(CAV), J.
1. The petitioner, who has been declared to be a foreigner (illegal Bangladeshi migrant) by the Foreigners Tribunal âIII, Barpeta, Assam, vide order dated 22/01/2013 in FT Case No. 69 (III)/2012 (Ref. IMDT Case No. 724(A)/98 (State of Assam Vs. Rahim Ali), has filed the instant writ petition challenging the said order.
2. As has been claimed in the writ petition, the petitioner, son of Husen Ali @ Husen Nessa @ Husen @ Hussain Ali, is a citizen of India, by birth. Referring to the voter list of 1965, 1970, 1985 and 1997, it is the case of the petitioner that his fathers name along with his mother appeared in the voter lists of 1965, 1970, 1985 and 1997. The petitioner has also referred to the Special Family Identify Card stated to be in the name of his father. He has also referred to the copy of the Jamabandi in respect of the particular land purportedly recording the name of his father vide order dated 22/01/1991.
3. According to the petitioner, he is the grandson of Tamuj Ali @ Tamuj Uddin @ Tamuj and Rangbahar Nessa, whose name appeared in the voter list of 1965 and 1970. He has also referred to the Kutcha Patta dated 22/03/1952 and 12/11/1954 purportedly recording the name of his father as Tamej Uddin.
4. As regards the inclusion of name of the petitioner in the voter lists, he has stated that his name was included in 1985 and 1997 voter list along with his wife Jamiran Nessa. He has also referred to the voter list of 1985, 1997 and 2005 to show inclusion of their names therein. The petitioner has also referred to his bank account and the certificate dated 18/06/2012 purportedly issued by the Gaonbura certifying him to be a resident of the particular locality and inclusion of his name in the voter list of 2010.
5. I have heard Mr. M.U. Mahmud, learned counsel for the petitioner. I have also heard Mr. M. Bhagabati, learned CGC and Mr. N. Upadhyay, learned State Counsel appearing for the respondents. I have also perused the entire materials on record. My findings and conclusions are as follows.
6. As has been held by the Apex Court in Sarbananda Sonowal Vs. Union of India reported in AIR 2005 SC 2920, 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 ones 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 grand parents 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 authority of the State. As per the provisions of Section 9 of the Foreigners act, 1946, the burden of proof that he is an Indian citizen is on the proceedee. In the aforesaid case, dealing with the âBurden of Proofâ, the apex Court in the aforesaid case of Sarbananda Sonowal, has made the following observation.
â18. Though in a criminal case the general rule is that the burden of proof is on the prosecution but if any fact is especially within the knowledge of the accused, he has to lead evidence to prove the said fact. In Shambhu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404 it was held as follows:
"Section 106 is an exception to S. 101. The latter with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and S. 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge."
In Collector of Customs, Madras v. D. Bhoormull, AIR 1974 SC 859, proceedings were initiated under Section 167(8)(c) of the Customs Act for confiscation of contraband or smuggled goods and it was observed:
"..............Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the accused, it is not obliged to prove them as part of its primary burden."
"...............On the principle underlying S. 106 Evidence Act, the burden to establish those facts is cast on the person concerned; and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty.
In state of Welt Bengal v. Meer Mohd. Umar, 2000(8) SCC 382, it was held that the legislature engrafted special rule in Section 106 of the Evidence Act to meet certain exceptional cases in which not only it would be impossible but disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience. This principle was reiterated in Sanjai @ Kaka v. State (NCT of Delhi), (2001) 3 SCC 190 and Ezhil v. State of Tamil Nadu, AIR 2002 SC 2017.
In R. v. Oliver, 1943 All ER 800, the accused was charged with having sold sugar as a whole-sale seller without the necessary licence. It was held that whether the accused had a licence was a fact peculiarly within his own knowledge and proof of the fact that he had a licence lay upon him. It was further held that in the circumstances of the case the prosecution was under no necessity to give prima facie evidence of non-existence of a licence. In this case reference is made to some earlier decisions and it will be useful to notice the same. In R. v. Turner, (1916) 5 M and S 206: 14 Digest 430, the learned Judge observed as follows:
"I have always understood it to be a general rule, that, if a negative averment be made by one party, which is peculiarly within the knowledge of the other, the party within whose knowledge it lies and who asserts the affirmative, is to prove it, and not he who avers the negative."
In Williams v. Russel, (1993) 149 LT 190, the learned Judge held as under:
"On the principle laid down in R. v. Turner and numerous other cases where it is an offence to do an act without lawful authority, the person who sets up the lawful authority must prove it and the prosecution need not prove the absence of lawful authority. I think the onus of the negative averment in this case was on the accused to prove the possession of the policy required by the statute."
19. Section 9 of the Foreigners Act regarding burden of proof is basically on the same lines as the corresponding provision is in U.K. and some other Western nations and is based upon sound legal principle that the facts which are peculiarly within the knowledge of a person should prove it and not the party who avers the negative.â7. The issue relating to citizenship, particularly in Assam, will have to be considered keeping in mind that there is large scale illegal migration of Bangladeshi nationals to Assam. In this connection, the Apex Court has made the following significant observation in paragraph 38 of Sarbananda Sonowal (Supra).
â38. This being the situation there can be no manner of doubt that the State of Assam is facing "external aggression and internal disturbance" on account of large scale illegal migration of Bangladeshi nationals. It, therefore, becomes the duty of Union of India to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution. Having regard to this constitutional mandate, the question arises whether the Union of India has taken any measures for that purpose.
45. As mentioned earlier, the influx of Bangladeshi nationals who have illegally migrated into Assam pose a threat to the integrity and security of north-eastern region. Their presence has changed the demographic character of that region and the local people of Assam have been reduced to a status of minority in certain districts.............................â
8. In the instant case, the learned Tribunal appreciating the evidence on record has answered the reference in favour of the State and against the petitioner and hence this writ petition.
9. In the written statement filed by the petitioner before the learned Tribunal, it was contended that his fathers name Hussen Ali had appeared in the voter list of 1965 pertaining to Sarukhetri LAC followed by 1997 voter list. It was further stated that the petitioners name appeared in the voter list of 1997 and 2005. He also referred to the Green Card issued to him as a person below poverty line. He also referred to the certificate issued by the Gaonbura.
10. It is on the above basis the petitioner sought to establish his Indian citizenship, that too by birth. Before the Tribunal, he had adduced documentary evidence by producing photocopies of the voter lists of 1966, 1985, 1997 and 2005. He also produced photocopy of the Green Card and the Gaonburas certificate. As recorded in the findings of the Tribunal it was only during the course of hearing beyond the stage of adducing evidence, the petitioner had produced the photocopy of the voter list of 1965. The same was produced on 11/01/2013 during the course of argument. As has been held by the Division Bench of this Court in Moslem Mondal and others Vs. Union of India and others reported in 2010 (2) GLT 1, the writ proceeding is not a substitute for a proceeding before the Tribunal. If certain new materials are brought in the writ proceeding not forming part of the proceeding before the Tribunal, it has been held in the said judgement that the Writ Court cannot examine the said new materials/evidence. It has been held that the Writ Court does not enjoy original jurisdiction to determine the citizenship of a person on the basis of the new materials brought on record in the writ proceeding. It has further been held that the Writ Court can only examine those materials which were placed before the Tribunal.
11. In the voter list of 1985 purportedly containing the name of the petitioner, the age of Rahim Ali (petitioner) was recorded as 28 years. If that be so, he had attained the age of 21 years in 1977-1978 but there is no explanation as to why his name was not recorded in any voter list prior to 1985. The copy of the Green Card on the face of it is not trustworthy as there is apparent subsequent insertion of the name âRahimâ and âHussainâ. There is also no date of issuance of the same. Likewise, the photocopy of the Gaonburas certificate dated 18/06/2012 is also of no help to the case of the petitioner as it only certifies that he was included in 2010 voter list, the cut-off date being 25/03/1971.
12. The learned Tribunal referring to the entire evidence on record and discussing the same has found that Ext.A is a photocopy of the voter list of 1966 purportedly correcting the name of Sussen Nessa as Hussain Ali. No explanation was furnished as to under what circumstances, the name of Sussen Nessa came to be corrected as Hussain Ali in 1966. Significantly, in the corrected voter list there is no indication as to the age of the person, whether male or female etc. While in the voter list of 1965, Susesen Nessa was shown as female aged 25 years, but in the purported corrected voter list of 1966, Hussain Ali is not referred to by any age and sex. His fathers name is also not reflected. The learned Tribunal while appreciating the said fact has rightly held that based on such a document of 1966 without any reference to the 1965 voter list and under what circumstances such correction was made, the story made out by the petitioner was not believable. As noted above, it was only a photocopy of the voter list of 1965 that was produced during the course of argument without formally exhibiting the same and producing the original copy of the same.
13. The learned Tribunal referring to the 1965 photocopy of the voter list, found the following entries :-
| 1 | 2 | 3 | 4 | 5 | 6 |
| 592593 594 595 596 597 598 | 171 | Tamuj AliRangbahar Nessa Sussen Nessa Rahiman Bibi Hakim Ali Rabia Khatun Akmat Ali | KeeftaliTamuzuddin Tamuzuddin Tamujali Tamujali Hakimali Hakimali | MF F F M F M | 5927 25 35 30 24 23 |
15. The aforesaid findings has been recorded by the Tribunal referring to the entire evidence on record. Ext. B (voter list of 1985) and Ext. C (voter list of 1997 relied upon by the petitioner to show that Hussain Ali i.e. the projected father of the petitioner was alive at-least till 1997 but the petitioner filed only a certified copy of the voter list of 1966 which is nothing but an amended voter list published in 1966 showing the name of Sussen Nessa corrected as Hussain Ali, however, without showing the age of Hussain Ali and the name of his father. The petitioner could not produce any voter list for the period from 1966 to 1985 and thereafter from 1985 to 1997 incorporating the name of his father. In this connection, the Tribunal has held thus :-
âIf Hussain Ali, the projected father of the OP was alive at least till 1997, his name should have appeared in any of the voters list published in between 1966 and 1985 and in between 1985 and 1997. But no such voters list is furnished and proved in this case. No any other relevant document showing the name of Ps projected father has also been filed and proved in this case. In the list of 1965, the age of the projected grandfather Tamuz or Tamizuddin is shown as 59 years which shows that he was born in or about 1906. The age of the projected father of the OP, if Ex-A is accepted considering the argument of learned Advocate for the OP, was 25 years in 1965 and a such Hussain Ali, the projected father of the OP should have born in or about 1940. In that case the names of both projected father and grandfather of the OP should have been recorded in the NRC of 1951. No certified copy of the relevant record of entry in the NRC of 1951 showing their names is filed and proved in this case.â
16. Significantly, the petitioner did not make any statement in his Written Statement or evidence in chief about his mother. The age of the petitioner is recorded as 28 years in Ext. B (1985 voter list) to show the names of his projected parents wherein his age is recorded as 28 years and that of his mother as 40 years, meaning thereby that the age difference between the petitioner and his mother is only 12 years, which is highly improbable. That apart, if the petitioners mother was 40 years old in 1985, she was born in the year 1945 and thus was not eligible to be registered as a voter till 1966. This aspect of the matter has been discussed by the Tribunal as follows :-
âFurther, if the OPs mother was 40 years of age in 1985 she should have born in or about 1945. In that case, (till her attaining the age of 21 years from 1945) she was not eligible to be registered as a voter till 1966. On the other hand, if we consider the voters list of 1997 (Ex-C) the age of OPs mother is shown as 55 years and in that case she should have born in or about 1942 and her name should have been recorded in the voters lists published after 1963. But no certified copy of the voters list of 1965, 1966 and 1970 showing her name as a voter either at the village of her parents or at the village of her husband is filed and proved. Again, if as per the argument advanced for the OP is accepted regarding Ex-A to be the amended list of 1965, the age of the projected father of the OP was 25 years in 1965 whereas Ex-B (voters list of 1985) shows that his age is recorded as 55 years in 1985 which as per list of 1965 should have been 45 years and Ex-C (voters list of 1997) shows that his age is found recorded therein as 65 years which should have been, as per list of 1965, as 57 years. Therefore, the documents discussed above, are full of inconsistencies and not fully trustworthy. There is, in fact, no trustworthy document to show that the projected father or grandfather was resident of India prior to 1971 OR that names of Tamuz Ali/Tamizuddin and Sussen Nessa (corrected as Hussain Ali) appearing in the list of 1965 are in fact the grandfather and the father respectively of the OP.â
17. So far as the Green Card is concerned (Ext-E), as noted above, there is no mention of issuance of the same. On perusal of the said Ext-E Green Card, the Tribunal found that 16 Kg of rice was issued on and from 06/06/1995 and there are total 12 entries in it. The last entry being that of 06/04/1996. There is no explanation as to why there was no entry after 1996 and even otherwise also the cut-off date being 25/03/1971, these documents is of ho help to the case of the petitioner. The Gaonburas certificate is also of no help to the case of the petitioner as it only certifies that the petitioner is a resident of the particular place and that his name was included in the voter list of 2010.
18. Above being the position and in absence of any perversity shown to the findings recorded by the learned Tribunal, there is no scope to interfere in that findings and accordingly the writ petition is dismissed.
19. Registry may transmit the case records to the Tribunal.
20. The Superintendent of Police (B), Barpeta and the Deputy Commissioner, Barpeta are directed to take appropriate action in the matter towards deportation of the petitioner from India and deletion of his name from the voter list, if found to have entered.
21. Let copies of this judgment and order be furnished to the Superintendent of Police (B), Barpeta and the Deputy Commissioner, Barpeta. Another copy be sent to the Union of India in the Ministry of Home. An extra copy of this judgment and order may also be furnished to Mr. N. Upadhyay, learned State Counsel for his necessary follow up action.
22. List after one month for furnishing reports by the Superintendent of Police (B), Barpeta and the Deputy Commissioner, Barpeta.