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2018 DIGILAW 569 (GAU)

Abdul Sheikh v. Union of India

2018-03-29

NELSON SAILO, UJJAL BHUYAN

body2018
JUDGMENT : Ujjal Bhuyan, J. Heard Mr. A. Roshid, learned counsel for the petitioner and Mr. U.K. Nair, learned Senior Special Counsel, Foreigners Tribunal (FT). 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 05.09.2016 passed by the Foreigners Tribunal, Bongaigaon No.2 at Abhayapuri in BNGN/FT/Case No. 3206/2007 (State v. Abdul Sheikh) declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from the specified territory, i.e., present day Bangladesh on or after 25.03.1971. 3. This Court by order dated 22.11.2016 had issued notice while requisitioning 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. One Ranjit Kumar Barman, Deputy Superintendent of Police (Border), Bongaigaon has filed an affidavit on behalf of the Superintendent of Police (Border), Bongaigaon supporting the order passed by the Tribunal. 5. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record, including the record requisitioned from the Tribunal. 6. Record discloses that in his enquiry report dated 12.10.2007, the Enquiry Officer prima facie observed that petitioner was a foreigner who had entered into India after 25.03.1971 without any valid document. The report of the Enquiry Officer was accepted by the Superintendent of Police (Border), Bongaigaon whereafter reference was made to the then Foreigners Tribunal, Bongaigaon on 19.11.2007. After creation of additional Tribunals, the reference was transferred to the Foreigners Tribunal, Bongaigaon No.2 at Abhayapuri (Tribunal) where it was re-numbered as BNGN/FT/Case No.3206/2007. 7. In his written statement, petitioner stated that he was born at village Tilapara under Abhayapuri Police Station in the district of Bongaigaon having permanent dwelling house. His father was Faju Sheikh, son of Fajil and he was born at village Dubachuri Part-II under Bilasipara Police Station in the erstwhile district of Goalpara. His mother was Khatu Bibi. Names of both the parents were enlisted in the voters list of 1966 in respect of Bilasipara constituency and again in 1970. After the death of his parents, petitioner shifted to village Tilapara from where his name was enlisted in the voters list of 1997 and 2008 in respect of Abhayapuri (North) constituency. In the supporting affidavit sworn on 21.08.2013, petitioner disclosed his age as 50 years. After the death of his parents, petitioner shifted to village Tilapara from where his name was enlisted in the voters list of 1997 and 2008 in respect of Abhayapuri (North) constituency. In the supporting affidavit sworn on 21.08.2013, petitioner disclosed his age as 50 years. However, it is interesting to note that there was no notarisation to this affidavit and strictly speaking, such affidavit or contents of the written statement supported by such affidavit did not have any legal sanctity. 8. Be that as it may, from the written statement, what is discernible is that according to the petitioner, his father was Faju Sheikh, son of Fajil, and he was a citizen of India. Being his son, petitioner was therefore a citizen of India. 9. Let us, therefore, examine as to whether petitioner could prove that he was the son of Faju Sheikh and that Faju Sheikh was a citizen of India. 10. We take up the first fact-in-issue first because it is only when the petitioner is able to establish or prove his relationship with Faju Sheikh, then only the question of Faju Sheikh being a citizen of India or not will arise. 11. In his evidence-in-chief filed by way of affidavit, petitioner narrated more or less the same thing as stated in the written statement. 12. One Helaluddin Sheikh, who claimed to be the paternal uncle of the petitioner, filed evidence-in-chief by way of affidavit. But while replying to the queries put by the Tribunal, he stated that petitioner was son of his paternal uncle (and not of his brother) thereby contradicting his own description in the evidence-in-chief. He had filed a number of documents marked as Exhibits A to F but these documents had no relevance to the fact-in issue because all these documents pertained to Helaluddin Sheikh. But what is interesting to note is that father's name of Helaluddin was Allauddin Sheikh whereas according to the petitioner, his paternal grandfather was Fajil because Faju Sheikh was the son of Fajil. If Helaluddin Sheikh was indeed the paternal uncle of the petitioner, his father ought to have been Fajil and not Allauddin Sheikh. Therefore, identity of DW2 itself became questionable and consequently, testimony of DW2 Helaluddin stood totally impeached. Thus, his evidence cannot be treated as trustworthy besides having no relevance at all to the fact-in-issue. 13. That brings us to the documents filed by the petitioner. Therefore, identity of DW2 itself became questionable and consequently, testimony of DW2 Helaluddin stood totally impeached. Thus, his evidence cannot be treated as trustworthy besides having no relevance at all to the fact-in-issue. 13. That brings us to the documents filed by the petitioner. 14. Ext.1 is a photostat copy of certified copy extract of the voter's list of Bilasipara constituency for the year 1966. Here, the three voters were Faju Sheikh, son of Fajil; Salimon Bewa, wife of Fajil; and Khatu Bibi, wife of Faju Sheikh. They were residents of Dubachuri Part-II village under Bilasipara Police Station. Similar is the position in respect of Ext.2, which is an extract of the voters list of 1970. 15. Ext.3 is of no consequence because it is stated to be a land document of some plot of land under Bilasipara Revenue Circle. There is no proper authentication in this document and it also does not appear to be a Government document inasmuch as it was printed at "Exbo Printers, Dhubri" and the date mentioned was 01.02.1995. Such a document is without any credibility and thus has no evidentiary value. 16. That brings us to Exhibits 4 and 5. 17. Ext.4 is a translated copy of electoral roll of Abhayapuri (North) constituency for the year 1997. Here, the two voters were A. Sheikh, son of late Faju Sheikh; and Asiran Nessa, wife of Abdul Sheikh. They were shown as residents of village Tilapara under Abhayapuri Police Station. Likewise, Ext.5 is a translated copy of the voters list of Abhayapuri (North) constituency for the year 2008 with the names of the above two voters. Exhibits 4 and 5 are not certified copies of voters lists. Those are translated copies of voters lists. This Court has already held in Isiran Nessa v. Union of India, WP(C) No.2460/2016, decided on 10.04.2008, that translated copy of voters list cannot be treated as secondary evidence within the meaning of sections 63 and 76 of the Indian Evidence Act, 1872 and thus inadmissible in evidence. Therefore, these two documents are inadmissible in evidence. 18. Ext.6 is a computer generated statement of bank account of United Bank of India, Abhayapuri Branch where the name of the account holder is Abdul Sheikh, son of Faju Sheikh, of village Tilapara. Therefore, these two documents are inadmissible in evidence. 18. Ext.6 is a computer generated statement of bank account of United Bank of India, Abhayapuri Branch where the name of the account holder is Abdul Sheikh, son of Faju Sheikh, of village Tilapara. This computer generated statement without proper authentication by a competent officer of the department would have no evidentiary value in view of the requirement of section 65B(4) of the Indian Evidence Act, 1872. That apart, Abdul Sheikh, son of Faju Sheikh was shown as resident of village Tilapara whereas Faju Sheikh of Exhibits 1 and 2 was a resident of village Dubachuri Part-II under Bilasipara Police Station. Therefore, it is quite evident that Faju Sheikh of Exhibits 1 and 2 was a different person from Faju Sheikh as appearing in Ext.6. Moreover, having a bank account or a bank passbook by itself is no proof of citizenship. 19. Petitioner also filed a "name correction" affidavit which was marked as Ext.7. But this affidavit does not have the signature of the petitioner or that of his advocate or notarisation by the Notary Public. Therefore, such an "affidavit" would have no evidentiary value. That apart, a self serving suo-moto affidavit filed by a proceedee to explain discrepancies in name and age of self, father etc is neither evidence nor proof in the eye of law. 20. Thus having regard to the discussions made above, it is apparent that petitioner could not prove that he was the son of Faju Sheikh whom he claimed to be his father and a citizen of India. Thus, 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. 21. Resultantly, we do not find any merit in the writ petition which is accordingly dismissed. Interim order passed earlier stands vacated. 22. Registry to send down the LCR forthwith and inform the concerned Foreigners Tribunal, Superintendent of Police (B) and Deputy Commissioner for taking immediate followup steps. 23. Copies of this order may also be forwarded to learned Standing counsel, Election Commission of India and State Coordinator, NRC.