that his father's name was included in 1965 voter list. The plea taken in the written statement is that there was no proper inquiry and that he had been illegally branded as illegal migrant. Along with the written statement the petitioner had enclosed only five documents which are as follows: (i) Exht. 'Ka' certificate purportedly issued by Govt. Gaon Burha of Sahariapam Village certifying the petitioner to have been residing in the said village. (ii) Exht. 'Kha' certificate purportedly issued by the particular Panchayat to the same effect. (iii) Exht. 'Ga' transfer certificate purportedly issued by the Headmistress of the particular MV school certifying that the petitioner was a student of Class-VII in the school and his date of birth is 03.02.1972 (iv) Certified copy of the voter list (extract only) of 1970 containing the name of one Abdul Barek. (v) Certified copy of the voter list (extract only) of 1955 containing the name of one Abdul Barek. 7. Above is the written statement and documents on which the petitioner placed reliance towards establishing his Indian citizenship and that too by birth. Independent of the findings recorded by the Tribunal, I have examined the said documents to derive prima facie satisfaction. 7. Above is the written statement and documents on which the petitioner placed reliance towards establishing his Indian citizenship and that too by birth. Independent of the findings recorded by the Tribunal, I have examined the said documents to derive prima facie satisfaction. None of the documents can inspire confidence of this Court. Exhts. 'Ka' and 'Kha' do not meet anything. By the said two documents the petitioner has been certified to have been residing in the particular village. The said two documents do not disclose as to since when the petitioner has been residing in the said village. Exht. 'Ga' transfer certificate is dated 17.08.2010 ' certifying that the petitioner left the particular school in 1985. Thus, the certificate was issued after 25 years. The certificate is entirely on a loose sheet without any letter head and emblem of the school. Only an impression of a seal which can be easily manufactured appears on the certificate with an illegible signature. The petitioner cannot establish his Indian citizenship by such documents. The other two documents, namely the voter list (extract only) of 1970 and 1955 are of no consequence as the same does not establish any link to the petitioner. Interestingly while the purported father of the petitioner Abdul Barek was shown to be 45 years of age in 1955, he was shown to be 50 years of age in 1970. There is also no explanation as to why his name does not appear in any other documents/voter lists. In the proceeding before the Tribunal the State examined the Verification Officer (PW 1) who proved his reports (Exht. 1) establishing that the petitioner is not an Indian national. 8. Above apart, although the petitioner exhibited the aforesaid documents, he did not prove it. The signatory of Exht. 'Ka' was not called as witness. Similarly the signature appearing in Exht. 'Ga' was also not proved by calling the Headmistress who had purportedly issued the said certificate. Moreover, the voter list Exht. 'Gha' and Exth. 'Unga' are related to No. 84 Laharighat LAC. He also could not establish the fact that his father died about 12 years back. The DW 2 also could not state anything about the length of stay of the petitioner in the particular village. 9. All the above aspects of the matter have been discussed by the Tribunal in detail in its judgment and order dated 07.07.2011. He also could not establish the fact that his father died about 12 years back. The DW 2 also could not state anything about the length of stay of the petitioner in the particular village. 9. All the above aspects of the matter have been discussed by the Tribunal in detail in its judgment and order dated 07.07.2011. Now coming to the writ Court, the petitioner has sought to place reliance on as many as 16 documents which were never produced before the Tribunal. this Court exercising the writ jurisdiction cannot take evidence like that of civil Court. If the petitioner wanted to place reliance on the documents now placed before this Court, it was his duty to produce the same before the Tribunal and to prove the same in accordance with law. Nowhere in the writ petition, he has stated any reason for non-production of the same. 10. As has been discussed by the Apex Court in Life Insurance Corporation of India and another v. Rampal Singh Bisen reported in (2010) 4 SCC 491 : (AIR 2010 SC (Supp) 753), mere admission of a document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. Under the law of evidence also, 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 document cannot be proved by merely filing in a court. 11. As discussed by the Apex Court in the case of Sarbananda Sonowal (I) reported in AIR 2005 SC 2920 , under Section 9 of the Foreigners Act, 1946, the burden wholly lies on the suspected foreigner to prove his Indian citizenship. The issue involved is the ascertainment of Indian citizenship which is a serious one and no one can be permitted to deal with such issue lightly. The petitioner was given adequate opportunity to answer the reference by discharging the said burden of proof which he miserably failed. The issue involved is the ascertainment of Indian citizenship which is a serious one and no one can be permitted to deal with such issue lightly. The petitioner was given adequate opportunity to answer the reference by discharging the said burden of proof which he miserably failed. Now coming to the writ Court, he has produced a large number of documents (photo copies) demanding this Court to adjudicate the reference on the basis of the said documents which is simply not permissible. The petitioner having placed reliance on the aforesaid five documents only before the Tribunal and no other documents, he cannot be permitted to place reliance on the documents now annexed to the writ petition which will have to satisfy the test of evidentiary value as envisaged under the Evidence Act. 12. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed. The Superintendent of Police (B), Morigaon is directed to take the petitioner into custody and to keep him in the detention camp till is deportation to Bangladesh. The Deputy Commissioner, Morigaon is also directed to delete his name from the voter list, if found incorporated. 13. Let the copies of this judgment and order be forwarded to the Superintendent of Police (B), Morigaon and the Deputy Commissioner, Morigaon for necessary compliance of the direction. Another copy be sent to the Union of India, Home Department, New Delhi. A copy of the same may also be furnished to Mr. H.K. Barman, learned State counsel for his necessary follow up action. The writ petition is dismissed. There shall be no order as to costs. List the matter after Bihu vacation for furnishing the compliance report. Petition dismissed.