IN THE GAUHATI HIGH COURT

Transcription

1 1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM, AND ARUNACHAL PRADESH) WP(C) No.7347/2016 Jehirul Islam, Son of Md. Abdul Jalil Ali, Resident of village- Dimu, P.S.- Rangia, District- Kamrup, Assam. -Versus-..Petitioner 1. Union of India, represented by the Secretary to the Government of India, Ministry of Home Affairs, New Delhi. 2. State of Assam, Notice through the Chief Secretary to the Government of Assam, Dispur. 3. Secretary to the Government of Assam, Home Department, Dispur. 4. Deputy Commissioner, Kamrup. 5. Superintendent of Police (B), Kamrup...Respondents BEFORE HON BLE MR. JUSTICE UJJAL BHUYAN HON BLE MR. JUSTICE PARAN KUMAR PHUKAN Advocate for the Petitioner Advocate for the Respondent No. 1 Advocate for the Respondent Nos. 2 to 5 : Mr. D. Choudhury. : Ms. P. Baruah, CGC. : Mr. H. K. Hazarika, GA, Assam. Date of Hearing : Date of Judgment :

2 2 (U. Bhuyan,J) JUDGMENT AND ORDER (ORAL) Heard Mr. D. Choudhury, learned counsel appearing for the petitioner, Ms. P. Baruah, learned counsel for the Central Government and Mr. H.K. Hazarika, learned Government Advocate, Assam. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated , passed by the Foreigners Tribunal No.5, Kamrup, Rangia in F.T. Case No.1237/2008 declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after It appears that a reference was made by the Superintendent of Police (Border), Kamrup under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964 with the allegation that the petitioner was a foreigner who had illegally entered into India (Assam) from the specified territory i.e., Bangladesh after On receipt of the reference, F.T. Case No. 1237/2008 was registered and after creation of additional Tribunals, was assigned to the Foreigners Tribunal No.5, Kamrup, Rangia (Tribunal) for opinion. Notice issued by the Tribunal was served upon the petitioner whereafter he entered appearance and filed written statement along with certain documents denying the allegation made by claiming to be citizen of India by birth. Petitioner also gave evidence as his witness and exhibited a number of documents. After hearing the matter, Tribunal passed the order dated answering the reference in favour of the State in the above manner. 5. Aggrieved, present writ petition has been filed. 6. When the writ petition was moved on it was submitted that following the order passed by the Tribunal, petitioner was taken into custody. This Court while issuing notice and requisitioning the case record, passed an interim order to the effect that petitioner should not be deported from India until further order.

3 3 7. While learned counsel for the petitioner has assailed the finding recorded by the Tribunal on the ground that evidence tendered by the petitioner was not properly appreciated, learned counsel for the respondents have extended support to the order impugned. 8. Submissions made by learned counsel for the parties have received the due consideration of the Court. Also perused the materials on record. 9. At the outset, it would be apposite to refer to the order dated passed by the Tribunal, relevant portion of which is extracted here in below:--- 8.The O.P. has stated in his W.S. that he is a permanent resident of Village- Bhangnamari and S/o Jalil Ali but not Abdul Jalil in support of which he has produced a certificate (Exhibit A) issued by Gaon Burha of Village- Bhangnamari, P.O. & P.S. Bhangnamari which is not admissible in this Tribunal as a documentary evidence since it is not a Govt. document as because it (Exhibit- A ) lacks the Govt. emblem on the body of this document. He has further submitted a certificate (Exhibit B ) from Govt. Gaon Burha of village- Naburka Satra, P.O. Khudra Dimu, P.S. Rangia, Dist- Kamrup (Assam) which mentions that the name of the father of the O.P. is Md. Abdul Jalil but the certificate of Gaon Burha (Exhibit A ) mentions the name of the father of the O.P. as Jalil Ali which is contradictory and is a major discrepancy. 9. That the O.P. has stated in his W.S. as well as in his deposition that the name of his grandfather is Tafiz Mistry in support of which the O.P. has produced certified copy of Voter List of 1966 (Exhibit C ) where his grandfather s name appeared under Sl. No. 174 of 54 No. Chenga L.A.C. 10. The O.P. has produced certified copy of voter list of 1997 (Exhibit- G ) of 60 Nos. Barkhetri L.A.C. in support of his claim and the O.P. in his deposition as well as in W.S. stated placing reliance on aforementioned voter list (Exhibit- G ) that his name appeared under voter serial Nos. 420, House No of village Bhangnamari, P.S. Mukalmua, Dist & Sub Division- Nalbari(Assam) of 60 No. Barkhetri L.A.C. but has been wrongly recorded as Jeherun instead of Jehirul Islam and the O.P. has filed an affidavit before Notary Public, Nalbari (Exhibit J ) swearing that his name has been wrongly recorded as Jehrun against Sl. No.420 of voter list of 1997 of 60 No. Barkhetri L.A.C. and sweared that Jeherun and Jeherul Islam is one and the same person. That after careful scrutiny of voter list of 1997 of 60 No. Barkhetri L.A.C. (Exhibit G ) and Affidavit (Exhibit J ) it is found that-

4 4 Jeherun under voter Serial No. 420 and House No is a female by gender whose father s name incidentally is Jalil whereas the O.P. Jeherul Islam is a male by gender which is a great discrepancy. The O.P. has sweared false affidavit before Notary Public Nalbari to cover up the above mentioned discrepancy. Therefore, it is found that the O.P. is trying to project himself as a registered voter of 60 No. Barkhetri L.A.C. of the year 1997 (Exhibit G ) indisguise of Jeherun. Hence voter list of 1997 (Exhibit G ) cannot be admissible as a documentary evidence in support of the claim of the O.P. The O.P. is trying to show Jalil Ali as his projected father but the real name of the father of the O.P. is Abdul Jalil the fact of which is supported by the document like Pan Card (Exhibit M ) Elector Photo Identity Card (Exhibit H ) including reference of SP(B), Kamrup. 11. On scrutiny of certificate issued by Govt. Gaon Burha (Exhibit B ) and photo Identity Card (Exhibit H ) issued by Election Commission of India in favour of the O.P. and voter list of 2016 (Annexure-3) of 57 No. Rangia L.A.C. and Pan Card (Exhibit M ) issued by Income Tax Deptt. Govt. of India in favour of the O.P. and voter list of 2014 (Annexure 6) of 57 No. Rangia L.A.C. it is found that the name of the O.P. is correctly recorded as Jehirul Islam, S/o Abdul Jalil of 57 No Rangia L.A.C. From the above mentioned documents it is clear that the name of his genuine father is Abdul Jalil. But the O.P. has miserably failed to produce any documentary evidence of his genuine father Abdul Jalil of pre period. After careful scrutiny of certified copy of voter list of 1966 (Exhibit C ) of 54 No. Chenga L.A.C. of P.S. Nalbari of Mouza Pachim Barkhetri, Dist. Kamrup, the O.P. is trying to project Tafiz Mistry as his grandfather and certified copy of voter list 1993 of 60 No. Barkhetri L.A.C. of Dist. Nalbari of P.S. Mukalmua (Exhibit E ) where the O.P. is trying to project Jalil Uddin as his projected father which is a great discrepancy since the genuine name of the father of the O.P. is Abdul Jalil. It is worth mentioning that in the both the certified copies of above mentioned voter lists bears name of different P.S. different L.A.C. two different district although the O.P. is trying to show his father and grandfather which is a serious discrepancy. 12. The O.P. has produced the certified copy of voter list of 1997 of 60 No. Barkehtri L.A.C. (Exhibit G ) wherein it is found that the name of one Jalil Ali, S/o Tafiz appeared under voter Serial No.418, House No.1588 but his document is also of no use to support the claim of the O.P. since all other document like Pan Card, Elector Photo Identity Card including the reference by Superintendent of Police (B) has mentioned the name of the father of the O.P. as

5 5 Abdul Jalil. Thus the above mentioned document (Exhibit G ) cannot be admissible as documentary evidence in support of the claim of the O.P. due to discrepancy as to the name of the father of the OP. The OP has produced the original copy of Elector Photo Identity Card (Exhibit H ) issued by Election Commission of India in favour of the O.P. which mentions that the address of the O.P. is vill- Dimu, P.S.- Rangia, Dist- Kamrup (Assam), Sex- Male and a voter of 57 No. Rangia L.A.C. and his father name in recorded as Abdul Jalil. The O.P. has produced photocopy of voter list of 2016 (Annexure-3) of 57 Rangia L.A.C. wherein the name of the O.P. appeared under voter Serial No. 681 as son of Abdul Jalil. The O.P. has produced the original copy of Pan Card (Exhibit M ) issued by the Income Tax Department Govt. of India in favour of the O.P. which mentions that the name of the father of the O.P. is Abdul Jalil and date of birth of the O.P. is The O.P. has produced the copy of voter list of 2014 of 57 No. Rangia L.A.C. wherein the name of the O.P. appeared under voter Serial No. 705 as son of Abdul Jalil. Discussion As discussed in above paras and meticulous analysis and perusal of the evidences adduced before this Tribunal it is found that the evidences adduced by the O.P. in support in his case is not trustworthy to prove that he is not a Foreigner. As per Exhibit B, (the certificate of Gaon Burha) of village- Naburka Satra, Dist- Kamrup, Exhibit M (the Pan Card), Exhibit- F (school certificate of Peradhara H.S. School), Exhibit- H (Elector Photo Identity Card), Annexure 6 (voter list of 2014), Annexure-3 (photocopy of voter list of 2016) all the above mentioned documents show the actual and real name of the father of the O.P. is Abdul Jalil but not Jalil Ali or Jaliluddin and the name of the O.P. is Jehirul Islam not Jeherun. From the analysis of the above documents it is found that the Jalil Ali and Jaliluddin is his projected father and consequently Tafiz Mistry is his projected Grand Father. It is to be mentioned here that although the O.P. tried to show him as Jeherun through certified copy of 1997 of voter list of 60 No. Barkhetri L.A.C. but on careful analysis of abovementioned documents it is found that Jererun is a female voter whereas Jehirul Islam (the O.P.) is a male voter which is a great and serious discrepancy for which the certified copy of voter list of 1997 (Exhibit G ) is not admissible as a documentary evidence in support of the claim of the O.P. Opinion 13.In view of the discussion above, I am of the opinion that the father of the O.P. namely, Abdul Jalil is not an Indian Citizen and consequently the O.P. namely Jehirul Islam S/o Abdul Jalil, vill-

6 6 No.2 Dimu P.S.- Rangia, Dist- Kamrup (Assam) has also entered into India without authority subsequent to and hence Jehirul Islam (the O.P.) is termed to be a foreigner of post stream. 10. Though the aforesaid finding recorded by the Tribunal is a finding of fact based on appreciation of evidence, to satisfy ourselves about the correctness of the same, we have looked into the case record. 11. In his written statement, petitioner stated that he is a permanent resident of village Bhangnamari under Mukalmua Police Station in the district of Nalbari but is presently residing at village No.2 Dimu under Rangia Police Station in the district of Kamrup. He claimed to be a citizen of India by birth. Name of his father was Jalil Abdul Jalil and that of his grandfather Tafiz Mistry. Grandfather was a voter of Father s name appeared in the voters list of 1997 together with the petitioner; however, petitioner s name was wrongly shown as Jeherun. Thereafter, their names appeared in the voters list of Petitioner also placed reliance on the Elector Photo Identity Card issued by the Election Commission of India and also on the PAN Card issued by the Income Tax Department. He stated that he had studied up to Class IX in Peradhara Higher Secondary School in the district of Nalbari. 12. In a proceeding before the Foreigners Tribunal, written statement is the basic statement of defence of a proceedee. When citizenship of a proceedee is questioned, that too by the State, it becomes the bounden duty of the proceedee to disclose all material facts for proving his citizenship which is specially within his/her knowledge at the first instance itself i.e., in the written statement. This is the requirement of Section 106 of the Evidence Act read with Section 9 of the Foreigner Act, 1946 which has been explained by the Supreme Court in Sarbananda Sonowal vs. Union of India, (2005) 5 SCC 665. Failure to disclose such material facts at the first instance i.e., in the written statement may result in drawing adverse inference against the proceedee. 13. In the instant case though the petitioner said that he was a citizen of India by birth, his date of birth or even the year of birth was not mentioned, not to speak of place of birth. Though he disclosed his age as 33 years in the verification signed on , he did not disclose the particulars of his mother, brothers

7 7 and sisters. Case projected by the petitioner in the written statement was that he was the son of Jalil Abdul Jalil who in turn was the son of Tafiz Mistry and Tafiz Mistry s name appeared in the voters list of Names of both father and son (petitioner) appeared for the first time in the voters list of 1997, though in the said voters list petitioner was wrongly shown as Jeherun, daughter of Jalil. Petitioner tried to explain that Jeherul and Jeherun is one and the same person. He also stated that he studied till Class IX. 14. As noticed above, petitioner did not disclose the materials facts in the written statement. That apart, whatever information he had disclosed appeared to be contradictory raising serious doubt about the version projected by the petitioner. Tafiz Mistry, grandfather, was a voter of Chenga Constituency whereas both the father and the son were voters of Barkhetri Constituency, two different constituencies which remained unexplained. While petitioner stated that he was born at village Bhangnamari under Mukalmua Police Station and presently residing at Village No.2 Dimu under Rangia Police Station, what necessitated change of residence was not explained. Again, he stated that he had studied upto Class IX in the Peradhara Higher Secondary School at Larkuchi which is a different place altogether. That apart, in the 1997 voters list the name that appears is Jeherun and no Jeherul, shown as a woman voter related to one Jalil. From the verification if we accept the age of the petitioner as 33 years as on February, 2016 this would mean that petitioner was born sometime in the year The present age of franchise is 18 years. If the petitioner was born in the year 1983 he would have become eligible to cast his vote only in the year But petitioner has placed reliance on a voters list of 1997 when he was hardly 14 years of age, where also name is Jeherun which he now claims was mistakenly entered instead of Jeherul. Therefore, it is quite clear that entry of the petitioner in the voters list 1997 was not legally permissible. Therefore, the 1997 document could not have been relied upon and was rightly rejected by the Tribunal. 15. Reverting back to the documents exhibited by the petitioner, except Exbt. C, the other documents are not of much consequence inasmuch as these documents are of recent origin and in any case are post If petitioner i.e., Jeherul Islam is the son of Abdul Jalil, there is no admissible evidence to establish presence of Abdul Jalil or linkage of Abdul Jalil to any Indian citizen to a

8 8 period prior to which is the cut off date for identification of foreigners as per Section 6A of the Citizenship Act,1955, as amended. 16. As noticed above, there is no document on record to establish linkage of the petitioner to Tafiz Mistry. Even the school document, Exbt.F, clearly shows that date of birth of the petitioner is which demolishes petitioners own argument of being a voter in the year 1997 as alluded to above. Exbt. G, on the other hand, is an extract of voters list of 1997 which discloses 2 names, Jalil Ali related to Tafiz Mistry and Jeherun related to Jalil. Here Jeherun is shown as a woman and she is related to Jalil Ali who in turn is related to Tafiz. Therefore, it is quite evident that attempt of the petitioner to project himself as the son of Jalil Ali who was the son of Tafiz Mistry miserably failed. Similar is the position in respect of Exbt. L. In such circumstances, we are of the view that the finding recorded by the Tribunal does not suffer from any error or infirmity; no case for interference is made out. There is no merit in the writ petition which is accordingly dismissed. Interim order passed earlier stands vacated. 17. Registry to send down the LCR forthwith and inform the concerned Foreigners Tribunal, Superintendent of Police (B) and Deputy Commissioner for doing the needful. JUDGE JUDGE Rupam