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2018 DIGILAW 585 (GAU)

Jainal Uddin v. Union of India

2018-04-03

AJIT BORTHAKUR, UJJAL BHUYAN

body2018
JUDGMENT : Ujjal Bhuyan, J. 1. Heard Mr. HRA Choudhury, learned Senior Counsel assisted by Mr. FU Borbhuiya, learned counsel for the petitioner and Mr. J Payeng, learned Standing Counsel, Foreigners Tribunal. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 26.04.2016, passed by the Foreigners Tribunal, Nagaon Court No. 7th at Lanka in FT/L/Case No. 25/2015 (State v. Jainaluddin), declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.03.1971. 2. This Court by order dated 31.05.2016 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), Hojai and furnishing of adequate surety. 3. Learned counsel for the petitioner submits that petitioner is the son of Lt. Moin Uddin, who was a citizen of India and, therefore, he is a citizen of India. The fact that petitioner is the son of Moin Uddin was acknowledged by the Tribunal itself when it had issued notice to the petitioner describing him as son of Moin Uddin. Relationship of the petitioner with Moin Uddin was proved by Ext-3 voters list of 1997 where the petitioner appeared as a voter and shown as son of Moin Uddin by Ext-6 certificate of the Government Gaonburah and Ext-A i.e., school certificate. Therefore, Tribunal made a manifest error in answering the reference in favour of the State by declaring the petitioner to be a foreigner from the specified territory of post 25.03.1971 stream. 4. On the other hand, learned Special Counsel supports the order passed by the Tribunal and submits that petitioner had failed to establish his linkage with Moin Uddin and, as such, there was no admissible evidence on record to show that he was a citizen of India. He, therefore, prays for dismissal of the writ petition 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. We will come to the contentions advanced by learned counsel for the petitioner later. 7. For the moment, we may advert to the written statement and evidence-in-chief of the petitioner. 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. We will come to the contentions advanced by learned counsel for the petitioner later. 7. For the moment, we may advert to the written statement and evidence-in-chief of the petitioner. In the written statement filed by the petitioner on 05.10.2015, he mentioned that his father was a voter of Hojai Constituency in the year 1966 and 1970. His name was enlisted as voter of Jamunamukh Constituency in 1997. He continued to be a voter in 2015, 2010 and 2015. In this connection, he referred to a certificate issued by the Government Gaonburah and Special Family Identity Card. Statements made in the written statement were not verified by the petitioner either by verification or by way of affidavit. 8. Be that as it may, on going through this written statement, we find that petitioner did not even mention the name of his father, though he claimed that he was a voter in 1966 and 1970. From the written statement, we do not know who is the father of the petitioner. We also do not know who is the mother of the petitioner, not to speak of paternal grandparents or brothers' and sisters of the petitioner, if any. Petitioner did not even mention the date or year of his birth and, consequently, his age on the date of filing the written statement was not disclosed. Such a written statement is wholly inadequate to establish the identity of the proceeded as a citizen of India 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 v. Union of India, reported in (2005) 5 SCC 665 . Paragraph 26 of Sarbananda Sonowal (supra) is extracted hereunder: - "26. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1) (d) of the Citizenship Act. In order to establish one's citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1) (d) of the Citizenship Act. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." 9. This Court has held in several decisions that when the citizenship status of proceeded is questioned, that too by the State, it is the bounden duty of the proceeded to disclose all material facts in his possession at the first instance itself; in this case, in the written statement. Failure to disclose material facts in the written statement by itself may lead to drawal of adverse presumption against the proceeded. However, mere pleading of material facts in the written statement is not enough. If material facts are disclosed, those would then have to be proved by adducing cogent, reliable and admissible evidence. Proceeding to the evidence-in-chief which the petitioner filed by way of affidavit on 13.10.2015, petitioner stated the same thing as in the written statement except that in the identification paragraph and in the verification, petitioner disclosed the name of his father as Lt. Moin Uddin and his age as 46 years. But before we advert to this aspect, we may mention that there is no solemn affirmation by the petitioner in this evidence-in- chief filed by way of affidavit The paragraphs in the evidence-in-chief filed by way of an affidavit were not affirmed by the petitioner. Moin Uddin and his age as 46 years. But before we advert to this aspect, we may mention that there is no solemn affirmation by the petitioner in this evidence-in- chief filed by way of affidavit The paragraphs in the evidence-in-chief filed by way of an affidavit were not affirmed by the petitioner. This aspect of the matter was overlooked by the Lawyer, who identified the petitioner as well as by the Notary Public, who had notarized the said evidence-in-chief. Therefore, technically speaking such evidence on affidavit-lacked credibility. However, from this evidence of the petitioner, we find that it was the case of the petitioner that he was the son of Moin Uddin and Moin Uddin was a citizen of India, whose name was enlisted in the voters lists of 1966 and 1970. Therefore, the facts in issue, in this case, would be - 1. Whether petitioner was the son of Moinuddin? 2. If so, whether Moinuddin was a citizen of India? 10. We take up fact in issue No. 1 first, because unless petitioner is able to establish his relationship with Moin Uddin as his son, question of examination of the citizenship status of Moin Uddin would not arise. 11. We notice that in his cross-examination, petitioner made a complete departure from his pleadings in the written statement and evidence in the examination-in-chief by projecting a whole new case. The case now projected was that 3 years after his birth, his parents had separated whereafter, he was brought up by his paternal aunt and uncle. 12. Petitioner had filed as many as nine documents, which were marked as Exts-1 to 9. Out of this nine documents, Ext-3, Ext-6 and Ext-8 are the three documents relied upon by learned counsel for the petitioner to press home his submission that petitioner was the son of Moinuddin. This was in addition to the contention advanced that since in the notice issued by the Tribunal itself, petitioner was mentioned as son of Moin Uddin that would be sufficient proof of the above fact. 13. Before we examine the above aspect, we may briefly examine Exts-1 and 2. Ext-1 is stated to be a certified copy of the voters list of 1966 in respect of Hojai Constituency. 13. Before we examine the above aspect, we may briefly examine Exts-1 and 2. Ext-1 is stated to be a certified copy of the voters list of 1966 in respect of Hojai Constituency. This exhibit contains names of three voters, namely, Muhib Ali, son of Jonab Ali, aged 55 years; Astura Bibi, wife of Muhib, aged 45 years; and Moin Uddin, son of Muhib, aged 28 years. They were shown as residents of Village-Borongatali under Murajhar Police Station in the then district of Nagaon. This position was maintained in Ext-2 i.e., voters list of 1970 with corresponding increase in age of the three voters. Interestingly, from the above two documents, it transpires that Moinuddin was the only son of Muhib Ali and Astura Bibi, because no other names appeared in these two exhibits; not even the name of Samsun, who, according to the petitioner, was his paternal aunt. If Samsun was indeed the paternal aunt of the petitioner, her name ought to have figured in either of the two documents. That apart, in none of the two documents, the wife of Moinuddin appeared. This is significant because, as per Ext- 8 to which we will come later, petitioner was born on 01.01.1969. If that be so, his mother ought to have figured in the two voters list because, according to the petitioner, 3 years after his birth his parents had separated, following which he was brought up by his paternal aunt. But both paternal aunt and mother are conspicuous by their absence in Exts-1 and 2. 14. Regarding the contention of the petitioner that because the Tribunal had described him as son of Moinuddin in the notice issued to him that should be treated as proof of this fact, we say that this contention is to be recorded only to be rejected. We have exhaustively dealt with this aspect of the matter in Rupali Bibi v. Union of India, WP(C) No. 3917/2016, disposed of on 13.02.2018 where we have held as under: - "14. Before proceeding further, we may deal with the argument of learned counsel for the Page No # 5/9 petitioner that mentioning of the petitioner as daughter of Akbar Ali Bepari in the notice issued by the Tribunal itself was proof of fact of such relationship. We are afraid; we can accept such an untenable argument advanced on behalf of the petitioner. We are afraid; we can accept such an untenable argument advanced on behalf of the petitioner. Marking of a notice to a person mentioning therein the person to be the son or daughter of some other person cannot be construed as the proof of the fact that noticee is the son or daughter of that person. This is mentioned in the notice only for the purpose of identification of the noticee and for service of notice; certainly, it cannot be taken as proof of the noticee being the son or daughter of that person. This information can be obtained from the noticee herself or from some other document or source but that is no proof of the fact. This is particularly so in the context of Section 9 of the Foreigners Act, 1946 which has been explained in detail by the Supreme Court as above. Even then, we may briefly examine the relevant provisions of the Indian Evidence Act, 1872 (Evidence Act). 15. Section 3 of the Evidence Act is the interpretation clause. 'Fact' has been defined to mean and include (i) anything, state of things or relation of things, capable of being perceived by senses; (ii) any mental condition of which any person is conscious. 16. A 'fact' is said to be relevant to another when the said 'fact' is connected with the other in any of the ways referred to in the Act relating to relevancy of facts. 17. The expression 'facts in issue' has been defined to mean and include any fact from which either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows. 18. Under Section 3 of the Evidence Act, evidence means and includes oral evidence and documentary evidence. All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under enquiry, would come within the ambit of oral evidence. On the other hand, all documents including electronic records produced for the inspection of the Court are documentary evidence. 19. The word 'proof has a different connotation in the context of the Evidence Act. On the other hand, all documents including electronic records produced for the inspection of the Court are documentary evidence. 19. The word 'proof has a different connotation in the context of the Evidence Act. A fact is said to be proved when after considering the matters before it, Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. 20. A fact is said to be disproved when after considering the matters before it, Court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. 21. A fact is said to be not proved when it is neither proved nor disproved. 22. As per Section 5, evidence may be given of facts in issue and relevant facts. It says that evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts which are declared to be relevant and of no others. Section 9 deals with facts necessary to explain or introduce a fact in issue or relevant fact or which support or rebut an inference suggested by a fact in issue or relevant fact or which establish the identity of anything or person whose identity is relevant or fix the time or place at which any fact in issue or relevant happened, or which shows the relation of parties by whom any such fact was transacted, are relevant in so- far as they are necessary for that purpose. 23. Therefore, from a conjoint reading of Sections 5 and 9 of the Evidence Act, the requirement is that evidence may be tendered to prove facts in issue and/or relevant facts forming part of the facts in issue. A fact is said to be proved only when the Court after considering the matters before it either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. A fact is said to be proved only when the Court after considering the matters before it either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. In other words, a fact can be said to be proved only after consider the evidence tendered unless there is a legal presumption as to its existence or nonexistence." 15. This decision was followed in WP(C) No. 7932/2015 (Sahera Bibi v. State of Assam), disposed of on 14.03.2018, where it has been held that the same principle would be applicable in case of identification of the suspect as son or daughter of some other person in the inquiry report. It was held as follows:- "21. In the case of Rupali Bibi (supra), in the notice issued to the proceeded by the Tribunal, she was marked as the daughter of Akbar Ali Bepari and it was contended that it was sufficient proof of the factum of such relationship. Negating such contention, this Court held that marking of a notice to a person mentioning therein the person to be the son or daughter of some other person cannot be construed as the proof of the fact that noticee is the son or daughter of that person. It has been held that this is mentioned in the notice only for the limited purpose of identification of the noticee for service of notice and, therefore, it cannot be taken as proof of the factum of the noticee being the son or daughter of that person. Similar would be the position in the case of identification of the suspect as son or daughter of some other person because such information can be furnished by the suspect himself or herself or obtained from some other source. But that cannot be construed as proof. This is particularly so in the context of Section 9 of the Foreigners Act, 1946 as explained by the Supreme Court as above. ............. 24. There is no provision either in the Evidence Act or in the Foreigners Act, 1946 that Page No. # 9/14 presumption may be drawn that since petitioner was marked as daughter of Abdul Barek in the enquiry report, this 'fact in issue' should be presumed to be proved. ............. 24. There is no provision either in the Evidence Act or in the Foreigners Act, 1946 that Page No. # 9/14 presumption may be drawn that since petitioner was marked as daughter of Abdul Barek in the enquiry report, this 'fact in issue' should be presumed to be proved. Therefore, a notice issued by a Foreigners Tribunal to a proceeded describing him or her as son or daughter of some person or in a report of the Enquiry Officer preceding the reference where the suspect is described as the son or daughter of some other person whereafter noticee is called upon to respond to a proceeding where his or her citizenship of India is questioned by the State cannot be construed as evidence or proof of such relationship. It is neither evidence nor proof within the meaning of Section 3 of the Evidence Act. This is because being a 'fact in issue', it would have to be established as proved by tendering evidence as per Sections 5 and 9 of the Evidence Act. Therefore, the first contention of the petitioner is rejected." 16. In so far Ext-3 is concerned, it is stated to be a certified copy of the voters list of 1997 in respect of Jamunamukh Constituency. Here the three voters are Wahab, son of Sajid, aged 62 years; Samsun, wife of Wahab, aged 50 years; and Jainal, son of Moin, aged 25 years. They were shown as residents of village Pabbijuri under Murajhar Police Station. Even if we ignore or overlook the discrepancy in age of Jainal, what is strange about this document is that neither in the written statement nor in the evidence-in-chief, petitioner mentioned that he had a paternal aunt by the name of Samsun and paternal uncle by the name of Wahab with whom he stayed when he was 3 years of old. We have already noticed the absence of Samsun in Exts-1 and 2. That apart, in this exhibit itself, Jainal appears along with Wahab and Samsun. What about the children of Wahab and Samsun? Did they have any children? If so why their names are not included in Ext-3 and instead Jainal is mentioned? These are legitimate questions which give rise to genuine suspicion about the truthfulness of the narrative presented by the petitioner. What about the children of Wahab and Samsun? Did they have any children? If so why their names are not included in Ext-3 and instead Jainal is mentioned? These are legitimate questions which give rise to genuine suspicion about the truthfulness of the narrative presented by the petitioner. Even if we overlook the discrepancy in the name, such as, Jainal and Jainal Uddin and Moin Uddin and Moin, because of the surrounding circumstances, which we have noticed, it cannot be said for sure that petitioner is the same person as Jainal, whose name appears in Ext-3. 17. Petitioner has sworn an affidavit which he filed and marked as Ext-9, stating that Jainal and Jainal Uddin is one and the same person, so also Moin and Moin Uddin. Such a self-serving affidavit is no evidence in the context of Section 3 of the Indian Evidence Act, 1872. This position has been explained by the Supreme Court in Smti. Sudha Devi v. MP Narayanan, reported in AIR 1988 SC 1381 . Referring to Sections 1 and 3 of the Indian Evidence Act and Order 19 Rule 1 of the Code of Civil Procedure, it was held that affidavit by a party explaining discrepancy in name, age of self, father etc. is no evidence. This position has been further clarified by the Delhi High Court in Delhi Lotteries v. Rajesh Aggarwal, reported in AIR 1988 Delhi 332 and by the Himachal Pradesh High Court in Smti. Nirmala v. Hari Singh, reported in AIR 2001 HP 1 by holding that an affidavit filed by a party suo moto and without any direction of the Court cannot be termed as evidence; affidavit is not included as evidence unless, law specifically permits for proof of anything by affidavit. 18. Adverting to Ext-6 and Ext-8, we find that Ext-6 is a certificate issued by one Md. Nurul Islam on 03.10.2015 certifying that Md. Jainal Uddin was the son of Lt. Moin Uddin of Padumpukhuri village. Ext-8 is a certificate dated 20.04.2012, issued by one Md. Jamir Uddin, Headmaster of Burangatoli Primary School certifying that Jainal was the son of Lt. Moinuddin. In so far Ext-6 is concerned, the author of the certificate Md. Nurul Islam himself mentioned therein that name of the petitioner appeared in the voters list of 2010 and that he was a permanent resident of village Padumpukhuri. 19. Jamir Uddin, Headmaster of Burangatoli Primary School certifying that Jainal was the son of Lt. Moinuddin. In so far Ext-6 is concerned, the author of the certificate Md. Nurul Islam himself mentioned therein that name of the petitioner appeared in the voters list of 2010 and that he was a permanent resident of village Padumpukhuri. 19. In Exts-1 and 2, Muhib Ali and Moin Uddin were residents of village Borangatoli and in Ext-3, Wahab, Samsun and Jainal were residents of village Pabhijuri. Therefore, it is not understood as to how and when petitioner migrated to village Padumpukhuri and how the Gaonburah of the said village could certify that petitioner was a permanent resident of that village. Be that as it may, this Gaonburah did not depose before the Tribunal to prove the contents of Ext-6. Therefore, Ext-6 cannot be said to have been proved, not to speak of its contents. 20. In so far Ext-8 is concerned, on the face of it, we have grave doubts about the genuineness of this document. Nowhere, it is stated whether Borangatoli Primary School was a Government school or a private school. But, in this certificate, the State Emblem of India is embossed at the top. As per the State Emblem of India (Regulation of Use) Rules, 2007 framed by the Central Government in exercise of the powers conferred by Section 11 of the State Emblem of India (Prohibition of Improper Use) Act, 2005, more particularly, Rule 5 thereof, use of the official emblem is restricted to the authorities specified in Schedule-I. Rule 10 makes the restriction more specific. It says that no person, including former Ministers, former Members of Parliament, former Members of Legislative Assemblies, former Judges and retired Government officials (other than those authorized under the Rules) shall use the emblem in any manner. Sub-Rule (2) of Rule 10 clearly provides that no Commission or Committee, Public Sector Undertaking, Bank, Municipal Council, Panchayat Raj Institution, non-governmental organization, University (other than those authorized under the Rules) shall use the emblem in any manner. Schedule-I to the Rules contains a list of constitutional and statutory authorities, ministries or departments of the Central Government, State Governments or Union Territory Administrations and other Government functionaries which may use the emblem. 21. Schedule-I to the Rules contains a list of constitutional and statutory authorities, ministries or departments of the Central Government, State Governments or Union Territory Administrations and other Government functionaries which may use the emblem. 21. Therefore, it is evident that Headmaster of a Primary School is not authorized to use the State Emblem of India in any certificate issued by the said authority. This itself makes this document inadmissible in evidence. That apart, this document itself is full of contradictions. As per this document, Jainal Uddin was a resident of village-Padumpukhuri and he had left the school on 31.12.1976; we have seen that till 1970, the residence of Moin Uddin, whom the petitioner claims to be his father, was at village-Borangatoli where the petitioner claimed to have been born. Thereafter, according to the petitioner, he resided with his paternal aunt at Pabhijuri village. Therefore, Jainal Uddin was not a resident of Padumpukhuri village. Secondly, as per this certificate, petitioner was born on 1.1.1969 but, in the last line of the certificate, it was stated that as on 31 December, 1976, petitioner was eight years old, which is arithmetically incorrect (it should have been 7 years of age). Even if we ignore such mistake, what is important to note is that petitioner had left school on 31.12.1976 after passing Class-II and this certificate was issued on 20.04.2012, 36 years thereafter. This Jamir Uddin, who claims to be the Headmaster of the School, was summoned by the Tribunal. At this stage, we may mention that we fail to understand as to why Tribunal on its own had summoned this person to be a witness of the Tribunal when the record does not disclose that petitioner had given notice to Jamir Uddin to depose in his favour before the Tribunal. This position is quite clear if we look at Section 66 of the Indian Evidence Act, 1872. However, this aspect of the matter need not detain us much longer. His testimony before the Tribunal, which was recorded without administering any oath, renders the testimony of Jainal Uddin wholly inadmissible. Even then, from this testimony, we find that, according to Jamir Uddin, he had studied in the same school during 1975-76 and he knew the petitioner. In 1992, he joined the school as a teacher and in 2009, he became the Headmaster; on that basis, he issued the certificate. 22. Even then, from this testimony, we find that, according to Jamir Uddin, he had studied in the same school during 1975-76 and he knew the petitioner. In 1992, he joined the school as a teacher and in 2009, he became the Headmaster; on that basis, he issued the certificate. 22. Learned counsel for the petitioner would like to contend that by such testimony, Ext-8 and its contents stood proved; we are afraid, we can accept such untenable contention made by learned counsel for the petitioner. Irrespective of the inadmissibility of the testimony and the apparent contradictions striking at the relevancy of the document, a school certificate containing age of a student cannot be proved in this manner. Supreme Court in Birad Mal Singhvi v. Anand Purohit, reported in 1988 (supp) SCC 604 has laid down the basic guidelines as to how date of birth recorded in school certificate or school register has to be proved. In the absence of evidence of the person, who made the entry in the school register or who gave the information about the date of birth, such a certificate would have no evidentiary value. The school register has to be produced and proved. Moreover, date of birth mentioned in the school register or school certificate would have no probative value unless the parents are examined or the person, on whose information the entry was made, is examined. 23. If the above exhibits are excluded, there is no linkage between the petitioner and Moin Uddin, whom he claims to be his father relatable to a period prior to 25.03.1971, which is a cut off date for identification of foreigners in the state of Assam as per Section 6A of the Citizenship Act, 1955, as amended. 24. In such circumstances, we are of the unhesitant view that the narrative presented by the petitioner suffers from multiple material omissions and contradictions rendering the same wholly improbable. As a result, he failed to prove the crucial fact in issue i.e., linkage between him and Moinuddin. 25. Petitioner had failed to discharge his burden under Section 9 of the Foreigners Act, 1946 to prove that he is not a foreigner but, a citizen of India. 26. Consequently, we find no merit in the writ petition, which is accordingly dismissed. 27. Interim order passed earlier stands vacated. 28. 25. Petitioner had failed to discharge his burden under Section 9 of the Foreigners Act, 1946 to prove that he is not a foreigner but, a citizen of India. 26. Consequently, we find no merit in the writ petition, which is accordingly dismissed. 27. Interim order passed earlier stands vacated. 28. Registry to send down the LCR forthwith and inform the concerned Foreigners Tribunal, Deputy Commissioner and Superintendent of Police (Border) for necessary follow-up steps. A copy of this order be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC.