JUDGMENT : N. KOTISWAR SINGH, J. 1. Heard Mr. Z. Hammad, learned counsel for the petitioner. Also heard Ms. A. Verma, learned Standing Counsel, Foreigners Tribunal appearing for respondent Nos. 2, 4 and 5 and Ms. U. Das, learned Additional Senior Government Advocate, Assam appearing for respondent No. 3. 2. In this petition, the petitioner has challenged the opinion dated 21.11.2016 passed by the learned Foreigners Tribunal-5th, Morigaon, Assam in Case No. F.T. 29/15 (New Number) and F.T. 757/12 (Old Number) arising out of Case No. 379/06 dated 26.7.2006 by which the petitioner who was the proceeded No. 2 was declared a foreigner of post 25.03.1971. 3. In the aforesaid proceeding, not only the present petitioner, Musstt. Jahura Khatun @ Sahura Khatun @ Sahura but also her husband Abdul Rashid and their two children, namely Md. Fakaruddin and Md. Jahirul Islam were also proceeded. 4. By the aforesaid impugned opinion dated 21.11.2016, the Tribunal held declared the petitioner’s husband Abdul Rashid and son Jahirul Islam as Indians. However, the Tribunal held that the O.P. No. 2 Musstt. Jahura Khatun @ Sahura Khatun @ Safura Khatun, wife of Abdul Rashid resident of village Saruchala, P.S. Moirabai, District-Morigaon, the present petitioner has miserably failed to establish her linkage with Jinnat Ali whom she claimed as father and accordingly, declared the petitioner, wife of Abdul Rashid to be a foreigner. 5. For the aforesaid reason, the impugned order dated 21.11.2016 has been challenged only by the present petitioner Musstt. Jahura Khatun @ Sahura Khatun @ Sahura who was a proceeded No. 2 before the Tribunal. 6. The learned Counsel for the petitioner has raised the preliminary issue contending that the opinion rendered by the Tribunal is illegal inasmuch as before the reference was made and the Tribunal gave its finding, there was no enquiry or reference against her and as such, it has been submitted on the strength of the decision of this Court rendered in Sudhir Roy and Others vs. Union of India and Others, 2019 (1) GLT 353 [WP (C) No. 6790/2018, decided on 04.01.2019] that if there was no valid reference, the proceeding would be rendered illegal. 7. In the present case, it has been submitted that since there was no enquiry or reference against the present petitioner, the opinion rendered by the Tribunal is illegal. 8. As regards the above position, Ms. 7. In the present case, it has been submitted that since there was no enquiry or reference against the present petitioner, the opinion rendered by the Tribunal is illegal. 8. As regards the above position, Ms. Verma, learned Standing Counsel, Foreigners Tribunal has submitted that before the proceeded is proceeded, there must be a valid reference proceeded by an enquiry. 9. Having heard the learned counsel for the parties and on perusal of the original records requisitioned, what we have noted is that in the enquiry conducted by the competent authority, it was made only against Md. Abdul Rashid though the name of the present petitioner is reflected as wife of the said Abdul Rashid and two children are also mentioned in the enquiry report. The Superintendent of Police (Border), Morigaon while making the reference held that “it is established in a prima-facie manner that Md. Abdul Rashid, S/o Ahmed Ali, Vill. Sarusala, P.S. Moirabari, District-Morigaon, Assam and his family members were entered India after 25th March, 1971.” Accordingly, the Superintendent of Police (Border), Morigaon referred the matter to the Foreigners Tribunal No. 2, Morigaon for taking necessary action as per provision of the Foreigners Tribunal Order, 1964 amended 1985 and 2006 with reference to the criteria under Citizenship (amended) Act 1985 by stating that the persons and his family members had entered India after 25th March 1971 and they were ordinarily resident of Assam since their entry and they were detected as foreigners. 10. As regards the requirement of proper reference to be made after an enquiry before the a Tribunal gives its opinion, we may refer to the decision of the Full Bench of this Court in State of Assam and Others vs. Moslem Mondal, 2013 (1) GLT 809. 10. As regards the requirement of proper reference to be made after an enquiry before the a Tribunal gives its opinion, we may refer to the decision of the Full Bench of this Court in State of Assam and Others vs. Moslem Mondal, 2013 (1) GLT 809. While dealing with this issue, it was observed by the Full Bench in Moslem Mondal (supra) that one of the contentions of the proceeded was that though the referral authority is required to make the reference to the Tribunal after making a fair investigation, no such proper and fair investigation is conducted and the police at their own whims and caprice gives a report, in some cases even without visiting the place where such proceeded resides and also without giving any opportunity to produce the relevant documents to substantiate that the proceeded is not a foreigner, and such report is accepted by the referral authority and accordingly the reference is made to the Tribunal, on the basis of which the reference is registered against such person (vide Para No. 96 of Moslem Mondal). The Full Bench thereafter, made the observation in Para No. 97 of Moslem Mondal (supra) that fair investigation and fair trail being the basic fundamental/human right of a person, which are concomitant to preservation of the fundamental right of a person under Article 21 of the Constitution, there has to be a fair and proper investigation by the investigating agency before making a reference to the Tribunal. It was further observed that in such investigation the attempt has to be made to find out the person against whom the investigation is made, so that the person concerned is given the opportunity to demonstrate at that stage itself that he is not a foreigner. In Para 98 of Moslem Mondal (supra), the Full Bench observed that the reference by the referral authority also cannot be mechanical. The referral authority has to apply his mind on the materials collected by the investigating officer during investigation and make the reference on being satisfied that there are grounds for making such reference. It was also observed that the referral authority while making the reference, shall produce all the materials collected during investigation before the Tribunal, as the Tribunal is required to prima facie to satisfy itself about the existence of the main grounds before issuing the notice to the proceeded. It was also observed that the referral authority while making the reference, shall produce all the materials collected during investigation before the Tribunal, as the Tribunal is required to prima facie to satisfy itself about the existence of the main grounds before issuing the notice to the proceeded. From the above observation of the Full Bench of this Court, it can be clearly inferred that the following conditions should be fulfilled by a Tribunal before a person is proceeded: (i) There must be a valid reference. (ii) That reference must be made after a proper investigation is conducted. (iii) The Tribunal must be satisfied on the basis of the materials collected during investigation that grounds exist before issuing notice to the proceeded. 11. In the present case, what we have noted from the original records produced before us is that there was an enquiry initiated against Md. Abdul Rashid, son of Ahmed Ali. However, no such enquiry was held against the present petitioner even though her name was mentioned as the wife of the aforesaid Abdul Rashid. 12. Two witnesses were examined by enquiring authority, namely, Nuruddin son of Lt. Rosan Ali of village Saruchala, P.S. Moirabari, District Morigaon, Assam and another Md. Nuruddin, son of Lt. Abdul Rahman of the said village. Though the aforesaid witnesses stated about Abdul Rashid having allegedly entering India from Bangladesh in search of better means of livelihood, there is not even a whisper in their statement against the petitioner doubting her citizenship. The petitioner, being the wife of the said Ahmed Ali came to be related to her husband only after their marriage and as such her citizenship must be dealt with separately requiring a separate inquiry against her, or at least, there could have been simultaneous enquiry. 13. We are satisfied from the records that there was no enquiry at all against the present petitioner, Musstt. Jahura Khatun. Resultantly, if there was no enquiry against the petitioner, no reference could have been made. 14. Accordingly, we are of the view that the reference made by the Superintendent of Police (Border), Morigaon merely mentioning that the person and his family members had entered does not stand the scrutiny of law as far as the petitioner is concerned. 15. Resultantly, if there was no enquiry against the petitioner, no reference could have been made. 14. Accordingly, we are of the view that the reference made by the Superintendent of Police (Border), Morigaon merely mentioning that the person and his family members had entered does not stand the scrutiny of law as far as the petitioner is concerned. 15. Since we find that there was no enquiry against the present petitioner, the reference could not have been made against the petitioner and under the circumstances, the Tribunal could not have decided on the citizenship of the present petitioner. 16. For the reasons discussed above, we are satisfied that the impugned order dated 21.11.2016 passed by the learned Foreigners Tribuna-5th, Morigaon, Assam in Case No. F.T. 29/15 (New Number) and F.T. 757/12 (Old Number) cannot be sustained in law and accordingly, the aforesaid impugned order dated 21.11.2016 passed in Case No. F.T. 29/15 (New Number) and F.T. 757/12 (Old Number) as far as the present petitioner, namely, Musstt. Jahura Khatun @ Sahura Khatun @ Sahura @ Safura Khatun, wife of Abdul Rashid, resident of village Saruchala, P.S. Moirabari, District Morigaon, Assam is concerned is set aside. 17. Accordingly, the present petition is allowed. However, liberty is always with the State to proceed against anyone who is suspected to be illegal immigrant in accordance with law. 18. LCR be remitted forthwith to the concerned Foreigners Tribunal.