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2018 DIGILAW 455 (GAU)

Abdul Mojid v. Union of India

2018-03-15

AJIT BORTHAKUR, UJJAL BHUYAN

body2018
ORDER : Ujjal Bhuyan, J. 1. Heard Mr. A.C. Sharma, learned counsel for the petitioner and Mr. J. Payeng, learned Special Counsel, FT. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 18.08.2016 passed by the Foreigners Tribunal, Bongaigaon No. 2 at Abhayapuri (Tribunal) in BNGN/FT/Case No. 1583/2007 (State vs. Mojid Ali) declaring the petitioner to be a foreigner, who had illegally entered into India (Assam) from the specified territory that is Bangladesh on or after 25.03.1971. 3. This Court by order dated 06.10.2016 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should be allowed to remain on bail subject to his appearance before the Superintendent of Police (Border), Bongaigaon and furnishing of adequate surety. 4. An affidavit-in-opposition has been filed on behalf of respondent No. 5 supporting the order of the Tribunal dated 18.08.2016. Allegation of the petitioner that Investigating Officer did not visit the residence of the petitioner and did not record his statement has been denied. It is stated that in the enquiry, sufficient opportunities were granted to the petitioner to produce documents in support of his Indian citizenship but the petitioner failed to produce such documents. Thereafter, reference was made. 5. Submissions made by learned counsel for the parties have been considered. Also perused the record, including the record requisitioned from the Tribunal. 6. From the record, it is seen that the reference against the petitioner was to the effect that he was suspected to be an illegal migrant from Bangladesh who had illegally entered into India (Assam) after 25.03.1971. Enquiry Officer in his enquiry report dated 25.7.2005 stated that original residence of the petitioner was at village Islampur under Khandia Police Station in the district of Faridpur, Bangladesh. For poverty, he had entered into India through illegal way after 25.03.1971. Therefore, he opined that petitioner was an illegal migrant who had entered into India after 25.03.1971. Report of the Enquiry Officer was duly considered by the Superintendent of Police (Border), Bongaigaon whereafter reference was made to the then Foreigners Tribunal, Bongaigaon on 23.11.2006 but after creation of additional Tribunals, it was assigned to the Tribunal for opinion. 7. Therefore, he opined that petitioner was an illegal migrant who had entered into India after 25.03.1971. Report of the Enquiry Officer was duly considered by the Superintendent of Police (Border), Bongaigaon whereafter reference was made to the then Foreigners Tribunal, Bongaigaon on 23.11.2006 but after creation of additional Tribunals, it was assigned to the Tribunal for opinion. 7. In his written statement, petitioner stated that he was the grandson of late Haru Sheikh @ late Haru Dewani, a resident of village Kolepatar under Dhubri Police Station in the district of Dhubri. He was a citizen of India and his name appeared in the National Register of Citizens (NRC), 1951. Besides that, his name appeared in the voters list in 1970. He died in 1972. Father's name was Abdul Matin @ Matin Fakir who was a resident of village Kabaitari Part-IV under Jogighopa Police Station in the district of Bongaigaon. He was a voter of Abhayapuri (South) constituency in the year 1997 and died in the year 1999. Petitioner became a voter of Abhayapuri (South) constituency in the year 2014. Earlier he had studied in the Jhaukura M.E. School under Chapar Police Station in the district of Dhubri. 8. This was all that the petitioner stated in her written statement which by any account was wholly inadequate to establish his identity as a citizen of India when the same was questioned by the State, having regard to the mandate of Section 9 of the Foreigners Act, 1946 as explained by the Supreme Court in paragraph-26 of Sarbananda Sonowal Vs. Union of India, (2005) 5 SCC 665 . Not only were there glaring omissions in the written statement but whatever were stated suffered from material contradictions. In so far omissions are concerned, petitioner did not mention the date or year of his birth; consequently his age at the time of filing the written statement was not disclosed. He also did not mention the names of his mother and paternal grandmother, not to speak of brothers and sisters. Coming to the contradictions, according to the petitioner, his grandfather Haru @ Haru Dewani was a resident of Kolepatar under Dhubri Police Station in the district of Dhubri. But father Abdul Matin @ Matin Fakir was a permanent resident of village Kabaitari Part-IV under Jogighopa Police Station in the district of Bongaigaon which is also stated to be the permanent residence of the petitioner. But father Abdul Matin @ Matin Fakir was a permanent resident of village Kabaitari Part-IV under Jogighopa Police Station in the district of Bongaigaon which is also stated to be the permanent residence of the petitioner. Why and when residence was shifted from village Kolepatar under Dhubri Police Station to village Kabaitari Part-IV under Jogighopa Police Station was not explained by the petitioner. To add to the contradictions, according to the petitioner, he had studied in Jhaukura ME School at Chapar in the district of Dhubri. If his father was a permanent resident of Kabaitari Part-IV under Jogighopa Police Station which is claimed to be the permanent residence of the petitioner, it is not understood as to how and why petitioner studied in Jhaukura ME School located at Chapar in the district of Dhubri. Again, this was not explained by the petitioner. 9. Petitioner filed his evidence-in-chief by way of affidavit on 13.05.2016. In this affidavit, he disclosed his address as village Chalantapara Part-IV under Jogighopa Police Station which is contrary to his stand in the written statement that he was a permanent resident of village Kabaitari Part-IV under Jogighopa Police Station. He stated that he was born at village Chalantapara Part-IV in the year 1984. In paragraph 4 of this affidavit, he mentioned the name of his father as Abdul Matin @ Madina Ali Sheikh but we have noticed that in the written statement, he had mentioned the name of his father as Abdul Matin @ Matin Fakir. Madina Ali Sheikh is a completely different name having no resemblance to the name Abdul Matin. That apart, in the written statement, it was stated that grandfather was a permanent resident of village Kolepatar under Dhubri Police Station but in this affidavit, village was mentioned as Kolapakani Char under Dhubri Police Station. Therefore, on a comparison between the written statement and the evidence-in-chief, it is evident that the narrative presented by the petitioner suffered from multiple material contradictions and omissions rendering the same highly suspect. 10. Notwithstanding the same, we have looked into the documents filed by the petitioner 'which were marked as Exts. 1 to 8. 11. Ext. 1 is stated to be a true copy of National Register of Citizens (NRC), 1951 issued by the Deputy Superintendent of Police (Border), Dhubri on 17.10.1985 containing the names of Haru Dewani, Belaton Nessa, Madan Sheikh (Matin) and Hanif Shekih. 1 to 8. 11. Ext. 1 is stated to be a true copy of National Register of Citizens (NRC), 1951 issued by the Deputy Superintendent of Police (Border), Dhubri on 17.10.1985 containing the names of Haru Dewani, Belaton Nessa, Madan Sheikh (Matin) and Hanif Shekih. NRC, 1951 was prepared on the basis of the Census Act, 1948. As per Section 15 of the Census Act, 1948, record of census are not open to inspection and thus not admissible in evidence. Therefore, in Bhanbhasa Sheikh Vs. Union of India, 1970 Assam LR 206, a Single Bench of this Court categorically held that NRC extracts produced to prove domicile in India is not admissible in evidence for any purpose. We are in complete agreement with the views expressed by the learned Single Judge in Bhanbhasa Sheikh (supra). Therefore, Ext. 1 is no evidence in the eye of law. 12. Coming to Exhibits 2 and 3, both are statements of voters details stated to have been obtained from the office of the State Coordinator, NRC. As per Ext. 2, name of the voter was Madina Sheikh, son of Haru Dewani. His age was shown as 10 years. This statement is not relatable to any year and therefore we do not know when Madina Sheikh was 10 years of age. 13. Ext. 3 is in the name of Madina Ali Sheikh, son of Haru Dewani and in 1959, he was 21 years of age. These two documents are not admissible in evidence for the simple reason that these are computer generated statements. In the absence of authentication or certification by a competent officer of the department as per requirement of Section 65 B(4) of the Evidence Act, 1872, no reliance can be placed on these two documents. That apart, these two documents mentions about legacy data code meaning thereby that these are being used in the current NRC updation process. Be it stated that the present NRC updation process is being carried out under Section 14A of the Citizenship Act, 1955, as amended, and the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. But the moot point is that this exercise is now at the draft stage; rather the draft stage is yet to be completed. Therefore, no finality can be attached to such documents when the draft stage is yet to be completed. We, therefore, reject Ext. But the moot point is that this exercise is now at the draft stage; rather the draft stage is yet to be completed. Therefore, no finality can be attached to such documents when the draft stage is yet to be completed. We, therefore, reject Ext. 2 and Ext. 3. 14. Ext. 4 is stated to be a photocopy of certified copy of the voters list of 1997 of Abhayapuri (South) constituency wherein the voters were Abdul Matin, son of Haru Dewani; Mayari Khatun, wife of Abdul Matin, Abdul Hakim, son of Abdul Matin and Amona Khatun, wife of Abdul Hakim. They were shown as residents of village Kabaitari Part-IV. First of all, this document was not proved by comparing with the primary evidence, i.e., original copy of the electoral roll through the testimony of the lawful custodian of the primary evidence. Therefore, contents of this document remained unproved. That apart, in this document, the age of the voters got struck off because of the slant in the photocopy. Even if we ignore this aspect, we find that in Ext. 1, it was Madan Sheikh (Matin), in Ext. 2, it was Madina Sheikh and in Ext. 3, it was Madina Ali Sheikh. Therefore, it is not possible to say that Abdul Matin of Ext. 4 is the same person as Madina Ali Sheikh of Ext. 3, Madina Sheikh of Ext. 2 and Madan Sheikh (Matin) of Ext. 1. Therefore, presence of Abdul Matin on Indian soil as a citizen of India relatable to a period prior to 25.03.1971 has come under a cloud. Be it stated that 25.03.1971 is the cut-off date for identification of foreigners in the State of Assam as per Section 6A of the Citizenship Act, 1955, as amended. Therefore, even if the petitioner is able to establish his relationship or linkage with Abdul Matin, it will not be sufficient to prove that he is not a foreigner but a citizen of India because Abdul Matin is traceable only to 1997 (Ext. 4). Notwithstanding the same, we have looked into the remaining four documents which show that petitioner is the son of Abdul Matin. 15. Ext. 5 is a transfer certificate issued by the Headmaster of Jhaukura ME School dated 02.01.1999 certifying that Abdul Mojid was the son of Abdul Matin. 4). Notwithstanding the same, we have looked into the remaining four documents which show that petitioner is the son of Abdul Matin. 15. Ext. 5 is a transfer certificate issued by the Headmaster of Jhaukura ME School dated 02.01.1999 certifying that Abdul Mojid was the son of Abdul Matin. As per this certificate, petitioner had left the said school on 31.12.1993 when he was reading in Class-V. On 31.12.1993, Abdul Majid was 13 years 4 months 5 days. Therefore, this would mean that he was born on 27.08.1979. This certificate cannot be treated as a valid piece of evidence for more than one reason. Firstly, below the name of the school, the address was mentioned as P.O. Chapar, district Bongaigaon. We can take judicial notice of the fact that Chapar is not within the district of Bongaigaon but is situated in the district of Dhubri. This itself casts serious doubts about the genuineness of this document. Secondly, address of the petitioner and Abdul Matin was mentioned as village Chapar Part-IV whereas in the written statement, it was pleaded by the petitioner that father was a permanent resident of village Kabaitari. Even if we assume that Kabaitari and Chapar is the name of the same village, which we do not know, distance from Bongaigaon to Chapar is quite far. Therefore, it is not understood as to why a minor child studying in Class-V would travel to such a long distance to study in a ME School at Chapar when similar schools were certainly available in the neighbourhood. But more importantly, neither this document nor the contents thereof were proved by the petitioner in accordance with law. 16. In Birad Mal Singhvi Vs. Anand Purohit, 1988 (Supp) SCC 604, Supreme Court has held that date of birth recorded in school certificate or school register would have no evidentiary value unless the person who made the entry or who gave the information relating to the date of birth is examined. In this case, Headmaster of the school did not appear before the Tribunal along with the Admission Register to prove Ext. 5 and its contents. Therefore, this document cannot be accepted as a valid piece of evidence. 17. Ext. 6 is a photocopy of electoral roll of Abhayapuri (South) constituency of 2014 where the name of the voter is Abdul Majid, son of Abdul Matin, aged 30 years. 5 and its contents. Therefore, this document cannot be accepted as a valid piece of evidence. 17. Ext. 6 is a photocopy of electoral roll of Abhayapuri (South) constituency of 2014 where the name of the voter is Abdul Majid, son of Abdul Matin, aged 30 years. If Abdul Majid was 30 years of age in 2014, it would mean that he was born sometime in the year 1984 which is contrary to the date of birth mentioned in the school certificate (Ext. 5). That apart, this photocopy cannot be treated as a valid piece of evidence because there is no certification at the bottom of the document that it was a certified copy of the original to be treated as a certified copy and thereby a secondary piece of evidence. Therefore, this document would be of no assistance to the petitioner. 18. Similar would be the case of Ext. 7 which is an Elector Photo Identity Card in the name of the elector Abdul Majid where the relation's name was mentioned as Abdul Matin. In this document, Abdul Majid was shown as 30 years of age as on 01.10.2013 which would mean that he was born sometime in the year 1983 which is again contradictory to the age of the petitioner as per Ext. 5 (1979) and Ext. 6 (1984). That apart, this document was also not proved in accordance with law. 19. Mere enlistment of name in the voters list or obtaining an Elector Photo Identity Card is per se no proof of citizenship. Such a document would not only have to be proved in accordance with law but must be corroborated by other substantive evidence to prove citizenship. 20. The last of the documents is Ext. 8 which is a certificate dated 18.01.2016 issued by the President of Chalantapara Gaon Panchayat certifying that Abdul Majid was the son of Abdul Matin of Chalantapara Part-IV village. For the same reasons as in the other exhibits, since author of the said certificate did not testify before the Tribunal along with contemporaneous record to prove this document as well as contents thereof, no reliance can be placed thereon. That apart, proceeding against the petitioner had started way back in the year 2006. This certificate was issued 10 years thereafter in 2016 which naturally casts grave doubts about its bona fides. That apart, proceeding against the petitioner had started way back in the year 2006. This certificate was issued 10 years thereafter in 2016 which naturally casts grave doubts about its bona fides. Moreover, there is a question mark over the existence of Abdul Matin itself as a citizen of India. Therefore, it appears to avoid further scrutiny, petitioner very conveniently mentioned in his written statement that his father Abdul Matin died in 1999. Interestingly, till this point of time, we do not know what happened to Mayari Khatun stated to be the wife of Abdul Matin as per Ext. 4 because she is conspicuous by her absence post 1997. 21. In Rupjan Begum Vs. Union of India, (2018) 1 SCC 578, Supreme Court has made it clear that a certificate issued by a Gaon Panchayat Secretary by no means establishes the claim of citizenship. It is only a link document which has to be supported by other evidence. Such a certificate has to be verified at two stages, namely, authenticity of the document itself and secondly, authenticity of the contents which is bound to be an exhaustive process. Since there was no verification of Ext. 8 certificate, no reliance can be placed on the same. 22. Net result of the above discussion is that petitioner had failed to discharge his burden under Section 9 of the Foreigners Act, 1946 to prove that he was not a foreigner but a citizen of India. 23. Consequently, we do not find any merit in the writ petition which is accordingly dismissed. 24. Interim order passed earlier stands vacated. 25. Registry to send down the LCR forthwith and also inform the concerned Foreigners Tribunal, Superintendent of Police (B) and Deputy Commissioner for taking immediate follow up steps. 26. Copies of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC.