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2019 DIGILAW 10 (GAU)

Sudhir Roy v. Union of India

2019-01-04

ACHINTYA MALLA BUJOR BARUA, PRASANTA KUMAR DEKA

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JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. GP Bhowmik, learned senior counsel for the petitioner. Also heard Mr. AI Ali, learned counsel for the Election Commission of India and Mr. UK Nair, learned senior counsel for the State of Assam appearing for the Foreigners' Tribunal and Border Areas as well as Ms. G Sarma, learned counsel for the authorities under the Union of India. 2. The petitioner, Sudhir Roy was enquired upon by the respondent authorities and on being satisfied that appropriate grounds do exist, his case was referred to the Foreigners Tribunal of Cachar for an opinion as to whether he is a foreigner within the definition under the Foreigners Act of 1946. The Tribunal by its order dated 17.05.2018 had held the petitioner to be a foreigner and in its order had accordingly declared the petitioner, Sudhir Roy, his wife Romita Roy, Sons Sontosh Roy and Piyush Roy and daughters Smti Rimpi Roy and Smti Mampi Roy also to be foreigners, who had entered Assam/India after 25.03.1971 from the specified territory. 3. Mr. G.P. Bhowmik, learned senior counsel contends that in respect of Sudhir Roy, the evidence rendered by him could not be completed inasmuch as, he had fallen ill on the given date. Thereafter, the Tribunal had offered two further dates to the petitioner to complete his evidence, but as because he was suffering from Typhoid at that relevant point of time he could not give his evidence before the Tribunal. It is clarified that as per the records the examination-in-chief of the petitioner was complete, but he could not be subjected to cross examination. 4. In order to substantiate his claim the petitioner had produced a certificate dated 31.07.2018 of the Senior Medical and Health Officer, Kalain F.R.U. in the Cachar district wherein it is certified that the petitioner was under the treatment of the concerned Doctor from 01.05.2018 to 31.07.2018 due to typhoid fever. 5. We take note that the certificate was issued by a Government Doctor and we find no reason to disbelieve the said certificate. In the circumstance, Mr. U.K. Nair, learned senior counsel, Government of Assam appearing for the Foreigners Tribunal and Border Areas also agrees that the interest of justice requires that the petitioner be given an opportunity to be cross-examined. 6. In the circumstance, Mr. U.K. Nair, learned senior counsel, Government of Assam appearing for the Foreigners Tribunal and Border Areas also agrees that the interest of justice requires that the petitioner be given an opportunity to be cross-examined. 6. Accordingly, the Judgment and Order dated 17.05.2018 of the Foreigners Tribunal 4th Cachar, Silchar in Case No. F.T. 4th/2/2015 is set aside and the matter is remanded back to the Foreigners Tribunal for adjudication from the stage of cross examining the petitioner. It is accordingly directed that the petitioner shall now appear before the Foreigners Tribunal 4th Cachar at Silchar on 28.01.2019. Upon such appearance of the petitioner, the Tribunal shall proceed against him from the stage of his cross examination and pass its reasoned order thereon. 7. It is stated by Mr. G.P. Bhowmik, learned senior counsel for the petitioner that the petitioner has some other witnesses to be examined on his behalf. On a query being made as to whether such witnesses were included in the list of witnesses provided by the petitioner, it is stated that the Foreigners Tribunal follows the procedure where a list of witnesses is not required to be given. In view of the above, it is provided that the Foreigners Tribunal shall proceed against the petitioner from the stage of his cross-examination and if the petitioner desires he may be allowed to adduce any other witnesses as may be advised. 8. Accordingly, it is directed that the Tribunal shall complete the proceeding against the petitioner within a period of 30(thirty) days from the date of his appearance i.e. 28.1.2019. It is further provided that in the event, the petitioner does not appear before the Tribunal or does not cooperate with the conduct of the proceeding, the Tribunal would be at liberty to pass any order as may be permissible under the law. 9. As regards the declaration of the wife, sons and daughters of the petitioner to be foreigners, we have perused the records and have taken note of that the reference was made only against the petitioner and not against his wife, sons and daughters. Although the law in this respect has been settled by this Court in Aktara Khatun Vs. 9. As regards the declaration of the wife, sons and daughters of the petitioner to be foreigners, we have perused the records and have taken note of that the reference was made only against the petitioner and not against his wife, sons and daughters. Although the law in this respect has been settled by this Court in Aktara Khatun Vs. State of Assam & Ors., reported in 2017 (2) GLT 974 that a presumption can also be drawn against the family members of the proceedee who has been declared as foreigner, but at the same time we are also of the view that such presumption would by itself not lead to a conclusion that the family members of a proceedee who has been declared to be a foreigner are also foreigners. The same may be a good cause for initiating an enquiry and making a reference against the family members, but without following the due procedure of law of conducting an enquiry and making a reference and being adjudicated by the Tribunal, the family members cannot be declared to be foreigners. 10. In view of the above, the portion of the order dated 17.05.2018 by which the wife of the petitioner, Smti Romita Roy, his two sons Sontosh Roy and Piyush Roy and two daughters, namely, Smti Rimpi Roy and Smti Mampi Roy were also declared to be foreigners, is accordingly set aside. 11. In view of the above, the proceeding shall now be initiated only against the petitioner, Sudhir Roy. 12. Writ petition, accordingly, stands allowed to the extent indicated hereinabove.