Decided on April 03,2018

Jainal Uddin Appellant
UNION OF INDIA Respondents


UJJAL BHUYAN - (1.) Heard Mr. HRA Choudhury, learned Senior Counsel assisted by Mr. FU Borbhuiya, learned counsel for the petitioner and Mr. J Payeng, learned Standing Counsel, Foreigners Tribunal. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 26.04.2016, passed by the Foreigners Tribunal, Nagaon Court No.7th at Lanka in FT/L/Case No.25/2015 (State Vs. Jainaluddin), declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.03.1971. This Court by order dated 31.05.2016 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should be allowed to remain on bail subject to his appearance before the Superintendent of Police (Border), Hojai and furnishing of adequate surety.
(2.) Learned counsel for the petitioner submits that petitioner is the son of Lt. Moin Uddin, who was a citizen of India and, therefore, he is a citizen of India. The fact that petitioner is the son of Moin Uddin was acknowledged by the Tribunal itself when it had issued notice to the petitioner describing him as son of Moin Uddin. Relationship of the petitioner with Moin Uddin was proved by Ext-3 voters list of 1997 where the petitioner appeared as a voter and shown as son of Moin Uddin by Ext-6 certificate of the Government Gaonburah and Ext-A i.e., school certificate. Therefore, Tribunal made a manifest error in answering the reference in favour of the State by declaring the petitioner to be a foreigner from the specified territory of post 25.03.1971 stream. On the other hand, learned Special Counsel supports the order passed by the Tribunal and submits that petitioner had failed to establish his linkage with Moin Uddin and, as such, there was no admissible evidence on record to show that he was a citizen of India. He, therefore, prays for dismissal of the writ petition. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record, including the record requisitioned from the Tribunal. We will come to the contentions advanced by learned counsel for the petitioner later. For the moment, we may advert to the written statement and evidence-in-chief of the petitioner. In the written statement filed by the petitioner on 05.10.2015, he mentioned that his father was a voter of Hojai Constituency in the year 1966 and 1970. His name was enlisted as voter of Jamunamukh Constituency in 1997. He continued to be a voter in 2015, 2010 and 2015. In this connection, he referred to a certificate issued by the Government Gaonburah and Special Family Identity Card. Statements made in the written statement were not verified by the petitioner either by verification or by way of affidavit.
(3.) Be that as it may, on going through this written statement, we find that petitioner did not even mention the name of his father, though he claimed that he was a voter in 1966 and 1970. From the written statement, we do not know who is the father of the petitioner. We also do not know who is the mother of the petitioner, not to speak of paternal grand-parents or brothers and sisters of the petitioner, if any. Petitioner did not even mention the date or year of his birth and, consequently, his age on the date of filing the written statement was not disclosed. Such a written statement is wholly inadequate to establish the identity of the proceedee as a citizen of India having regard to the mandate of Section 9 of the Foreigners Act, 1946, as explained by the Supreme Court in paragraph 26 of Sarbananda Sonowal Vs. Union of India, reported in (2005) 5 SCC 665. Paragraph 26 of Sarbananda Sonowal (supra) is extracted hereunder: - " 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." This Court has held in several decisions that when the citizenship status of a proceedee is questioned, that too by the State, it is the bounden duty of the proceedee to disclose all material facts in his possession at the first instance itself; in this case, in the written statement. Failure to disclose material facts in the written statement by itself may lead to drawal of adverse presumption against the proceedee. However, mere pleading of material facts in the written statement is not enough. If material facts are disclosed, those would then have to be proved by adducing cogent, reliable and admissible evidence. ;

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