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2015 DIGILAW 1283 (GAU)

Md. Fazar Ali v. Union of India

2015-10-05

B.K.SHARMA

body2015
JUDGMENT : B.K. Sharma, J. 1. The challenge in the writ petition is the judgment & order dated 6th September, 2012 of the Foreigners Tribunal (2nd), Morigaon, Assam passed in Case No. F.T. (C) 101/2009, IM(D)T Case No. 50/2004 dated 17th January, 2004, State of Assam vs. Md. Fazar Ali, by which the petitioner has been declared to be a foreigner of post 25th March, 1971 stream. 2. Admittedly, in the proceeding before the Tribunal, the petitioner did not adduce any evidence and thus failed to discharge the burden of proof as envisaged under Section 9 of the Foreigners, Act, 1946, about which detail discussions have been made in Sarbananda Sonowal vs. Union of India and Others, AIR 2005 SC 2920 . 3. I have heard Mr. H.R.A. Choudhury, learned senior counsel assisted by Mr. A. Matin, learned counsel for the petitioner and Ms. G. Sarma, learned counsel appearing on behalf of Mr. S.C. Keyal, learned Assistant Solicitor General of India. Also heard Mr. Sk. Nur Mohammad, learned State counsel and so also Mr. P. Hazarika, learned standing counsel, Health Department. 4. I have considered the submissions advanced by the learned counsel appearing for the parties and have also perused the entire materials on record including the LCR received from the Tribunal. 5. When the matter was last taken up on 21st September, 2015, a doubt having arisen in respect of the authenticity of the Annexure-1 birth certificate dated 11th January, 2011 issued by the Registrar, Birth & Death, Laharighat PHC, the Director of Health Services, Assam, the Deputy Commissioner, Morigaon and the Superintendent of Police, Morigaon were directed to apprise the Court about the authenticity of the said certificate. They were impleaded as respondent Nos. 5, 6 & 7. 6. By the said certificate dated 11th January, 2011, it was certified that the petitioner was born on 8th January, 1965 at Dhumkura in the district of Morigaon. Thus, the certificate was issued after 46(fourty-six) years of the petitioner's alleged birth at Dhumkura. The petitioner has placed reliance on the aforesaid birth certificate so as to contend that he is an Indian citizen by birth. 7. The learned counsel appearing for the respondents have produced the reports dated 5th October, 2015 and 3rd October, 2015 of the Superintendent of Police (B), Morigaon, Assam and the Director of Health Services, Assam, respectively. The petitioner has placed reliance on the aforesaid birth certificate so as to contend that he is an Indian citizen by birth. 7. The learned counsel appearing for the respondents have produced the reports dated 5th October, 2015 and 3rd October, 2015 of the Superintendent of Police (B), Morigaon, Assam and the Director of Health Services, Assam, respectively. It will be pertinent to mention here at this stage that as per the laid down procedure and practice, in case of issuance of certificate by the Registrar, Birth & Death, after expiry of 1(one) year, before issuance of such certificate, recommendation of the jurisdictional Deputy Commissioner is required to be obtained and such recommendation finds mention in the remark column of the certificate. 8. In the instant case, no such recommendation finds mention in the Annexure-1 birth certificate dated 11th January, 2011. This aspect of the matter has been confirmed by the Deputy Commissioner in his letter dated 3rd January, 2015 addressed to Mr. Sk. Nur Mohammad, learned Additional Senior Government Advocate. In the said letter, responding to the query made regarding authenticity of the birth certificate issued by the Laharighat Health Centre, it has been stated that the official record has revealed that no instruction was issued by the Deputy Commissioner's Office, Morigaon to issue such certificate. Alongwith the letter, a copy of the enquiry report dated 3rd October, 2015 has also been enclosed. The enquiry was conducted by the Committee comprising of Sub-Registrar (HQ), Death & Birth, Morigaon; Joint Director of Health Services, Morigaon and the Additional Deputy Commissioner, Morigaon. As per the said report also, the certificate was not allowed for registration from the Office of the Deputy Commissioner, Morigaon. 9. In the report of the Superintendent of Police, Morigaon, the letter dated 3rd October, 2015 of the Registrar, Birth & Death, Laharighat PHC is available. In the said letter, the Registrar has expressed his doubt about the authenticity of the signature appearing in the birth certificate. Be that as it may, once it is established that there was no recommendation from the Office of the Deputy Commissioner for issuance of the birth certificate, such a certificate could not have been issued by the Laharighat PHC. Strangely enough, the Registrar of Birth & Death, Laharighat PHC has stated that the documents relating to issuance of such certificate has been misplaced during the shifting of the Office. Strangely enough, the Registrar of Birth & Death, Laharighat PHC has stated that the documents relating to issuance of such certificate has been misplaced during the shifting of the Office. According to his report allegedly made to the Officer-in-Charge, Laharighat Police Station, the documents missing are births and deaths registrars of 2011, 2012, 2013 and 2014; counterfoils of certificates; order of the Deputy Commissioner for issuing such certificates; application forms; reports etc. A simple report was shown furnish on 26th August, 2014 to the Laharighat Police Station intimating about misplacing the aforesaid records. 10. It is not the case of the Laharighat PHC that the documents have been stolen. The report of the Superintendent of Police (B), Morigaon dated 5th October, 2015 contains the note dated 4th October, 2015 of the Sub-Inspector (B), Laharighat Police Station. In his report, he has expressed his surprise as to why only the aforesaid documents have been misplaced and not any other documents including costly items like computer; hospital materials etc. This would require a thorough enquiry of the Superintendent of Police (B), Morigaon to unearth the racket of issuing the fake birth and death certificates to help the illegal migrants. It will not be out of place to mention here that earlier also this Court unearthed a racket of issuance of fake certificates by Dharamtul SHC. Another racket of issuance of forged birth certificates was also unearthed in respect of Gazarikandi PHC of Dhubri District. In this connection, the orders passed in WP (C) No. 2306/2014 and WP (C) No. 3660/2015 may be referred to. 11. Above being the position, there is manner of doubt that the petitioner has taken recourse to falsehood in placing reliance on the Annexure-1 birth certificate. However, Mr. Choudhury, learned counsel for the petitioner submits that irrespective of this episode there being overwhelming materials to prove the Indian citizenship of the petitioner, the writ petition is required to be allowed by interfering with the impugned judgment & order. Once it is found that the petitioner has placed reliance on a forged birth certificate and thereby has abused the process of law, on that score alone the writ petition is liable to be dismissed. 12. Irrespective of the aforesaid position, I have considered the impugned judgment & order on its own merit. Once it is found that the petitioner has placed reliance on a forged birth certificate and thereby has abused the process of law, on that score alone the writ petition is liable to be dismissed. 12. Irrespective of the aforesaid position, I have considered the impugned judgment & order on its own merit. On perusal of the judgment, it appears that on receipt of notice, the petitioner appeared before the Tribunal on 5th March, 2010 and filed a petition bearing No. 165 praying for another date enabling him to file written statement. The prayer was allowed fixing the matter on 20th April, 2010. On that day also he prayed for time and the same was allowed. On the next date also, i.e. on 11th June, 2010, the petitioner prayed for time. Prayer was allowed fixing the matter on 17th July, 2010, on which date, he filed written statement and thereafter, defaulted on 14th September, 2010. He again reappeared on 21st October, 2010 and thereafter, again defaulted on 5th September, 2011. He also prayed for time on various dates, namely, 15th July, 2011; 3rd November, 2011; 27th December, 2011; 3rd April, 2012 and remained absent on 14th February, 2012 and again on 26th June, 2012, followed by 6th September, 2012. Thus, the petitioner failed to prove the contents of the written statement and for that matter failed to discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946. 13. On the other hand, the State examined one Md. Matiur Rahman as PW-1, who in his deposition, proved the enquiry report based on which the reference was made. 14. According to Mr. Choudhury, learned senior counsel for the petitioner, irrespective of not adducing any evidence by the petitioner, it was incumbent on the part of the State to prove the reference and that it was incumbent on the Tribunal to refer to the written statement before arriving at the impugned finding. As has been held by a Full Bench of this Court in State of Assam and Another vs. Moslem Mondal and Others, 2013 (1) GLT 809, in a proceeding under the Foreigners Act, 1946, the issue is whether the proceeding is a foreigner. It being a fact especially within the knowledge of the proceeding, the burden of proving that he is a citizen is, therefore, upon him because of Section 9 of the 1946 Act. It being a fact especially within the knowledge of the proceeding, the burden of proving that he is a citizen is, therefore, upon him because of Section 9 of the 1946 Act. In a proceeding before the Tribunal, State is not required to adduce any evidence as the burden lies on the proceeding to prove to the satisfaction of the Tribunal that he is not a foreigner. In the instant case, although the petitioner filed hid written statement but did not discharge his burden of proof. Now coming to the writ Court, the petitioner has placed reliance on certain documents including the aforesaid forged Annexure-1 birth certificate so as to claim that he is an Indian citizen by birth. I am afraid that such a plea on the part of the petitioner is not entertainable. In the writ petition, there is not even a whisper as to why the petitioner did not lead any evidence towards discharging his burden of proof. 15. The Apex Court in Life Insurance Corporation of India and Others vs. Ram Pal Singh Bisen, (2010) 4 SCC 491 that mere filing or accepting a document in Court does not amount to proof of its contents. Admission of documents in Court may amount to admission of its contents but not the truth. For a ready reference, paragraph 31 of the said judgment is quoted below:- "31. 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 Curt. Contents of the document cannot be proved by merely filing in a court." 16. Above being the position, I see no reason to interfere with the impugned judgment and order dated 6th September, 2012 of the Foreigners Tribunal (2nd), Morigaon, Assam passed in Case No. F.T. (C) 101/2009, IM(D)T Case No. 50/2004 dated 17th January, 2004 and accordingly, the writ petition is dismissed. Consequently, the Superintendent of Police (B), Morigaon shall take the petitioner into custody and detain him in the detention camp forthwith till such time he is deported to his country of origin, i.e. Bangladesh. Consequently, the Superintendent of Police (B), Morigaon shall take the petitioner into custody and detain him in the detention camp forthwith till such time he is deported to his country of origin, i.e. Bangladesh. Simultaneously, the Deputy Commissioner, Morigaon shall ensure deletion of the name of the petitioner from the voter list, if found. 17. The Registry shall transmit the case records to the Foreigners Tribunal (2nd), Morigaon, Assam alongwith a copy of this judgment and order. 18. Copies of this judgment and order shall also be sent to the Superintendent of Police (B), Morigaon and the Deputy Commissioner, Morigaon. Another copy of this order shall also be furnished to Mr. Sk. Nur Mohammad, learned State counsel, for his necessary follow up action. 19. List the matter after 1(one) month for submission of report by the Superintendent of Police (B) and the Deputy Commissioner, Morigaon.