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2018 DIGILAW 848 (GAU)

Sajeda Khatun v. Union of India

2018-05-22

NELSON SAILO, UJJAL BHUYAN

body2018
ORDER : Ujjal Bhuyan, J. 1. This case was heard on 26.04.2018 and today is fixed for delivery of order. We have heard Mr. J. Ahmed, learned counsel for the petitioner and Mr. J. Payeng, learned Special Counsel, Foreigners Tribunal (FT). 2. By filing this petition under Article 226 of the Constitution of India, petitioner has assailed the legality and correctness of the order dated 29.02.2016 passed by the Foreigners Tribunal-8th, Barpeta in FT Case No. 60/2015 (Union of India Vs. Sajeda Khatun @ Begum) 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 25.3.1971. 3. Notice in this case was issued on 06.10.2016. While requisitioning the case record, an interim order was passed to the effect that petitioner should be allowed to remain on bail subject to her appearance before the Superintendent of Police (Border), Barpeta and furnishing of adequate surety. 4. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record, including the record requisitioned from the Tribunal. 5. Record discloses that initially, Superintendent of Police (Border), Barpeta had made a reference to the Illegal Migrants (Determination) Tribunal, Barpeta under Section 8(1) of the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) suspecting the petitioner to be an illegal migrant as defined under the said Act. Be it stated that under Section 3(1)(C) of the IMDT Act, an illegal migrant was defined as a foreigner who had illegally entered into India after 25.3.1971. 6. In Sarbananda Sonowal Vs. Union of India, (2005) 5 SCC 665 , Supreme Court declared the IMDT Act as unconstitutional with the direction that references which were pending before the Tribunals constituted under the IMDT Act should be transferred to the Tribunals constituted under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964. 7. In view of the aforesaid, the related reference was transferred to the Foreigners Tri-bunal-8th, Barpeta (Tribunal) where it was re-registered as FT Case No. 60/2015. 8. In her written statement filed before the Tribunal on 15.12.2015 petitioner stated that she was born and brought up at village Menisimla under Sarbhog Police Station in the district of Barpeta. 7. In view of the aforesaid, the related reference was transferred to the Foreigners Tri-bunal-8th, Barpeta (Tribunal) where it was re-registered as FT Case No. 60/2015. 8. In her written statement filed before the Tribunal on 15.12.2015 petitioner stated that she was born and brought up at village Menisimla under Sarbhog Police Station in the district of Barpeta. Her father was Amzad Ali @ Amzad Ali Sarkar whose name appeared in the National Register of Citizens (NRC), 1951 and in the voters lists of 1966, 1970 and 1993 in respect of Jania constituency. Because of erosion by the river Beki, family shifted from village Menisimla to village Charcharia. Father's name again appeared in the voters lists of 1999 and 2000 in respect of Jania constituency. On attaining marriageable age, petitioner married Abdul Mannan, son of Sikander Ali, of village Ghugubari under Sarbhog Police Station in the district of Barpeta. Her name appeared in the voters lists of 1997, 2005 and 2010 along with her husband. In the supporting affidavit, petitioner disclosed her age as 46 years which would mean that she was born sometime in the year 1969 (2015 - 1969). 9. Thus, from the written statement filed by the petitioner, what is discernible is that according to the petitioner, her father was Amzad Ali @ Amzad Ali Sarkar who was a citizen of India. Being his daughter, she was therefore, a citizen of India. 10. Petitioner was subjected to cross-examination. In her cross-examination, she stated that her father Amzad Ali was still alive. Her stepmother was Moimona Khatun and her mother was Sairon Khatun who has expired. She also stated that she had brothers by the names of Sattar Ali, Alauddin, Mofiz Ali, Adut Ali and Hafez Ali. One Alauddin deposed as DW2 on behalf of the petitioner who identified himself as the elder brother of the petitioner. 11. Let us examine as to whether petitioner could prove the above facts-in-issue by adducing cogent, reliable and admissible evidence. 12. Petitioner filed her evidence-in-chief by way of affidavit on 04.01.2016 stating more or less the same thing as narrated in the written statement. 13. Proceeding to the exhibits, we find that Ext. A is a photostat copy of the voters list of 1966 in respect of Jania constituency. Here the voter at Serial No. 91 was Amzad Ali Sarkar, son of Rasul Mahmud, aged 30 years. 14. 13. Proceeding to the exhibits, we find that Ext. A is a photostat copy of the voters list of 1966 in respect of Jania constituency. Here the voter at Serial No. 91 was Amzad Ali Sarkar, son of Rasul Mahmud, aged 30 years. 14. At this stage, we may mention that neither in her written statement nor in her evidence-in-chief, petitioner mentioned the name of her paternal grandfather and grandmother which is a material fact. 15. Leaving aside that aspect for a moment, we may proceed to Ext. B which is an extract of the voters list of 1970 in respect of Jania constituency. Here, the voter at Serial No. 109 was Amzad Ali, son of Rasul Mahmud, aged 35 years. Even if we overlook the discrepancy in the name for the time-being, i.e., Amzad Ali and Amzad Ali Sarkar, a bare look at Ext. B would reveal that it was not a photostat copy made from a certified copy. There is no certification at the bottom of Ext. B by the competent authority certifying that it was a true copy from the original. In the absence of such certification, not only Ext. B cannot be treated as certified copy but it raises grave doubts about the authenticity of this exhibit itself as per requirement of Section 76 of the Indian Evidence Act, 1872. It may be mentioned that if Ext. B is not a certified copy, then it would not be secondary evidence within the meaning of Section 63 of the Indian Evidence Act, 1872. Ext. B is certainly not a primary evidence and if it is not a secondary evidence, then it has no evidentiary value because as per Section 61 of the Indian Evidence Act, 1872, contents of documents may be proved either by primary or by secondary evidence. It was, therefore, necessary for the petitioner to have proved the contents of the above document by comparing with the primary evidence, i.e., the original electoral roll through the testimony of the lawful custodian of such electoral roll. 16. We now proceed to Ext. C which is a photocopy of the voters list of 1993 in respect of Jania constituency. Here the voter at Serial No. 64 was Amzad Ali, son of Sikander, aged 36 years. The voter at Serial No. 65 was Jamela Khatun, wife of Amzad, aged 28 years. 16.1. 16. We now proceed to Ext. C which is a photocopy of the voters list of 1993 in respect of Jania constituency. Here the voter at Serial No. 64 was Amzad Ali, son of Sikander, aged 36 years. The voter at Serial No. 65 was Jamela Khatun, wife of Amzad, aged 28 years. 16.1. In her cross-examination, petitioner had stated that her father was Amzad Ali and grandfather was Rasul Mahmud but in Ext. C, we find that voter was Amzad Ali, son of Sikander and not Rasul Mahmud. That apart, petitioner had stated that her mother was Sairon Khatun whereas her stepmother was Moimona Khatun but in Ext. C, we find Jamela Khatun to be the wife of Amzad, neither Sairon Khatun nor Moimona Khatun. 16.2. In view of such material inconsistencies, Ext. C cannot be relied upon. Earlier we have seen Ext. B to be not an admissible piece of evidence. 17. Ext. D is stated to be photocopy of voters list of 1997 in respect of Jania constituency. Here the voters were Amzad Ali, son of Rasul, aged 58 years; Moimona Khatun, wife of Amzad Ali, aged 40 years; Alauddin, son of Amzad, aged 29 years; and Ayesha Khatun, wife of Alauddin, aged 22 years. But in this document also, there is no certification by the competent authority that it was a true copy from the original as per requirement of Section 76 of the Indian Evidence Act, 1872 and, therefore, Ext. D cannot be construed as a certified copy and is therefore not secondary evidence within the meaning of Section 63 of the Evidence Act. 18. It was in Ext. E which was a photocopy of certified copy extract of the voters list of 2010 in respect of Jania constituency that Amzad Ali, son of Rasul Mamud, aged 68 years appeared as a voter. 19. We have already held that Ext. B, C and D to be either inadmissible in evidence or not at all reliable. 20. That leaves Ext. A and E. In Ext. A, the voter was Amzad Ali Sarkar whereas in Ext. E, it was Amzad Ali. In Ext. A (1966), Amzad Ali Sarkar was 30 years of age whereas in Ext. E (2010), Amzad Ali was 68 years of age. If Amzad Ali Sarkar of Ext. A and Amzad Ali of Ext. 20. That leaves Ext. A and E. In Ext. A, the voter was Amzad Ali Sarkar whereas in Ext. E, it was Amzad Ali. In Ext. A (1966), Amzad Ali Sarkar was 30 years of age whereas in Ext. E (2010), Amzad Ali was 68 years of age. If Amzad Ali Sarkar of Ext. A and Amzad Ali of Ext. E was one and the same person, then Amzad Ali in Ext. E (2010) should have been 74 years of age and not 68 years of age. 21. Even if we overlook such discrepancy in age, the crucial point is linkage of the petitioner Sajeda Khatun with Amzad Ali or Amzad Ali Sarkar. 22. In the voters lists of Sajeda Khatun, i.e., Ext. G, H and I, she is shown as wife of Mannan and, therefore, those documents are of no use to the petitioner in so far linkage with Amzad Ali or Amzad Ali Sarkar is concerned, which is most crucial. 23. That brings us to Ext. J which is certificate dated 02.11.2015 issued by the Gaonburah of Charcharia village certifying that Sajeda Khatun was the daughter of Amzad Ali and that she had married Abul Mannan, son of Sikander Ali. The State Emblem of India is embossed at the top of this certificate. Under Rule 10(2) of the State Emblem of India (Regulation of Use) Rules, 2007 framed under the State Emblem of India (Prohibition of Improper Use) Act, 2005, a Gaonburah is not competent to use the State Emblem of India in any manner. Such unauthorized use of the State Emblem of India has rendered this certificate to be wholly inadmissible in evidence. Under Rule 10(2) of the State Emblem of India (Regulation of Use) Rules, 2007 framed under the State Emblem of India (Prohibition of Improper Use) Act, 2005, a Gaonburah is not competent to use the State Emblem of India in any manner. Such unauthorized use of the State Emblem of India has rendered this certificate to be wholly inadmissible in evidence. 23.1. Be that as it may, we find from the record that one Alauddin, Gaonburah of Charcharia village had deposed before the Tribunal. In his deposition, he stated that he knew the father of petitioner from approximately 1970/1972. They had studied in the same school. Father's name was Amzad Ali. 23.1. Be that as it may, we find from the record that one Alauddin, Gaonburah of Charcharia village had deposed before the Tribunal. In his deposition, he stated that he knew the father of petitioner from approximately 1970/1972. They had studied in the same school. Father's name was Amzad Ali. He was quite categorical in saying that he did not know the father by any other name. Amzad Ali and his wife were alive. First wife was Sairon Nessa. He stated that he had issued Ext. J certificate. 23.2. From the evidence of witness Alauddin, what transpires is that Amzad Ali had only one name, i.e., Amzad Ali. Though he stated that he knew the petitioner's father from approximately 1970/1972, that was a statement made from personal memory. He did not being any contemporaneous record to show existence of Amzad Ali from 1970/1972. Therefore, on the basis of such testimony, it cannot be said that contents of Ext. J were proved. Not only the certificate but contents thereof were required to be proved. Therefore, Ext. J besides remaining unproved, was also not admissible in evidence. 23.3. But one take away from the evidence of Gaonburah is that father of the petitioner was known by only one name i.e., Amzad Ali. Therefore, attempt by the petitioner to project Amzad Ali Sarkar of Ext. A (1966 voters list) to be her father is clearly unsustainable. Amzad Ali's presence in Indian soil is thus traceable only to 2010 and not beyond. 24. Net result of the above discussion is that petitioner had failed to prove the above facts-in-issue by adducing cogent, reliable and admissible evidence. Narrative presented by the petitioner suffers from multiple material contradictions rendering the same wholly improbable. In such circumstances, it cannot be said that petitioner had discharged her burden under Section 9 of the Foreigners Act, 1946 to prove that she was not a foreigner but a citizen of India. 25. Consequently, we do not find any merit in the writ petition, which is accordingly dismissed. Interim order passed earlier stands vacated. 26. Registry to send down the LCR and inform the concerned Foreigners Tribunal, Superintendent of Police (B) and Deputy Commissioner for taking necessary follow-up steps. Copies of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC.