1. Heard Mr. M.R. Khandakar, learned counsel for the petitioner. Also heard Mr. G. Sarma, learned Standing Counsel for the FT matters and NRC; Mr. M. Islam, learned counsel appears on behalf of Mr. A.I. Ali, learned Standing Counsel for the ECI; Mr. K. Gogoi, learned Standing Counsel for the CGC; and Mr. P. Sarma, learned Additional Senior Government Advocate, Assam.
2. Though the case is fixed for admission, however, with the consent of both sides, the matter is taken for final disposal.
3. Vide this application under Article 226/227 of the Constitution of India, the petitioner has challenged the impugned order/opinion dated 06.03.2025, passed in F.T. Case No.700/2015 by the learned Foreigners Tribunal No.2, Kamrup(M), Guwahati.
4. The case of the petitioner as projected before the Tribunal is that he is the son of Md. Macher Ali @ Mechar Ali and Fuljan Bibi @ Fuljan Necha. His grandparents were Sonaullah Seikh @ Sonaulla and Moussamat Nessa. The petitioner was born on 01.01.1988 at village – Katdanga under South Salmara Police Station in the district of Dhubri, Assam.
5. A reference has been made by the Deputy Commissioner of Police (B), City, Guwahati against the petitioner suspecting him to be a foreigner from Bangladesh who had entered into Assam/India illegally after 25.03.1971. Accordingly, a case has been registered vide F.T. Case No.700/15. On receipt of the notice from the Tribunal, the petitioner has appeared and contested the case by filing written statement wherein he stated that the name of his grandparents appeared in voter list of 1966. Similarly, in the NRC enquiry data for the year 1951, the name of the grandfather and grandmother of the petitioner are also reflected against village – Mohurichar, P.S – South Salmara, district of Dhubri. The said NRC entry for the year 1951 was issued by the Deputy Superintendent of Police (B) on 17.08.1987.
6. It is also stated in the written statement that the grandparents of the petitioner casted their vote in the year 1970/1971. The father of the petitioner was born on 01.10.1961 at village – Katdanga. In the similar way, the names of the parents of the petitioner were recorded in the voter lists of 1997 and 2005. After being eligible for casting vote, the name of the petitioner was inserted in the voter lists for the first time in the year 2015 and 2023 along with his parents Mechar Ali and Fuljan Necha from Jaleswar Legislative Assembly of village – Kholisavita Hindupara in Golapara district.
7. In the course of trial, the petitioner examined himself as DW-1 and one Mechar Ali as DW-2. The petitioner has also exhibited the following documents before the Tribunal vide Ext.1 – NRC document, Ext.2 - voter list of 1966, Ext.3 - voter list of 1970/1971, Ext.4 - voter list of 1997, Ext.5 -voter list of 2005, Ext.6 - voter list of 2015, Ext.7 - voter list of 2023, Ext.8 - Final result of NRC of the applicants. In his evidence-in-affidavit, the petitioner has reiterated the same thing whatever stated in his written statement.
8. Learned counsel for the petitioner has submitted that the Enquiry Officer had never visited the residence and village of the petitioner and never asked the petitioner to produce any document to prove his Indian citizenship at any point of time before making the reference/forwarding the case to the learned Tribunal. The Enquiry Officer in form no.1 dated 04.08.2015 opined that the petitioner was not available in the address given before the Enquiry Officer but it is nowhere mentioned that the petitioner had illegally entered into Assam/India on or after 25.03.1971. As such, there was no fair enquiry and reference against the petitioner in the instant case. It is further stated that the reference dated 31.08.2015 made by the Deputy Commissioner of Police, Guwahati is a faulty one and the same cannot be allowed under the law.
9. Further submission of learned counsel for the petitioner is that the Tribunal issued notice to the petitioner in connection with F.T Case No.700/15 stating that the petitioner had illegally entered into Assam/India on or after 25.03.1971 without any valid document as such no reference was made to the learned Tribunal stating that the petitioner had illegally entered into Assam. It is also stated that though notice was issued to the petitioner but without furnishing the copy of enquiry report/reference and the main grounds for suspecting the petitioner to be a foreigner in violation of the provisions of law.
10. The learned counsel for the petitioner further contended that the name of the petitioner appeared in the voter lists of 2010, 2015, 2019, 2021 and 2023 along with his parents namely Mechar Ali and Fuljan Necha and his wife Rohima Bibi and his younger brother Abul Hosen from village – Kholisavita, Hindupara under 39 Jaleswar LAC. The competent authority has also issued passport dated 09.10.2023 in the name of the father of the petitioner. The Electoral Registration Officer has issued Electors Photo Identity Card (EPIC) to the petitioner on 01.10.2013. The petitioner has also obtained Aadhar Card and PAN Card issued by the competent authority. Accordingly, the learned counsel for the petitioner has prayed for setting aside the opinion/order rendered by the Tribunal.
11. According to the learned counsel for the petitioner, in spite of submission of sufficient documents to prove the citizenship of the petitioner, the learned Tribunal has not assigned any reason for not considering the evidences and the documents exhibited by the petitioner. Accordingly, it has been submitted that impugned opinion suffers from the vice of non-application of mind and as such, the opinion of the Tribunal requires modification by this Court.
In support of his submission, learned counsel for the petitioner has relied on the following case laws –
a) (2024) O Supreme SC 575 [ Rahim Ali @ Abdur Rahim Vs. State of Assam ]
b) (2001) 3 GLT 12 [ Sona Kha @ Sona Khan Vs. Union of India and Ors.]
c) (2017) 2 GLT 1065 [ Santosh Das Vs. Union of India and Ors.]
12. In response, learned counsel for the respondents support the order of the Tribunal and contended that being a finding of fact based on appreciation of evidence, the writ court may not interfere with such finding of fact which is otherwise also fully justified in the facts and circumstances of the case.
13. Having heard the learned counsel for the parties, the question to be decided whether the opinion rendered by the Tribunal is perverse and liable to be set aside by exercising the jurisdiction under Article 226 of the Constitution of India.
14. Coming to question of reference issued to the petitioner vide form-1 notice dated 22.05.2015 by the Enquiry Officer, showing the name of the petitioner - Md. Abu Bakkar Sidique, 25 years, S/o Md. Maser Ali. Address in the Country of origin - not known. Name of the spouse - Nurjahan Nessa. Address in India, Village - Kholisavita, P.S - Lakhipur, District - Goalpara.
15. As per form-1 notice, fingerprints and photograph of the petitioner were taken. The Enquiry Officer opined that during enquiry, the suspected person Md. Abu Bakkar Sidique could not produce any valid documents in support of his Indian citizenship. Hence, prayer for registration of FT Case.
16. Subsequently, during final enquiry, it was reported by the Enquiry Officer that the petitioner was not available in the address and accordingly, the case was forwarded to the learned Tribunal for opinion. The petitioner has challenged the notice issued by the Tribunal vide Annexure-3 in Police Case No.275/2015 which is reproduced as follows –
“Whereas, by the above reference, the competent authority has brought an allegation against you that you have entered into Assam after 25 th March, 1971 without any valid documents and Whereas, the reference reveals that you could not produce any valid document during the period of enquiry/verification regarding your Indian citizenship within the stipulated period of time, and
Whereas, on the grounds made on the reference, you are suspected to be an illegal migrant.
Therefore, you are asked to appear in person or by a concerned lawyer engaged by you before this Foreigner’s Tribunal on 28.11.2024 to file written statement ……”
17. From Annexure-3 notice, it is crystal clear that why the notice was issued to the petitioner, as the petitioner has failed to produce any valid document during the period of enquiry regarding his Indian citizenship. It also appears from form-1 notice that he was interrogated by the Enquiry Officer and he was asked to produce relevant documents to prove his Indian citizenship but he failed to do so. Accordingly, a reference was made. Under such backdrop, we do not find an illegality in issuing notice to the petitioner.
18. In this case, the petitioner has exhibited the aforesaid documents to prove his link with his parents and grandparents. According to the petitioner, the name of his grandfather was Sonaullah Seikh and Grandmother was Moussamat Nessa but he could not recall when they died. When the petitioner was crossexamined, the petitioner disclosed that the name of his parental grandmother is late Suratan Nessa. DW-1 also replied in his cross-examination that he got married to one Rahima Bibi and he has two sons and one daughter. They are Ibrahim and Soriful. But he could not recollect the name of his daughter which is in fact unusual.
19. Similarly, DW-2 also claimed that the petitioner is his son and his wife is Rahima Begum. Two sons of the petitioner are Ibrahim and Soriful but he has also failed to recollect the name of his granddaughter.
20. It is pertinent to say here that though the petitioner and his projected father DW-2 stated that the petitioner got married to one Rahima Bibi @ Begum but as per enquiry report, the name of the spouse of the petitioner is shown as Nurjahan Nessa, aged about 19 years. There is no whisper either in the written statement or in the evidence of the petitioner whether Rahima Bibi @ Begum is the second wife of the petitioner.
21. Proceeding to the voter lists of 1966 and 1970 vide Ext.2 and Ext.3, which reveal the names of one Sonaullah Seikh, S/o Tarifullah and Moussamat Nessa, W/o Sonaullah. Thereafter, the petitioner relied on the voter list of 1997 i.e. after 27 years. It is not reflected in the written statement as well as in the evidence of the witnesses why the petitioner has failed to produce any such document in between 1970 to 1997 to show the fact that they were continuously residing in the village – Katdanga or Kholisavita during such period. As per 1997 voter list, the name of Mocher Ali, S/o Sonaullah, aged about 41 years and Fuljan Bibi, W/o Mocher Ali, aged about 35 years have appeared.
22. According to DW-1 and DW-2, Mocher Ali was born on 01.10.1961, if that is so, he should be 36 years in the year 1997. It is also not clarified that though DW-2 has attained the age of majority in the year 1979, but he casted his vote for the first time in the year 1997.
23. The 2005 voter list vide Ext.5 shows the name of one Mecher Ali, S/o Sonaullah Munshi, aged about 44 years and Fuljan Nessa, W/o Mecher Ali, aged about 31 years. In 1997 voter list as we have already stated, the age of Mocher Ali has been reflected as 41 years. After 8 years, the age of Mecher Ali was shown as 44 years. Similarly, in 1997 voter list, the age of Fuljan Bibi has been shown as 35 years. However, in 2005 voter list, the age of Fuljan Nessa has been shown as 31 years. Under such backdrop, it cannot be said that Mocher Ali and Mecher Ali and Fuljan Bibi and Fuljan Nessa are one and the same person.
24. According to the petitioner, he was born on 01.10.1988 and accordingly, he was eligible for casting vote in the year 2006. But the petitioner has casted vote for the first time in the year 2015. There is also no clarification from the side of the petitioner that why he has failed to produce any such document prior to 2015.
25. Situated thus, it can be said that the petitioner has failed to discharge his burden that he was continuously present in the State of Assam since his birth with his projected parents.
26. In the case of Sarbananda Sonowal Vs. Union of India, reported in (2007) 1 SCC 174, it was held as follows –
“39. Status of a person, however, is determined according to statute. The Evidence Act of our country has made provisions as regards 'burden of proof'. Different statutes also lay down as to how and in what manner burden is to be discharged. Even some penal statutes contain provisions that burden of proof shall be on the accused. Only because burden of proof under certain situations is placed on the accused, the same would not mean that he is deprived of the procedural safeguard.”
27. In Hiten Pal Dalal Vs. Bratindranath Banerjee [(2001) 6 SCC 16], the Hon’ble Supreme Court has categorically opined that -
"Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the 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."
Moreover, there exists a difference between a burden of proof and onus of proof.
28. In Anil Rishi vs. Gurbaksh Singh [2006 (5) SCALE 153], the Hon’ble Supreme Court has held that -
"There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule in Section 101 is inflexible. In terms of Section 102, the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same."
29. Having regard to the fact that the Tribunal in the notice to be sent to the proceedee is required to set out the main grounds; evidently the primary onus in relation thereto would be on the State. However, once the Tribunal satisfied itself about the existence of grounds, the burden of proof would be upon the proceedee.
30. In Sarbananda Sonowal vs. Union of India, reported in (2005) 5 SCC 665, the Hon’ble Supreme Court has held that the burden of proof would be upon the proceedee as he would be possessing the necessary documents to show that he is a citizen not only within the meaning of the provisions of the Constitution of India but also within the provisions of the Citizenship Act.
It was stated -
"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. 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."
31. Coming to the question of NRC document, according to the petitioner vide Ext.1, the names of the petitioner’s grandfather and grandmother are reflected along with other family members against village – Mohurichar, P.S – South Salmara, Mouza/Circle- Dhubri. The said NRC entry for the year 1951 was issued by the Superintendent of Police (B), Dhubri on 17.08.1987.
32. However, Mr. Sarma, learned counsel for FT matters has objected to the fact by stating that NRC documents is not admissible in law by referring the judgment of Abdul Mozid @ Mozid Ali Vs Union of India and Ors in WP(C) 6090/2016.
33. In the case of Abdul Mozid (supra), it was held as follows –
“11. Ext.1 is stated to be a true copy of national register of citizens (NRC), 1951 issued by the Deputy Superintendent of Police (B), Dhubri on 17.10.1985 containing the names of Haru Dewani, Belaton Nessa, Madan Sheikh( Matin) and Hanif Sheikh.NRC, 1951 was prepared on the basis of the Census Act,1948. As per Section 15 of the Census Act, 1948, records of census are not open to inspection and thus not admissible in evidence. Therefore, in Bhanbhasa Sheikh Vs. Union of India, 1970 Assam LR 206, a single Bench of this Court categorically held that NRC extracts produced to prove domicile in India is not admissible in evidence for any purpose. We are in complete agreement with the views expressed by the learned Single Judge in Bhanbhasa Sheikh (supra). Therefore, Ext.1 is no evidence in the eye of law.”
34. Having regard to the observation as per judgment of Abdul Mozid (supra), it can be said that Ext.1 vide NRC document has no value in the eye of law in considering the citizenship of a person like the present petitioner.
35. In another case vide State of Assam and Another Vs. Ohab Ali [WP(C) 2641/2017], it was held as follows –
“16. On the other hand, from the impugned order, we find that after narrating the case as projected by the respondent, the Tribunal observed that State did not examine any witness and failed to adduce any rebuttal evidence. Therefore, Tribunal answers the reference against the State. We are afraid the approach taken by the Tribunal is contrary to the law laid down by the full Bench of this Court in State of Assam Vs. Moslem Mondal, reported in (2013) 1 GLT 809. Under Section 9 of the Foreigners Act, 1946, burden is on the proceedee to prove that she is not a foreigner, but is citizen of India and this burden never shifts. This burden has to be discharged by the proceedee by adducing evidence which are admissible; which must be proved; and which must have relevance to the facts in issue. By mere filling of documents without examining its admissibility and without the documents being proved or without examining its relevance, it cannot be said that the proceedee has discharged his burden. Question of rebuttal evidence by the State will arise only if the proceedee adduces evidence which are admissible, proved and which have relevance.”
36. In view of the aforesaid discussion and the documents available in the record, it is an admitted fact that apart from the discrepancy in the name, there is discrepancy in the age of the petitioner’s projected grandparents and the parents which would make the claim of the petitioner doubtful, as also observed by the learned Tribunal in its opinion.
37. In this regard, we refer the case of Abul Kuddus Vs. Union of India and Ors. vide WPC No. 1073/2016, which is reproduced as follows –
“20. A contention was raised during the hearing that discrepancies in the name and age in the voter lists should not be given and due weightage as because the entries were made by the Electoral Authorities and not by the proceedee. However, this aspect of the matter was gone into by this Court in the case of Basiron Bibi Vs. Union of India , reported in (208) 1 GLT 372, wherein it was held as under –
“Reliance placed in the case Abdul Matali @ Mataleb (Md.) (Supra) can be of no assistance to the petitioner in as much as, as it has already been clarified by this Court in previous decisions that the said decision did not lay down any law and was a decision confined to the facts and circumstances of the case. Regarding discrepancies in the voters’ lists which the petitioner contended were not her creation being entered into by Officials of Election Commission and therefore, should not be used adversely against the petitioner, such contention is without any substance. The voters’ lists were adduced as evidence by the petitioner herself to prove her case that she was not a foreigner but a citizen of India. Petitioner cannot insist that only that portions of the voters’ lists which are in her favour should be accepted and those portions going against her should be overload. This is not how a document put forward as a piece of evidence should be examined. The document has to be appreciated as a whole.”
38. It is pertinent to mention here that the documents which the petitioner wanted to exhibit subsequently before the Tribunal cannot be taken into consideration by the writ Court as those documents were not exhibited before the Tribunal at the first instance.
39. In view of the above discussion as well as the documents available on the record, the Court does not find any ground to interfere with the opinion rendered by the Tribunal. Hence, the writ petition is dismissed.
40. It is reported that in terms of the order/opinion dated 06.03.2025 in F.T Case No.700/2015, the petitioner was arrested and detained in the Detention Camp at Matia, Goalpara. As the petitioner has failed to discharge his burden to be a citizen of India, he is not entitled for bail.
41. The writ petition is disposed of accordingly.
42. Transmit the case records to the Tribunal.
