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2015 DIGILAW 1295 (GAU)

ASAN ALI SK. @ ASAN ALI v. UNION OF INDIA

2015-10-06

B.K.SHARMA

body2015
JUDGMENT : B.K. Sharma, J. I have heard Mr. M.U. Mahmud, learned counsel for the petitioner. Also heard Mr. N. Mohammed, learned State Counsel and Ms. G. Sarma, learned counsel appearing on behalf of Mr. S.C. Keyal, learned ASGI. I have also considered the entire materials on record including the records received from the Tribunal 2. The petitioner is aggrieved by order dated 5.11.2014 of the Foreigners Tribunal, Goalpara passed in F.T. Case No. 6142/G/13 (ERO's Case No/Dist. Case No. 7-59/38) (Union of India v. Asan Ali). By the said order, the petitioner has been declared to be an illegal migrant of post 25.3.1971. 3. Referring to the statements made in paragraph-8 of the writ petition, Mr. Mahmud, learned counsel for the petitioner submits that on 24.10.2014 the petitioner made an attempt to file some additional documents and also desired to file evidence on oath, but the learned Tribunal refused to accept those documents and also did not allow him to adduce evidence. It has also been stated that the Tribunal refused to accept the statement of the witnesses. For a ready reference, paragraph-8 of the writ petition is quoted below: "8. That the petitioner begs to state that the petitioner appeared and submitted a written statement to contest and prove his Indian nationality on 2nd date i.e. 03.04.14. In his W.S. he has clearly stated that the name of his grandfather namely Jongser Ali recorded at serial No. 1 of the NRC, 1951. However, in some other documents his grandfather's name has been also recorded as Jomser Ali and Jongser Ali. In his W.S. he also stated that his father i.e. Doyali Sk's name has been also recorded in the voter's list of 1970 at serial No. 212, House No. 94 of Goalpara West LAC however in some other documents his father Doyali Sk's name has been also recorded as Doyal Sk or Noyalilike the voter list of 1997 of Goalpara West LAC. In addition to these the petitioner filed the voter's list of 1979, 1985, 1989, 1993 and 1997 of Goalpara West LAC. In addition to these the petitioner filed the voter's list of 1979, 1985, 1989, 1993 and 1997 of Goalpara West LAC. On 24.10.14 the petitioner made an attempt to file some additional documents and also desired to file evidence on oath, and for this purpose his statements were also duly recorded and converted in writing through Notary Public along with other 2 different witnesses namely Abdul Kashem, who is his maternal uncle and Kajuli Bibi, the elder sister of his father as DW2 and DW3, respectively. But the Ld. Tribunal refused to accept those documents, denied of allowing him to adduce evidence and also refused to accept the statements of his witnesses to adduce in support of his Indian Nationality and finally the Ld. Foreigner's Tribunal, Goalpara has passed the impugned order, dated 5.11.14, and held that the petitioner is an illegal migrant of post 1971 stream from Bangaldesh. It is also directed that the Superintendent of Police (B) Goalpara shall restrain the free movement of the petitioner and he shall be at liberty to push back the petitioner from territory of India within an early date in accordance with provision of law without Quite India notice. In this regard, it is worthy to mention that in some documents, his father's name has been recorded as Doyal Sk. In some documents as Doyali Sk and in some documents recorded as Noyali, which are the name of the same man, who is his father, non else" 4. The above quoted paragraph-8 of the writ petition has been verified to be true as based on record. However, on perusal of the case records received from the Tribunal, it is found that such statement on the petitioner is absolutely false. On receipt of notice from the Tribunal, the petitioner appeared on 24.3.2014 and prayed for time through petition No. 790. While allowing the prayer so made and fixing the matter on 3.4.2014, the petitioner was cautioned by the Tribunal not to make any default in future appearance. On 3.4.2014, the petitioner filed written statement along with photocopies of some documents and prayed for time for evidence vide petition No. 909. The prayer was allowed fixing the matter on 17.5.2014. However, on 17.5.2014 also, the petitioner prayed for time for evidence vide petition No. 1210 and the prayer was allowed fixing the matter on 17.6.2014. 5. On 3.4.2014, the petitioner filed written statement along with photocopies of some documents and prayed for time for evidence vide petition No. 909. The prayer was allowed fixing the matter on 17.5.2014. However, on 17.5.2014 also, the petitioner prayed for time for evidence vide petition No. 1210 and the prayer was allowed fixing the matter on 17.6.2014. 5. On 17.6.2014 also the petitioner filed petition No. 1567 and prayed for time for evidence due to shortage of document. The prayer was allowed with a note of caution not to default and the matter was taken up after two months and to be precise on 16.8.2014 for evidence. As usual on 16.8.2014 also, the petitioner again made a prayer vide petition No. 2118 to allow further time for collection of document. The prayer was allowed as a last chance fixing the matter on 24.10.2014 i.e. after two months. On 24.10.2014, the petitioner again vide petition No. 2799 prayed for further time to adduce evidence. English translation of the petition is as follows: "Before The Member of Foreigners Tribunal, Goalpara FT Case No. 6142/4/13 Union of India v. Asen Ali Sk. The petitioner most respectfully states that today is the date fixed for evidence. However, the O.P. could not obtain certified copy of the voter list of 1966 and thus not in a position to adduce evidence. Therefore, he is in need of another date. In view of the above, the learned Court may be pleased to grant another date for evidence. Dt. 24.10.2014" 6. While the above prayer of the petitioner seeking adjournment for evidence is tested in reference to the above quoted paragraph-8 of the writ petition, there is absolutely no manner of doubt that the petitioner has taken recourse to falsehood, which will also be evident from the order passed by the Tribunal on 24.10.2014 on the above quoted application. The learned Tribunal in its order dated 24.10.2014 referring to its earlier orders and the prayer made vide petition No. 2799 for another adjournment also referred to the amended provisions of the Foreigners (Tribunal) Order 1964, in terms of which, proceedee is required to file response within 10 days and a reference is required to be disposed of within 60 days. 7. 7. After the aforesaid order rejecting the prayer of the petitioner for another date for adducing evidence, the matter was again taken up on 5.11.2014, on which date, the impugned order was passed. In the said order, the learned Tribunal elaborately discussed the provisions of amended order of 1964 and the time to time adjournments granted to the petitioner to adduce evidence. On that day also the petitioner remained absent without steps. However, coming to the Writ Court the petitioner has taken recourse to falsehood in making the aforesaid statement in paragraph-8 of the writ petition, by which it has been stated falsely that the Tribunal declined to accept the documents and the evidence on affidavit. 8. Along with the written statement, the petitioner had produced photocopies of 5 documents. Needless to say that photocopies of documents are not admissible in evidence and such documents are required to be proved by producing originals towards discharging the burden of proof cast on the proceedee under Section 9 of the Foreigners Act, 1946. The petitioner not only failed to avail the opportunities granted to him, but also has taken recourse to falsehood in approaching the Writ Court, which is an abuse of the process of law. 9. Above being the position, coupled with the fact that the petitioner failed to discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, 1964, about which detail discussions have been made in Sarbananda Sonowal v. Union of India reported in AIR 2005 SC 2920 , I see no reason to interfere with the impugned order dated 5.11.2014 of the Foreigners Tribunal, Goalpara passed in F.T. Case No. 6142/G/13. 10. The writ petition is dismissed. The SP(B), Goalpara is directed to apprehend the petitioner immediately and keep him in detention camp till deportation to his country of origin. His name shall also be deleted from the voter list, if any. 11. Let copies of this order be furnished to Ms. N. Mohammed, learned State Counsel and SP (Border), Goalpara and Deputy Commissioner, Goalpara for necessary follow up action. Copies may also be sent to the Government of Assam in the Home Department and Union of India in the Home Department for appraisal and necessary action. 12. Send down the LCR along with a copy of this order.