Gauhati High Court
Haran Ali @ Haran Ali Sheikh vs The Union Of India & 2 Ors on 28 August, 2015
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP (C) No. 3381/2015
Haran Ali @ Haran Ali Sheikh,
S/o. Late Araj Ali @ Harej Ali,
Resident of Village-Geramari, Pt-VI,
PO - South Geramari, P.S. Gauripur,
District- Dhubri, Assam,
PIN - 783331.
...........Petitioner
-Versus-
1. The Union of India, represented by the Secretary
to the Ministry, Govt. of India, Sastri Bhawan,
New Delhi, PIN-110001.
2. The State of Assam, represented by the
Commissioner & Secretary to the Govt. of Assam,
Home Department, Dispur, Guwahati-781006.
3. The Superintendent of Police (B), Dhubri, PO & PS
- Dhubri, Dist.- Dhubri, Assam, PIN-783301.
..........Respondents
WP(C) 3381/15 oral dated 28/08/15 Page 1 of 11
For the petitioners : Mr. M.A. Sheikh. Adv.
For the Respondents : Mr. S.C. Keyal, ASGI,
Mr. B.J. Ghosh, GA.
BEFORE
THE HON'BLE MR. JUSTICE B.K. SHARMA
Date of hearing & Judgement: 28/08/2015
JUDGEMENT AND ORDER (ORAL)
1. Heard Mr. M.A. Sheikh, learned counsel for the petitioner. Also heard Mr. S. C. Keyal, learned ASGI representing the Union of India. I have also heard Mr. B.J. Ghosh, learned State counsel. I have also perused the entire materials on record including the LCR received from the Tribunal.
2. This writ petition is directed against the order dated 24/05/2012 passed by the learned Member, Foreigners Tribunal-1, Dhubri, Assam in FT Case No. 1194/G/09 (Reference Case No. R/IMDT/5106/98) (State of Assam Vs. Md. Haran Ali). By the said judgement and order, the petitioner has been declared to be foreigner of post 25/03/1971.
3. In the Tribunal, opposing the reference, the petitioner in his written statement filed on 16/05/2012, inter alia, contended that he WP(C) 3381/15 oral dated 28/08/15 Page 2 of 11 was a student of 1339 No. Dangirchar LP School up to the year 1985 and as per the Admission Register, his date of birth is 20/03/1974. Supporting the said contention, the petitioner annexed the School Certificate as Annexure-B. The certificate is dated 02/12/1985 with the name of the Head Master as Shri Gauri Sankar Sarkar. As per the said certificate, the petitioner was a student of the School and he completed his studies on 31/12/1985. He appeared in Class-II examination and that his date of birth is 20/03/1974. The letter '7' is by way of insertion over the original letter.
4. Be that as it may, from the records it appears that the Tribunal having doubt on the said school certificate ordered for an enquiry by the Superintendent of Police, Dhubri. The copy of the enquiry report is available in the LCR. As per the said report dated 28/06/2012 of the Superintendent of Police (B), Dhubri, the school certificate is the product of forgery, inasmuch as, Shri Gauri Sankar Sarkar was not the Head Master of the school in whose name the certificate was shown issued in 1985. He had joined the school on 16/11/1999. Along with the said report, another enquiry report of the S.I.(B), Lutfor Rahman was also enclosed. For a ready reference, the report of the Superintendent of Police (B), Dhubri addressed to the learned Member, Foreigners Tribunal-I, Dhubri, vide letter dated 21/01/2012, is reproduced below :- WP(C) 3381/15 oral dated 28/08/15 Page 3 of 11
"OFFICE OF THE SUPERINTENDENT OF POLICE(BORDER) DHUBRI No. BO-III/DBB/FT/2012/3446 Dated Dhubri the 28th June, 2012 To The Learned Member, Foreigners' Tribunal No.I, Dhubri.
Sub :- ENQUIRY REPORT.
Ref : Order dated 24-05-2012 in connection with FT Case No. 1194/G/09.
With reference to the subject cited above, I have the honour to state that, as ordered, the matter of genuineness of the certificate issued to Haran Ali was locally enquired by S.I.(B) Lutfor Rahman, I/C, Dhubri PPCP (ICP) and found that no such student namely Haran Ali, S/O Araj Ali, of Village- Falimari, P.S. & Dist.- Dhubri (Assam) got admitted into 1339 No. Dangirchar L.P. School from the year 1979 to 1983 as per Admission Register. The counter foil of the Certificate Books were also verified but no such certificate is found issued against Haran ali by Shri Gauri Sankar Sarkar, Head Master, 1339 No. Dangirchar L.P. School. As per the statement of Sri Gauri Sankar Sarkar, he was appointed as an Assistant Teacher in 940 No. Besharkona L.P. School in 1989 and joined there on 01-10-1989 an again he was transferred and posted to 1339 No. Dangirchar L.P. School as In-charge Head Master, where he joined on 16-11-1999 from 2142 No. Chaudhurir Char L.P. School. He never issued any such School Leaving certificate to Haran Ali though the signature put in the certificate is similar to his own signature. Some body might WP(C) 3381/15 oral dated 28/08/15 Page 4 of 11 have forged his signature and issue the certificate without his knowledge. Copy of enquiry report submitted by S.I.(B) Lutfor Rahman and connected documents are enclosed herewith for favour of your ready reference.
This is submitted for favour of your kind information and necessary action.
Enclo : As stated above.
Yours faithfully, Sd/- Illegible 28/6/20121 Superintendent of Police (B) DHUBRI"
5. Apart from the enclosed report of the SI(B), clearly depicting forgery on the part of the petitioner in obtaining the school certificate, the school documents were also enclosed. On perusal of the said records, what is further revealed is that in the Admission Register, the name of one Haran Ali Sekh (resembling the petitioner's name), son of Elahi Sekh appears, but on the other hand, the name of the petitioner's father is Araj Ali @ Harej Ali. The petitioner also named him as Haran Ali @ Haran Ali Sekh. Apart from the admission Register, the statement of Gauri Sankar Sarkar is also available who in his statement stated that the certificate was never issued by him.
6. Above apart, as has been discussed in the impugned judgement, if the year of birth of the petitioner is taken as 1969 (as claimed by him), WP(C) 3381/15 oral dated 28/08/15 Page 5 of 11 his projected father's name should have been there in the voter's lists prior to 1997 but surprisingly, the petitioner could not produce any voters' list containing the name of his father prior to 1977.
7. Ext. 7 is the linkage certificate on which the petitioner placed reliance. On perusal of the said document, it is found that the name of Harej is over-written. Originally, there was another name. This aspect of the matter has been discussed by the learned Tribunal. The certificate is also not countersigned by any competent authority. The petitioner also could not lead any reliable and cogent evidence to show that Md. Moslim and Royman Nessa, whose names appeared in the voters' list of 1965 and 1970 were the great grandparents of the petitioner. Likewise, there is also no cogent and reliable evidence that Ainuddin and Saleha Khatun, the projected grandparents and whose name appeared in the voters' list of 1975 and 1970 were in fact grandparents of the petitioner. Ext. 6, the forged school certificate, the date of birth of the petitioner was shown as 20/03/1974 but in the voters' list of 1989 (Ext. 4) his age is shown as 20 years, meaning thereby he was born in 1969 and not in 1974.
8. All the above aspects of the matter have been vividly discussed by the learned Tribunal in the impugned judgement. For a ready reference, para 5 of the impugned judgement, which is divided into parts and is reproduced below :-
WP(C) 3381/15 oral dated 28/08/15 Page 6 of 11
"8.
(i) On careful perusal of the evidence of the OP, it appears that the case projected by the OP is that he is a citizen of India by birth and that the names of his great grandparents and grandparents were recorded in the voters' lists of 1965 and 1970 of Sorukhetri LAC in the district of Kamrup and that the name of his father Araj Ali is recorded in the voters' list of 1977 of Chhaygaon LAC in the district of Kamrup. The extract copy of the voters' list of 1977 (Ex.3) shows clearly the age of Araaj Ali (the father of the OP) as 40 years.
If that be so, the father of the OP should have been born in the year 1937 and as such he should have been at least of the age of 23 years in the year 1960. Further, in the voters' list of 1989, the age of the OP is shown as 20 years. If that be so, his father should have been an adult person at the time of the birth of the OP i.e. in 1969 and his name should have appeared in any of the voters' lists prior to 1977.
(ii) But surprisingly, the OP did not produce any document to prove that his father's name was registered as a voter in any of the voters' lists prior to 1977. In the linkage certificate (Ex.7) relied upon by the OP, the name of his father appears to be overwritten. It appears that the name Harez Ali is made Arez Ali by making some WP(C) 3381/15 oral dated 28/08/15 Page 7 of 11 overwriting. The said certificate is not countersigned by any competent authority.
(iii) There is absolutely no cogent and reliable evidence to show that Md. Moslim and Royman Nessa, whose name appear in the voters' list of 1965 and 1970 of Sorukhetri LAC, were the great grandparents of the OP. Likewise there is no cogent and reliable evidence to show that Ainuddin and Sahela Khatun, whose names also appear in the voters' list of 1965 and 1970 of Sorukhetri LAC, were the grandparents of the OP. Again one more interesting fact is found in the school certificate (Ex.6) relied upon by the O.P.
(iv) In Ex.6, the date of birth of the OP is shown as 20.03.1974 but in the voters' list of 1989 (Ex-4) his age is shown as 20 years which shows that he should have been born in 1969 and not in 1974.
Therefore if the age of the OP (date of birth) shown in the school certificate is accepted as correct then his age shown in the voters' list of 1989 is incorrect.
(v) Again in the school certificate (Ex. 6) it is stated that he completed his primary education in the Dangirchar LP School on 31.12.1985 whereas in the same certificate the date of issue of the certificate is given as 02.12.1985 i.e. the date priot to the date of his completion of education and is certified. As such, both the linkage certificate (Ex.7) and the school certificate (Ex. 6) are found to be not at all reliable documents. No WP(C) 3381/15 oral dated 28/08/15 Page 8 of 11 reliance can be placed on them. In the voters' list of 1989 (Ex.4), the age of the OP is shown as 20 years whereas after eight years in the voters' list of 1997 his age is shown as 23 years only. The OP has stated in his written statement that as per school certificate his date of birth is 20.03.1974 and he read in the school up to 1985 only when he was only about 11 (eleven) years of age (as per school certificate). Then, the question arises as to how in the year 1989 his age was shown in the voters list as 20 years, when as per his school certificate he should have been only 15 years of age in 1989.
(vi) The OP has also stated in the written statement that the names of his parents were not recorded in the voters' list of 1966 due to underage but this statement is belied by the voters' list of 1977 (relied upon by the OP) where the age of his father is shown as 40 years and which shows that he (father of the OP) was about 29 years of age in the year 1966 and was not under aged for recording his name as a voter."
9. As has been held by the Apex Court in L.I.C. of India and Anr. Vs. Ram Pal Singh Bisen reported in 2010 (4) SCC 491, mere production of some documents or exhibiting the same without proving the contents thereof is not enough. In this connection, para 31 of the judgement is quoted below :-
WP(C) 3381/15 oral dated 28/08/15 Page 9 of 11
"31. Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Curt. Contents of the document cannot be proved by merely filing in a court."
10. Above apart, the petitioner having taken recourse to falsehood by producing false and forged documents, itself establishes that he is not an Indian citizen.
11. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly, it is dismissed. Consequent upon dismissal of the writ petition, now the Superintendent of Police (B), Dhubri shall ensure that the petitioner is arrested and detained in the detention camp till his deportation to her country of origin i.e. Bangladesh. The Deputy Commissioner, Dhubri shall ensure deletion of the name of the petitioner from the voter list, if any.
12. Independent of the above, the Superintendent of Police, Dhubri may also launch criminal proceeding against the petitioner for taking recourse to forgery, which finds mention in his above quoted report.
13. Let the matter be listed again after one month so as to submit report by the Superintendent of Police (B) Dhubri about the action taken in the terms of this order.
WP(C) 3381/15 oral dated 28/08/15 Page 10 of 11
14. Registry shall send down the case records to the learned court below along with a copy of this judgement and order. A copy of the judgement and order may also be furnished to Mr. B.J. Ghosh, learned State Counsel as well as Mr. S.C. Keyal, learned ASGI, for their immediate necessary follow up action. Copies shall also be sent to the SP(B), Dhubri and Deputy Commissioner, Dhubri, for their immediate follow up action.
JUDGE Sukhamay WP(C) 3381/15 oral dated 28/08/15 Page 11 of 11