B.K. Sharma, J.
1. The petitioner, who has been declared as foreigner by the Foreigners Tribunal has invoked the writ jurisdiction of this Court challenging the order of the Tribunal. This writ proceeding makes shocking revelations as to how a foreign national (Bangladeshi national) taking recourse to falsity, forgery and manipulation has been living in Assam, India for years together. He has not only become a voter, but has also obtained passport at a time when the proceeding before the Tribunal was still pending, because of laxity and indifferent attitude on the part of the authorities. Taking advantage of long delay in disposal of the proceeding before the Tribunal and 'go as you like' kind of approach on the part of the authorities, the brother of the petitioner and his family members numbering 8, who were also involved in the proceeding have already done the act of vanishing way back in 1999.
2. In the writ petition, it is the case of the petitioner that he was born in 1948 in the village called Samarali under police station Murajhar in the district of Nagaon. According to him his father Late Makaram Ali was the permanent resident of the said village. It is his further case that he became a voter in 1970 and his name was included in the voter list of 1970 and all subsequent voter lists published thereafter. Further case of the petitioner is that he entered into the marital tie in the year 1969 with one Mustt. Subura Khatun @ Subu Khatun, daughter of Late Safar Ali of the same village. According to the petitioner, he is holder of ration card bearing Registration No. N(E) 27/1973-74 issued on 10.9.1973. The petitioner has annexed the photocopy of the first and the second page of the purported ration card depicting the name Abdul Hasim and the ration card number is 1234. The petitioner has also annexed the relevant pages of the passport obtained by him on 31.7.2006, which he had applied in the year 2005, when the proceeding before the Tribunal was still pending.
3. In paragraph 6 of the writ petition, the petitioner has stated that when he received notice in connection with F.T. Case No. 6/2006 from the Foreigners Tribunal, Hojai, Sankardev Nagar, he contacted an advocate and handed over all the relevant documents for taking necessary steps in the matter. Written statement was filed on 15.11.2006 and the Advocate concerned assured the petitioner that all necessary steps would be taken and that since the petitioner is a citizen of India, the decision would come in his favour. To his 'utter shock and surprise', the petitioner came to know that the Tribunal had passed exparte judgment on 23.8.2007 declaring him to be a foreigner entering India after 25.3.1971 and illegally staying in India without any valid documents and thus liable to be deported forthwith. Thus, it is the case of the petitioner that he was unaware about the proceeding before the Tribunal after filing written statement and solely relied on the engaged Advocate to whom he had handed over all relevant documents. In paragraph 9 of the writ petition, it has been stated thus:
9. That it appears from the Impugned Judgment and Order dated 23.08.2007 that the said Judgment and Order passed Ex-parte without giving any further opportunity to the petitioner to prove his case. The petitioner submits that he was completely depending on his Counsel but when contacted the counsel informed him that he was not aware of the date of hearing and Judgment.
4. Thus if the aforesaid stand of the petitioner is to be believed, he was solely dependent on the engaged counsel and was not aware of the proceeding before the Tribunal after filing the written statement and due to the laches on the part of the said counsel, the proceeding resulted in exparte hearing and judgment.
5. Mr. A.J. Atia, learned Counsel for the petitioner strenuously argued that the petitioner being a citizen of India by birth, the proceeding initiated against him branding him as a foreigner, was wholly unwarranted. During the course of hearing Mr. Atia, produced copies of certain voter lists projecting the same to have contained the name of the petitioner; the copy of the kobinnama stated to be the document pertaining to his marriage in the year 1969 and the original passport obtained by the petitioner from the Regional Passport Office, Guwahati bearing No. F 8383437 dates of issue and expiry of which is 31.7.2006 and 30.7.2016 respectively.
6. Ms. R. Chakraborty, learned Additional Sr. Govt. Advocate, Assam, defending the order of the Tribunal submitted that the documents produced by the petitioner including the passport are not worthy of any credence and that the case of the petitioner being founded on falsehood at every stage, the writ petition is liable to be dismissed with order for immediate deportation of the petitioner from India.
7. The aforesaid documents were produced by Mr. Atia, learned Counsel for the petitioner during the course of hearing on 7.5.2008 On perusal of the said documents, when it was prima facie found that there are inherent contradictions in the particulars disclosed, more particularly, when it was found that as against the claim of the petitioner that he is an illiterate person and thus cannot write his name or put signature, but the passport bears his signature in English, a direction was issued to be Regional Passport Office, Guwahati to produce the relevant file and the documents on the basis of which the passport was issued. The said office was also directed to indicate as to whether, it is the signature of the petitioner, below the photograph affixed to the passport.
8. In terms of the aforesaid order, Mr. T. Armstrong Changsan, the Regional Passport Officer was present in the Court on 29.5.2008 alongwith the records. Mrs. B. Das, learned CGSC, represented him. The records clearly indicated that in the application form applying for passport, the petitioner was shown to have signed and/or written his name in English; It was also clarified by the Regional Passport Officer that the signature appearing below the photograph affixed to the passport, is supposedly that of the petitioner. It was also clarified that the petitioner never put his thumb impression projecting him to be an illiterate person towards obtaining the passport. It will be pertinent to mention here that both in the proceeding before the Tribunal as well as in this proceeding, the petitioner has put left thumb impression (LTI) in all the documents including the Vakalatnama and the affidavit except the written statement filed in the Tribunal which bears his signature in Assamese and/or Bengali. Thus there is no manner of doubt that the passport was obtained by the petitioner with false representation. In the filled in application form submitted by the petitioner, naturally the fact of pending proceeding before the Tribunal was also not mentioned.
9. When the aforesaid position emerged in this proceeding, Mr. A.K. Phukan, learned Advocate General as well as Mr. K.N. Choudhury, learned Additional Advocate General were requested to assist the Court. It will be pertinent to mention here that even in the proceeding on 29.5.2008, Mr. Atia, learned Counsel for the petitioner submitted that the petitioner is an illiterate person. The matter was further taken up on 11.6.2008 and the petitioner was directed to appear in person on 18.6.2008. He appeared on 18.6.2008. On being asked, he submitted that he is illiterate and never signed any document to obtain the passport from the Regional Passport Office, Guwahati. He also admitted that the signature appearing below the photograph affixed to the passport does not belong to him. According to him, he read only upto Class-I in a school in the district of Karbi Anglong. However, he could not furnish any details.
10. I have considered the matter in its entirety. I have also meticulously gone through the records of the proceeding before the Tribunal. It is a unique case of its kind, in which a foreigner (Bangladeshi national) not only illegally entered into Assam, India but also has been merrily roaming around. If his claim is to be believed, he has also become a voter having his say not only in the making of the Government, but also deciding the destiny of the nation. The shocking revelations, which have come to light in this proceeding, give a dangerous and gloomy picture of Assam and for that matter, India in the matter of unabated infiltration from Bangladesh, seriously telling upon the demographic pattern of the society and the identity of the indigenous people of the State.
11. The proceeding before the Tribunal was initiated on the basis of the reference made under Section 8(1) of the IM(D)T Act by the prescribed authority. The case was registered by order dated 2.7.1988 by the then Illegal Migrants (Determination) Tribunal (IMDT) and the notice was issued to the petitioner to produce evidence in support of his case. It will be pertinent to mention here that in the writ petition, the petitioner has not even obliquely stated about the proceeding before the IMDT, but has only stated about the proceeding before the Foreigners Tribunal after scrapping of the IMDT Act by the Apex Court in Sarbananda Sonowal v. Union of India reported in : AIR2005SC2920 .
12. The police made the reference to the then IM(D)T against the following persons.
(i) Abdul Kashem, son of Late Makram Ali
(ii) Sarjuban Bibi - Wife
(iii) Hasna Banu - Wife
(iv) Faruk Ali - Son
(v) Bilal Ali - Son
(vi) Rahima Khatun - Daughter
(vii) Anowara Khatun - Daughter
(viii) Abdul Hasim-Brother of No. (i) Abdul Kashem, son of Late Makram Ali. (the petitioner)
13. Records of the Tribunal have revealed that the persons at Sl. No. (i) to (vii) abandoned the proceeding after initial appearance and as per the own admission of the petitioner vide his application dated 21.1.1999 (page 68 of case records) the other persons left the place and there whereabouts were not known. Thus the other persons did the act of vanishing, even when the proceeding against them before the Tribunal was pending.
14. As against the claim of the petitioner that he was unaware about the proceeding before the Foreigners Tribunal after filing of his written statement and that he solely relied upon his engaged counsel, the proceeding before the Foreigners Tribunal speaks otherwise. The proceeding before the Foreigners Tribunal started on 28.9.2006 after scrapping of the IMDT Act by the Apex Court. Notice was re-issued to the petitioner by order dated 28.9.2006, on receipt of which the petitioner appeared before the Tribunal alongwith his engaged counsel on 20.10.2006. The matter was fixed for WS on 15.11.2006, on which date also the petitioner was present and filed his written statement. In the writ petition his contention is that after filing the written statement on 15.11.2006, he was not aware of the proceeding and solely relied upon his engaged counsel. As against such a contention, the order sheet reveals that the petitioner was present even on subsequent dates viz. 1.12.2006 and 16.12.2006. He was absent on 20.12.2006, but again appeared on 5.2.2007, 5.4.2007, 23.5.2007 and 27.6.2007. The judgment was delivered on 23.8.2007, which is under challenge in this writ petition.
15. On 23.5.2007, the witnesses were examined. The petitioner also examined himself. He declined to cross-examine the prosecution witness namely Sri Dewan Bikasuddin, who had carried out the enquiry about the citizenship of the petitioner and others. Such enquiry was conducted on the basis of the direction of the Superintendent of Police, Nagaon. In his deposition he stated about his visit to the locality and recording the statements of the persons on 21.3.1988. In the statement made before him, it was stated by Abdul Kashem that his name was not included in the voter list of 1970-71 and that he was born in Bangladesh and came to India about 7/8 years back. As per the statement of this PW, the persons under reference could not produce any document except stating that Abdul Kashem, the brother of the petitioner had purchased some land in the year 1982. This witness also stated about recording the statement of Md. Sahajuddin, Abdul Hoque and Abdul Majid of the locality, as per whose statements also, the persons under reference came to the village about 7/8 years back and that their names were not included in any of the voter lists. This PW proved all the exhibits. The petitioner declined to cross examine him.
16. The petitioner also examined himself claiming to be and Indian by birth. His further statement was that his name was recorded in the voter lists of 1966, 1970, 1977, 1997 and 2005. He also stated that he read upto Class-II in the year 1951 at Samgaon L.P. School in the district of Karbi Anglong. Exhibit A produced by him is the school certificate.
17. Aforesaid revelation from the case record, will clearly go to show that the plea of the petitioner that he was unaware of the proceeding after filing of the written statement on 15.11.2006, is out and out a false statement. The impugned judgment itself bears the testimony of the same. Thus, the petitioner has approached the writ Court with material suppression of fact giving the colour of the proceeding before the Tribunal to be an exparte one, although the same is not. On this score alone the writ petition is liable to be dismissed.
18. Exhibit-1 is the order issued by the Superintendent of Police, Nagaon directing the PW1 to make an enquiry relating to the suspicion that the aforesaid persons were illegal migrants who entered into India on or after 25.3.1971. Ext. 2 is the prescribed form filled in by the enquiry officer upon ascertaining the information relating to the suspected illegal migrants. Ext 2(1) is the signature of the enquiry officer. Upon enquiry it was indicated in the prescribed form that the petitioner was born at village-Manikpur under police station Paharganj in the district of Commillah, Bangladesh. It was also recorded that the petitioner and others entered into India through some unauthorized route by illegal means and their such entry was after 25.3.1971.
19. Ext. 3 is the duly filled in form by the enquiry officer and the same is his report. As per the said report also, the petitioner and others are all illegal migrants. The report depicts that upon verification of electoral roll of 1966, the name of the petitioner could not be found. The petitioner also could not produce any document in support of his claim of Indian citizenship. It was declared that he and his family members were all illegal migrants. Ext 3(1) is the signature of the enquiry officer. It was on the basis of such enquiry report, coupled with the report of the Superintendent of Police, Nagaon [Ext 3 (II)], the reference was made to the Tribunal, which has been answered in the affirmative by the impugned judgment.
20. Now a little discussion regarding the stand of the petitioner in his written statement and the documents produced by him. It will be pertinent to mention here that in the written statement, the petitioner put his signature in Assamese and/or Bengali, but in other documents like the deposition, etc. the petitions made use of LTI.
21. According to the petitioner his father's name is Late Makram Ali. The certified copy of the voter list of 1966 produced before the Tribunal contains the name of Makrab Ali, whose father is also Makrab Ali, age 50. Thus, this voter list is of no help to the case of the petitioner. Moreover, mere reference to a name does not mean that the reference name is the name of the father of the petitioner, unless it is established that the said name in fact is that of his father. In the 1997 voter list (certified copy), there is mention of one "Ali Hasim' son of late Makram Ali, age 50 and one Safura Begum whom the petitioner claims to be his wife. The petitioner also produced certified copies of 1966 and 1970 voter lists containing the name of A. Hasim son of Yakub Ali, age 50 and 54 respectively. However, in the certified copy of 2005 voter list, the name indicated is of Abdul Hasim son of Late Makram Ali, age 58. All the copies are extracts of the voter lists only and were produced to show that the petitioner is not an illegal migrant. The certified copies of 1996, 1997 voter lists were obtained in November, 2002 and those of 1966, 1970, 1997 and 2005 in June, 2007 i.e. after 14 years and 17 years respectively of the proceeding before IM(D)T initiated in 1988.
22. On the face of the aforesaid voter lists (extract only), there is no authenticity of the claim of the petitioner. Sometime the person concerned is described as A. Hasim son of Late Makram Ali, some time as A. Hasim son of Yakub Ali and sometime as Abdul Hasim son of Late Makram Ali. It appears that the petitioner merrily made use of certified copies (extract only) of the voter lists depicting the name indicated therein to be his own name. In the Kobinnama produced before the Tribunal, copy of which has also been produced in this proceeding, the wife of the petitioner is indicated as Sabu Khatun, but in the 1997 voter list, the name of wife of A. Hasim is Safura Begum. In the passport also the petitioner has declared the name of his wife as Safura Begum and that of his father as Late Makaram Ali and not Makram Ali and/or Yakub Ali. Before the Tribunal, the petitioner produced the purported original Kobinnama claiming the same to be of the year 1969. Apart from the fact that the Kobinnama is not in the prescribed form but is on a plain paper and hand written one, the purported seal does not contain any date, although there is prescribed column for date. Apparently, the date 23.9.69 was inserted by hand at the bottom of the document afterwards. Such a document cannot make the petitioner an Indian citizen.
23. In the voter list of 1966, which the petitioner produced before the Tribunal to claim that he is an Indian citizen, apart from the fact that the name of the person is A. Hasim son of Yakub Ali and not Makram Ali, the age of the person is indicated as 50. The petitioner also produced the voter list of 1966 to claim that his father was a voter in 1966. In the said document, as noted above, the person concerned is Makrab Ali and not Makram Ali, whose age was 50 years. Thus, if these two documents are to be believed, leaving aside the glaring discrepancies in the names, the age of the petitioner and that of his father was the same in 1966 i.e. 50 years. These are the documents, which the petitioner produced before the Tribunal to claim Indian citizenship. If the petitioner was 50 years old in 1966, by now his age will be 92 years, which he never claims to be. In the affidavit swom in support of the statements in the writ petition, he has declared his age as 59 years.
24. As noted above, the petitioner has not even obliquely stated about the proceeding before the IMDT, Nagaon, which was initiated as per the reference made by the prescribed authority. On perusal of the records, it appears that a written statement was filed in the IMDT on 3.12.1988 on behalf of all the persons involved. As noted above, the reference was in respect of 8 foreigners including the petitioner. Others involved are the brother of the petitioner, Abdul Kashem, his two wives and their children. All have been named above. In the written statement filed on 3.12.1988 on behalf of all, it was stated that they were all Indian citizens by birth and that their father Makram Ali'sname appeared in 1966 voter list at serial No. 200 of No. 92 Jamunamukh legislative constituency, village-Sutargaon under P.S. Jamunamukh in the district of Nagaon. It was further contended that the name of the petitioner appeared at serial No. 450 in the voter list of 1971 pertaining to No. 93 Hojai legislative constituency, Part-145. However, it was stated that his father-in-laws name was indicated as father's name.
25. During the course of hearing of this proceeding also, Mr. Atia learned Counsel for the petitioner also tried to convince this Court that the name of the petitioner appeared in 1979 voter list, but his father's name was not shown and instead his father-in-laws name was shown. I have consulted the said voter list (photocopy) as produced by the learned Counsel for the petitioner. Serial No. 450 contains the name of A. Hasim, son of Sapar Ali, age 25. The theoryprojected by the petitioner that in place of his father's name, his father-in-laws name was included as that of his father is simply unbelievable and by no stretch of imagination can be accepted. In the aforesaid Kobinnama, father of Musstt. Sabu Khatun is Safar Ali and not Sapar Ali. Whenever, such glaring variations and improbability of inclusion of father-in-laws name instead of father were pointed out to the learned Counsel for the petitioner, same was sought to be brushed aside with the submission that such variations are because of the mistake committed by the authority and liable to be ignored. Such a submission is only to be noted for outright rejection as the same is not based on any logic.
26. During the course of hearing of this proceeding, the learned Counsel for the petitioner also produced the original voter list of 1990 pertaining to a Gaon Panchayat under Hojai Mahkuma Parishad. In the said voter list, name of one Ashim, son of Makram appears at serial No. 413, which the learned Counsel projected as the name of the petitioner, who is Abdul Hasim. Thus, it is a case of making use of any voter list at random so as to point out any name contained therein to be that of the petitioner having similarity and/or semblance of similarity. Moreover, this voter list was not produced before the Tribunal.
27. In the aforesaid written statement filed on 3.12.1988 before the IMDT, it was never contended that the name of the petitioner appeared in the voter list of 1966, but after the scrapping of IMDT Act by the Apex Court and when the proceeding was transferred to Foreigners Tribunal, the petitioner produced the certified copy of 1966 voter list so as to contend that his name was included even in 1966 voter list, unmindful of the fact that he had also produced 1966 voter list so as to contend that his father's name was included in the said list. In the said list it is Makrab Ali and not Makram Ali, whose age was recorded as 50 years. The voter list of 1966, on which the petitioner placed reliance to contend that his name was included therein includes the name of one A. Hasim son of Yakub Ali, aged 50 years. Thus, apart from the glaring variations in father's name, what is most conspicuous is that if the story of the petitioner is to be believed, then both the petitioner and his father were of 50 years age in 1966.
28. One interesting feature of the proceeding before the Tribunal is that the aforesaid documents were never formally proved upon exhibition and the only document exhibited was Ext. A i.e. the school certificate purportedly issued on 18.1.1992 by the Headmaster of Samgaon L.P. School. However, the said documents, although not exhibited have been duly taken note of.
29. Ext. A school certificate makes interesting reading. On a bare perusal of the certificate, there cannot be any manner of doubt that the same is a forged document. According to the certificate, the petitioner was a student of Class-II of the school on 31.12.1950. Regarding his character, there is no remark and the particular column is blank. As per the certificate, his age was 7 years on 31.12.1950, and if that be so, his date of birth is 31.12.1943 and not 1948 as claimed in the writ petition as well as in the application for passport. The certificate further certifies that on 31.12.1951, he was promoted to the aforementioned class i.e. Class-II and at the time of leaving the school he passed the examination conducted for promotion to the next class. If the certificate is to be believed then he left the school on 31.12.1950, while in Class-II, but the later part of the certificate says that on 31.12.1951 he was promoted to Class-II and at the time of leaving the school, he had passed the examination for promotion to next Class. Such a certificate does not carry any meaning.
30. The above school certificate will have to be tested alongwith another school certificate produced by the petitioner before the Regional Passport Office alongwith his application for obtaining the passport. This certificate is purportedly dated 31.12.1961 and purportedly issued by the Headmaster of Pub Samarali L.P. School, Hojai in the district of Nagaon. As per this certificate, his name is Md. Abdul Hasim Ali and he passed the Class-II examination on 31.12.1948 and that as per the school register he was born on 31.12.1948. Thus, if this certificate is to be believed, then the petitioner on the date of his birth got admitted to the school and cleared the Class-II examination on the same day. If he had cleared the Class-II examination in 1948, there was no question of his leaving another school namely Samgaon L.P. School on 31.12.1950 or 31.12.1951 at the age of 7 years while in Class-II or while clearing the examination for Class-III, because by that time he had already cleared the Class-n examination as per the certificate produced before the Passport office. Thus, the petitioner made use of two separate school certificates, one for the Tribunal and another for the Passport Office. While in the former certificate, he is Md. Abdul Hasim, in the later certificate, he is Abdul Hasim Ali.
31. The Passport Officer on being asked to produced the relevant file/documents on the basis of which the passport was issued to the petitioner, the Regional Passport Officer by his letter dated 19.5.2008 addressed to Mrs. B. Das, learned CGSC, interalia, has stated thus:
Having perused the file of the passport No. F8383437, it has been found that Mr. Mahammad Abdul Hasim Ali (to whom this passport was issued) had indeed signed in the column where signature is supposed to be signed, and which is scanned and later printed in the Passport. In addition, he has also signed at the end of the application form, which is a declaration stating allegiance to the sovereignty, unity & integrity of India, etc.
32. The record pertaining to aforesaid passport produced by the Regional Passport office depicts that alongwith the application form dated 11.3.2005, the petitioner also produced copy of the Ration Card bearing No. 5443, copy of one voter list and the aforesaid school certificate. The school certificate has already been discussed above. The copy of the ration card produced before the passport office does not tally with the copy of the ration card annexed to the writ petition. The copy annexed to the writ petition bears the No. 1234 and stated to have been issued on 10.9.1973, whereas the copy produced before the passport office bears No. 5443 issued in favour A. Hasim son of Mubarak Ali and not Makram Ali, Makaram Ali or Yakub Ali.
33. The photocopy of only one page of a voter list produced before the passport office is of 1997 as could be gathered from the foot note, which says that the age of the voters recorded is the tentative age as on 1.1.1997 but at the top of the voter list there is hand written insertion 1966 to mislead the authority to consider the voter list to be one of 1966. In the voter list, name of one Ali Hasim with wife Safura Begum appears.
34. The aforesaid discrepancies are so glaring that it cannot escape the notice of any prudent man, more particularly, the authorities of the Regional Passport office entrusted with the solemn duty of issuing passport to genuine Indian citizens. On being asked, the Regional Passport Officer simply explained that the passport was issued solely on the basis of the police report furnished. Let us now see what was the police report. Before that it would be appropriate to refer to Clause 9(a) of the application form which reads 'please give the date since residing at the abovementioned address'. This column was not filled up and remained blank and yet escaped the notice of the authorities of the passport office, as it escaped their notice that in the Ration Card the father's name indicated is Mubarak Ali and not Makaram Ali as reflected in the application form.
35. In the police report dated 17.7.2005, it was stated that there was no criminal record against the petitioner. It was further stated that during enquiry it was found that his name appeared in the voter list of 1997 at serial No. 385, but the petitioner could not produce the voter list of 1986. The DSP, Nagaon in his report dated 9.8.2005, certified that there was nothing adverse against the petitioner politically and that on enquiry, he was known as Indian citizen by birth. It is on the basis of such report, the petitioner was issued with the passport by the Regional Passport office unmindful of the aforesaid infirmity in the ration card vis-a-vis the application form and that the petitioner could not produce the voter list of 1986. It also escaped notice of the passport authority that the cut off date is 25.3.1971 and anybody entering India on or after that date is not an Indian citizen. Since the petitioner in his application form declared his date of birth as 1948, any prudent man would have doubted as to why the petitioner placed reliance only on the 1997 voter list and not the voter lists of prior to 25.3.1971 and even thereafter upto 1997. The passport authority also did not verify as to whether it is the petitioner who had filled in and/or signed the application form.
36. Due to the aforesaid callous approach on the part of both the police authority as well as the passport authority, the petitioner, a foreigner (Bangladeshi National) could get the Indian passport, which is a solemn document to testify one's Indian citizenship. A Bangladeshi national, who the petitioner is, could get the passport with the self-declaration, which is a solemn declaration for every Indian citizen that he owes allegiance to the sovereignty, unity and integrity of India. This is how, the sovereignty of India is being protected by the authorities.
37. As per Section 9 of the Foreigners Act, 1946 burden of proof as to whether any person is or is not a foreigner or is or is not a foreigner of aparticular class or description, the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 lie upon such person. The Act confers wide ranging powers to deal with all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner for prohibiting, regulating or restricting their or his entry into India or their presence or continued presence including his arrest, detention and confinement. Thus, the most important provision is Section 9. The burden of proving that a person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall lie upon such person. Therefore, where an order made under the Foreigners Act is challenged and a question arises whether the person against whom the order has been made is a foreigner or not, the burden of proving that he is not a foreigner is upon such a person.
38. In Union of India v. Ghaus Mohammed reported in : 1961CriLJ703 , the Constitution Bench while reversing the judgment of the High Court held that onus of showing that the person concerned was not a foreigner was upon him. In that case, the Chief Commissioner of Delhi, served an order on the respondent Ghaus Mohammed to leave India within three days as he was a Pakistani national. The challenge made to the order was earlier upheld by the High Court setting aside the order of expulsion on the ground that there must be prima facie material on the basis of which the authority can proceed to pass order under Section 3(2)(c) of the Foreigners Act, 1946.
39. In the instant case, the Tribunal has held that the petitioner failed to discharge his burden of proof that he is an Indian citizen. The Tribunal in its impugned judgment and order has discussed about the enquiry conducted by the Inquiry Officer and his report etc., which were duly exhibited. The inquiry Officer stood by his report that the petitioner was a foreigner and he proved all the exhibits. The petitioner did not cross examine him. Although, in his deposition, the petitioner claimed that he was an Indian citizen by birth and that his name was included in the voter lists of 1966, 1970, 1977, 1997 and 2005 and that he read upto Class-II in the year 1951 at Samgaon L.P. School in the district of Karbi Anglong, but he could not establish his citizenship from the said documents. As noticed above, he had only exhibited the purported school certificate (Ext. A) discussed above. Although, the copies of the purported voter lists were produced before the Tribunal but the same were not formally proved by exhibiting the originals. However, this aspect of the matter need not detain us as the falsity of the story made out by the petitioner on the basis of the said voter lists stares on the face of it about which discussions have been made above.
40. It is a case of making use of any of the voter lists to the likings of the petitioner so as to contend that the particular entry in the voter list belongs to him. In the written statement filed before the IMDT on 3.12.1988, the petitioner never contended that his name was included in the voter list of 1966, 1970 and 1977. Only contention made was that his father's name was included in the 1966 voter list and that his name was included in the 1971 voter list, but in the column relating to his father, name of his father-in-law was included. In view of the inordinate delay (long 20 years) towards conclusion of the proceeding before the Tribunal, the petitioner kept on developing his case and in the process submitted certified copies (extract only) of the purported voter lists purportedly pertaining to him. As noted above, certified copies of such extract was obtained in 2002 and 2007. Falsity of the case of the petitioner on the basis of such voter lists has been discussed above in detail.
41. The Tribunal rightly did not believe the claim of the petitioner that his name was included in 1966 voter list, which was also not the claim in the written statement filed on 3.12.1988. In the said voter list, the father of the person concerned is Yakub Ali and not Makram Ali. The Tribunal also noticed that in the other voter list of 1966 it is the name of Makrab Ali and not Makram Ali and thus rightly observed that both the lists were produced by the petitioner cunningly, although the same pertained to another person. Since the petitioner failed to discharge his burden of proof that he is an Indian citizen, the Tribunal rightly declared him to be a foreigner.
42. Independent of the finding of the Tribunal, the matter has been gone into in detail in view of production of further documents including the passport by the learned Counsel for the petitioner in this proceeding. It will be pertinent to mention here that although the passport was issued on 31.7.2006, but the same was never produced before the Tribunal till the impugned judgment and order passed on 23.8.2007. For the first time the passport was produced in this proceeding and a copy of the same has been annexed to the writ petition.
43. The petitioner, thanks to the police intelligence, delay in the proceeding before the tribunal (long 20 years), and laxity on the part of the passport officials in such an important task of issuance of passport only to Indian citizens, could obtain the passport by suppressing the proceeding before the Tribunal by submitting filled in application form through others who also signed the same in the relevant columns in the name of the petitioner. Clause 21 of the application form under which the petitioner showed to have signed reads as follows:
21. Self Declaration:
I owe allegiance to the sovereignty, unit & integrity of India and have not voluntarily acquired the citizenship of travel document of any other country. I have not lost, surrendered or been deprived of citizenship of India.
The information given by me in this form and enclosures is true and I am solely responsible for accuracy. I am aware that it is an offence under the Passport Act, 1967 to furnish any false information or to suppress any material information with a view to obtaining passport or any other travel document.
I further declare that I have no other passport/travel document.
44. If the sovereignty, unity and integrity of India are being upheld in the above manner by the authorities entrusted with the task, it is easily conceivable as to what is in store for Assam.
45. It is really unfortunate that the reference, which was made way back in 1988, on the basis of which IMDT case No. 381/1988 was registered, later on re-numbered as IMDT case No. 192/1990 and thereafter FT Case No. 6/2006, took long 20 years to arrive at its finality. On perusal of the case records of the Tribunal, what has revealed is that the Tribunal merrily went on granting adjournment after adjournments. In between, on several occasions, due to non-appearance of the petitioner, orders were passed for ex-parte hearing. However, merely on asking for it, the orders for ex-parte hearing were recalled. On most of the occasions, the petitioner remained absent and whenever he had appeared, prayer was made for adjournment on various grounds including the ground of requirement of time to collect documents and the Tribunal went on granting time. What document the petitioner collected has been noted above. Eventually, after scrapping of the IMDT Act, the Foreigners Tribunal took over the matter and the case was registered as FT Case No. 6/2006. After issuance of notice etc., the reference has been answered in the affirmative by the impugned judgment and order dated 23.8.2007.
46. If the petitioner is an Indian citizen and he was a voter in 1966, he would have produced the copy of the same immediately on initiation on the proceeding against him instead of waiting for long 20 years to produce the certified copy of the voter list of 1966 purportedly containing his name, which needless to say does not belong to him. As noticed above, this voter list contains the name of Ali Hasim son of Yakub Ali age 50 years. The petitioner has produced another certified copy of voter list of 1966 containing the name of Makrab Ali son of Makrab Ali, age 50 years showing the same to be his father. On the other hand, the petitioner claims that name of his father is Makram Ali. Thus, apart from the fact that both the documents do not pertain to the petitioner and his father, in case of acceptance of the said documents as pertaining to the petitioner and his father, then in that case, the petitioner and his father were of the same age in 1966 i.e. 50 years. The petitioner wants this Court to believe such a story.
47. The Apex Court while holding the provisions of the IM(DT) Act, 1983 are ultra virus the Constitution of India and striking down the same in Sarbananda Sonowal' case (supra) exclusively dealt with the report dated 8.11.1998 sent by the then Governor of Assam Lt. General S.K. Sinha (Retd.), former Deputy Chief of Army Staff. For a ready reference, some portion of the report as quoted by the Apex Court are reproduced below:
1. The unabated influx of illegal migrants from Bangladesh into Assam and the consequent perceptible change in the demographic pattern of the State has been a matter of grave concern. It threatens to reduce the Assamese people to a minority in their own State, as happened in Tripura and Sikkim.
2. Illegal migration into Assam was the core issue behind the Assam student movement. It was also the prime contributory factor behind the outbreak of insurgency in the State. Yet we have not made much tangible progress in dealing with this al important issue.
3. There is a tendency to view illegal migration into Assam as a regional matter affecting only the people of Assam. It's more dangerous dimensions of greatly undermining our national security, is ignored. The long cherished design of Greater East Pakistan/Bangladesh, making inroads into strategic land link of Assam with the rest of the country, can lead to severing the entire land mass of the North East, with all its rich resources from the rest of the country. They will have disastrous strategic and economic consequences.
48. Noticing the above report and the fall out of the provisions of the IM(DT) Act, the Act Court observed thus:
37. The very first sentence of the Statement of Objects and Reasons of the IMDT Act says 'the influx of foreigners who illegally migrated into. India across the borders of the sensitive Eastern and North- Eastern regions of the country and remained in the country poses a threat to the integrity and security of the said region.' It further says that 'continuance of these persons in India has given rise to serious problems.' The Preamble of the Act says that 'the continuance of such foreigners in India is detrimental to the interests of the public of India.' The Governor of Assam in bis report dated 8th November, 1998 sent to the President of lndia has clearly Said that unabated influx of illegal migrants of Bangladesh into Assam has led to a perceptible change in the demographic pattern of the State and has reduced the Assamese people to a minority in their own State. It is a contributory factor behind the outbreak of insurgency in the State and illegal migration not only affects the people of Assam but has more dangerous dimensions of greatly undermining our national security. Pakistan's I.S.I, is very active in Bangladesh supporting militants in Assam. Muslim militant organizations have mushroomed in Assam. The report also says that this can lead to the severing of the 'entire landmass of the north-east with all its resources from the rest of the country which will have disastrous strategic and economic consequences. The report is by a person who has held the high and responsible position of Deputy Chief of the Army Staff and is very well equipped to recognize the potential danger or threat to the security of the nation by the unabated influx and continued presence of Bangladeshi nationals in India. Bangladesh is one of the world's most populous countries having very few industries. The economic prospects of the people if that country being extremely grim, they are too keen to cross over the border and occupy the land wherever it is Possible to do so.T4e report of the Governor, the affidavits and other material on record show that millions of Bangladeshi nationals have illegally crossed the international border and have of land like 'Char land' barren or cultivable land, forest area and have taken possession of the same in the State of Assam. Their willingness to work at low wages has deprived Indian citizens and specially people in Assam of employment opportunities. This, as stated in the Governor's report, has led to insurgency in Assam. Insurgency is undoubtedly a serious form of internal disturbance which causes grave threat to the life of people, creates panic situation and also hampers the growth and economic prosperity of the State of Assam though it possesses vast natural resources.
38. 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 tot his 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. In such circumstances, if the Parliament had enacted a legislation exclusive for the State of Assam, which was more stringent than the Foreigners Act, which is applicable to rest of India and also in the State of Assam for identification of such persons who migrated from the territory of present Bangladesh between Is' January, 1966 to 24th March, 1971, such a legislation would have passed the test of Article 14 as the differentia so made would have had rational nexus with the avowed policy and objective the Act. But the mere making of a geographical classification cannot be sustained where the Act instead of achieving the object of the legislation defeats the very purpose for which the legislation has been made. As discussed earlier, the provisions of the Foreigners Act are far more effective in identification and deportation of foreigners who have illegally crossed the international border and have entered India without any authority of law and have no authority to continue to remain in India. For satisfying the test of Article 14, the geographical factor alone in making a classification is not enough but there must be a nexus with the objects sought to be achieved. If geographical consideration becomes the sole criteria completely over looking the other aspect of 'rational nexus with the policy and object of the Act' it would be open to the legislature to apply enactments made by its to any sub-division or district within the State and leaving others at its sweet will. This is not the underlying sport or the legal principle on which Article 14 is founded. Since the classification made whereby IMDT Act is made applicable only to the State of Assam has no rational nexus with the policy and object of the Act, it is clearly violative of Article 14 of the Constitution and is liable to be struck down on this ground also.
49. The Apex Court directed the authorities to constitute sufficient number of Tribunals under Foreigner (Tribunal) Order 1964 to effectively deal with the cases of foreigners, who have illegally come from Bangladesh or are illegally residing in Assam.
50. When the said direction of the Apex Court was sought to be diluted by bringing an amendment to the Foreigner (Tribunals) Order 1964 principally making the same inapplicable to the State of Assam and instead notified the Foreigners (Tribunals for Assam) order 2006, the Apex Court once again intervened to strike down the amendments (see Sarbananda Sonowal (II) v. Union of India reported in : (2007)1SCC174 ) and issued direction to forthwith implement the direction in Sarbananda Sonowal (I) (supra). It was observed that there is a lack of will in the matter of ensuring that illegal migrants are sent out of the country. It was also noticed that in Sarbananda Sonowal (I), the relevant materials were referred to, showing that uncontrolled immigration into the North Eastern States has a threat to the integrity of the nation.
51. In a recent decision, the Apex Court dealing with the case of a foreign national, who was convicted for offence punishable under Section 3 read with Section 14 of the Foreigners Act, 1946, observed that considering the large number of infiltrators come to India without valid document, there is need for imposing stricter sentence. The judgment of the Apex Court is dated 13.6.2008 in Crl. Appeal arising out of SLP (Crl) No. 4136/2008.
52. The instant case is only an example of such large scale infiltration of Bangladeshi nationals to India. The proceeding before the tribunal was initiated in respect of 8 foreign nationals including the petitioner. While the petitioner alone remained in fray, others, after initial response to the proceeding did the act of vanishing as will be evident from the application filed by the petitioner before the tribunal on 21.1.1999. In the application, it was stated that the Opp. Party No. 1 Md. Abdul Kasem, who was elder brother of the petitioner expired long ago and after his expiry, his family, including his 2nd wife and his sons and daughters of Abdul Kasem left the village Samarali of Kapahbari Mouza for an unknown destination and that there whereabouts were not known to the petitioner. Thus, the said persons, although foreigners, are living in India without being detected. As per the own admission of the petitioner in his said application, they did the act of vanishing and their whereabouts are not known. This is how, the hide and seek game is being played by the foreigners in fertile land of Assam and those who are at the helm of affairs are mere silent spectators.
53. The instant case has reminded me of the case of Md. Kamaluddin v. State of Assam reported in 2000 (2) GLT 79, in which Md. Kamaluddin after successfully, but illegally entering into Assam from Pakistan through Bangladesh not only freely roamed around the Indian soil, but also contested the 1996 election from No. 60 Jamunamukh Legislative Assembly Constituency. He was in possession of a passport issued by the Pakistan Government for his travel to Bangladesh. After coming to Bangladesh, he stealthily came to Assam, stayed back and even contested the election. This can happen only in Assam.
54. For all the aforesaid reasons, the impugned judgment dated 23.8.2007 passed in Case No. FT/H/6/2006 by the Foreigners Tribunal, Hojai, Sankardev Nagar is upheld. Consequently, the writ petition is dismissed with the following directions:
(I) The respondent No. 4 i.e. the Superintendent of Police, Nagaon shall ensure immediate custody of the petitioner. He will remain in such custody till deported to Bangladesh. The direction for custody is to ensure that the petitioner also does not do the act of vanishing like that of his other family members.
(II) The respondent No. 4 shall also ensure that all others involved in FT Case No. 6/2006 who are the petitioner's brother and his family members named above and so also in the judgment of the Tribunal, are found out and taken into custody for deportation to Bangladesh.
(III) The respondent No. 4 will also ensure initiation of proceeding in respect of others connected with the petitioner and suspected to be foreigners and shall also ensure that such of the persons suspected to be foreigners do not do the act of vanishing.
(IV) The respondent No. 4 shall furnish report in respect of compliance of direction No. (I), (II) and (IE) above by the next date fixed.
(V) The Director General of Police, Assam shall furnish report as to what action he proposes to take in the matter of furnishing report by the police to the passport office in the matter of issuance of passport.
(VI) The DGP, Assam shall also furnish report as to how the police could certify the petitioner to be an Indian citizen when the proceeding against him was pending before the Tribunal upon a reference made by the police itself.
(VII) The Regional Passport Officer shall furnish report as to how the petitioner could be issued passport with the materials against him so glaring on the face of it and discussed above.
(VIII) The Regional Passport Officer as well as the Ministry of External Affairs, Government of India shall also furnish report as to what measures they propose to take in the matter of issuance of passport, so that there is no repetition of this nature in future.
(IX) The Registry shall keep the passport issued to the petitioner in sealed cover and safe custody till the same is collected by the Regional Passport Office, Guwahati through its responsible officer on furnishing proper identity and due acknowledgement. The Regional Passport Officer shall ensure immediate collection of the passport from the Registrar General of this Court with the assistance of Ms. B. Das, learned CGSC for taking necessary follow up action as per the provisions of the Passport Act, 1967.
55. Let the matter be listed again on 30.9.2008 for furnishing the reports by the authorities in terms of the aforesaid directions.
56. The Registry shall ensure that the copies of this judgment and order are sent to all concerned immediately and also furnished to Ms. B. Das, learned CGSC and Ms. R. Chakraborty, learned Additional Sr. Govt. Advocate during the course of the day for their immediate necessary follow up action.
Bring this judgment and order to the notice of the Deputy Registrar (J).