Gauhati High Court
Ufa Ali @ Ufar Ali vs The Union Of India & 3 Ors on 26 March, 2014
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IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)
WP(C) NO.6566/2013
1. Ufa Ali @ Ufar Ali,
S/o Late Samot Ali @ Sahamot Ali,
R/O- Village Nakhola Grant,
P.O- Jagiroad,
P.S- Jagiroad,
Dist- Morigaon, Assam.
.............................. Petitioner
- Versus-
1. The Union of India, represented by the Ministry of
Home Affairs, Government of India, New Delhi.
2. The State of Assam, represented by the Commissioner
and Secretary to the Government of Assam, Home
Department, Dispur, Guwahati-6.
3. The Superintendent of Police (B), Morigaon, District-
Morigaon, Assam.
4. The Officer-in-Charge, Jagiroad Police Station, Dist-
Morigaon, Assam.
........................ Respondents
BEFORE HON'BLE MR. JUSTICE B.K. SHARMA For the petitioner : Mr. H.R.A. Choudhury, Adv Mr. A. Matin, Adv For the respondents : Mr. M. Bhagabati, CGC Mr. N. Upadhyay, learned State Counsel Date of hearing : 24.02.2014 Date of Judgment : .03.2014 2 JUDGMENT AND ORDER (CAV)
1. The petitioner, who has been declared to be a foreigner (illegal Bangladeshi migrant) by the Foreigners Tribunal (1st), Morigaon, Assam, vide order dated 25.06.2013 in FT(C) Case No. 96/2008 (Ref. IM(D)T Case No. 264/2001) (State of Assam Vs. Md. Ufa Ali), has filed the instant writ petition challenging the said order.
2. As has been claimed in the writ petition, the petitioner aged about 50 years is a Citizen of India by birth. He has referred to the voter list of 1966 and 1970 stating that his parents' names Samat Ali @ Sahamat and Rupban Nessa appeared therein. According to the petitioner his name also appeared in the voter list of 1989 and 1997. As regards the 1989 and 1997 voter list the petitioner has stated that he was shown 26 years and 50 years respectively in the said two voter lists. It has further been stated that his father's name was wrongly recorded as "Samat" instead of Samat Ali in the voter list of 1989. As regards recording of his age as 50 years in the 1997 voter list, the same is said to be wrong recording in place of 34 years of age. It has also been stated that in the said voter list his father's name was wrongly recorded as "Sahamat" instead of Samat Ali. The petitioner has also referred to the voter lists of 2005, 2010, 2011 and 2011, in which his name appeared. However, according to him his age was wrongly recorded therein.
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3. Above are the documents, on the basis of which the petitioner said to be aged 50 years in the writ petition, claims to be an Indian citizen by birth. The learned Tribunal vide its order dated 25.06.2013 having held the petitioner to be a Foreign National (illegal Bangladeshi migrant), the petitioner invoke the writ jurisdiction of this Court.
4. I have heard Mr. H.R.A. Choudhury, learned senior counsel assisted by Mr. A. Matin, learned counsel for the petitioner and Mr. M. Bhagabati, learned CGC. I have also heard Mr. N. Upadhyay, learned State Counsel. I have also perused the entire materials on record including the records received from the tribunal. My findings and conclusion are as follows.
5. 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 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 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 4 "Burden of Proof", the apex Court in the aforesaid case of Sarbananda Sonowal, has made the following observation.
"1 8. 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 1 956 SC 404 it was held as follows:
"Section 1 06 is an exception to S. 1 01 . 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. 1 06 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 1 974 SC 859, proceedings were initiated under Section 1 67(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. "5
". . . . . . . . . . . . . . . On the principle underlying S. 1 06 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 West Bengal v. Meer Mohd. Umar, 2000(8) SCC 382, it was held that the legislature engrafted special rule in Section 1 06 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 1 90 and Ezhil v. State of Tamil Nadu, AIR 2002 SC 201 7.
In R. v. Oliver, 1 943 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, (1 91 6) 5 M & 6 S 206 : 1 4 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, (1 993) 1 49 LT 1 90, 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. "
1 9. 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. "
6. 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).7
"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 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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . "
7. In the instant case, the learned Tribunal appreciating the evidence on record has held the petitioner to be a foreign national who illegally entered Assam after the cut-off date i.e. 25/03/1971. Such findings of fact cannot be lightly interfered with exercising writ jurisdiction unless it is shown to be a perverse finding or the finding being not based on the evidence on record. The writ Court exercising extra ordinary jurisdiction under Article 226 of the Constitution of India cannot sit on appeal over the findings of facts recorded by the Tribunal. Needless to say that this Court exercising its jurisdiction under Article 226 of the Constitution of India cannot re-appreciate the evidence produced before the 8 Tribunal and on the basis of such re-appreciation of evidence arrived at a finding different from that recorded by such Tribunal. The set and laid down principle is that a question of fact once decided by the Tribunal on the basis of evidence on record, it is not appropriate for the High Court under Article 226 to re- appreciate the evidence and come to a different conclusion.
8. Keeping in mind the above principles, it is to be seen as to whether the findings arrived at by the Tribunal on the basis of evidence on record can be said to be perverse or devoid of appreciation of evidence on record or there is any error of law which has apparent on the face of the record. It is a well established principle that a finding of fact cannot be challenged under Article 226 on the ground that the evidence before the Tribunal was insufficient or inadequate to sustain the findings, as a writ Court is not a Court of appeal. So also errors in appreciation of documents or affidavits, or errors in drawing inferences, or omission to draw inferences; in other-words, errors of a Court of appeal only can examine and correct, are not amenable to correction in a certiorari proceeding. But, if it is shown that in recording the said findings, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which had influenced the impugned findings, the same can be assailed in a writ petition.
9. In the enquiry that was conducted against the petitioner suspecting him to be a Foreigner, it was found that he was born at village 1/Rampur under Police Station- Arfangram, District- Moimonsingh, Bangladesh. Before the Tribunal, the petitioner 9 claimed to be an Indian Citizen by birth and referred to the particular certificate of the Gaon Burah issued in 2005. It was further contended that his father's name was included in the voter list, without, however, specifying as to of which years. In the proceeding before the Tribunal, the petitioner produced photocopies of the voter lists of 1997; 1966 and 1970. He also produced two certificates issued by the Gaon Burah and the Panchayat.
10. In the 1997 voter list, the name of one Ufa Ali, son of Sahamat, aged 50 years appears. In 1966 voter list, the names of Samat Ali and Rupban Nessa, aged 32 and 28 years respectively appear. In the 1970 voter list, the name of one Samat Ali appeared. In the two certificates, the petitioner has been certified to be a resident of the particular locality.
11. The learned Tribunal appreciating the evidence on record has held thus:-
"I have carefully perused the records and heard argument from both sides. After a careful scrutiny of the documents exhibited, what I find is that there are discrepancies in the name of the father of the O. P. in the documents. In Ext. 'Ka', the voter, Ufa Ali, aged 50 years is shown as son of Sahamat. In Ext. 'Kha', the voter list, 1 966, one of the voters is, Rupban Nessa, W/o- Samat Ali, aged 28 yrs and other voter is Samat Ali, S/o- Kitab Ali, aged 30 years. Similarly, in Ext. 'Ga', the voter list, 1 970, the voter is shown as Samat Ali- Kitab Ali, aged 37 years, but in Exts. 'Ga' and 'Onga', the certificates issued by the Gaonburha and President of Deosal Gaon Panchayat 10 respectively, the name of the father of the O. P. , Ufa Ali has been shown as Sahamat Ali. Hence, it cannot be ascertained whether Samat Ali or Sahamat Ali is the father of the O. P. It also appears that the O. P. , in para 6 of the written statement submitted that the name of his father was Lt Samat Ali @ Sahamat Ali, but the words, ".......... Orofe Sahamat....... . " have been written in separate ink in order to correspond with the name of Sahamat Ali as shown in Exts. 'Ka', 'Ga' and 'Onga'. As per Police records, the person prosecuted is Md Ufa Ali, S/o- Lt Samed Ali, but there is no document to show that Lt Samed Ali if the father of the O. P. , Ufa Ali. As per Ext. 'Ka', the voter, Ufa Ali, S/o- Sahamat is 50 years old. As such, the probable year of his birth would be 1 958 and he obtained the age of voting at 21 years in the year 1 979, but there is no other document to show that the O. P. was a voter before 1 997. While deposing before the Tribunal, the O. P. , Ufa Ali described his age as 55 years on 1 7. 06. 201 3. The cutoff date for identification of foreigners is 25. 03. 1 971 and hence, the voter list, 1 997 in the name of the O. P. , Ufa Ali becomes irrelevant.
With these discrepancies in the name of the father of the O. P. and in respect of his age, the matter of citizenship of the O. P. cannot be considered and that too by birth as claimed by the O. P. No birth certificate has been produced. It was held by Mr. Justice, B. K. Sharma in WP© No. 6053/2001 that "It is always dangerous to place reliance on such names unless cogent and acceptable evidence are adduced to clinch the burden of proof of Indian Citizenship being a serious issue cannot be viewed lightly so 11 as to fall prey to the story made out by the person concerned. "
12. In the proceeding before the Tribunal, the petitioner adduced oral evidence as OPW-1. He also examined another witness Md. Yakub Ali as OPW-2. The documents exhibited before the Tribunal were marked as Ext-Ka, Ext- Kha, Ext-Ga, Ext-Gha, Ext- Onga. In the written statement filed before the Tribunal in respect of the name of the petitioner's father, certain corrections were made with different ink in order to correspond with the name of Sahamat Ali as shown in Ext-Ka, Ext-Gha and Ext-Onga. On the other hand, as per the police record, the person prosecuted is Md. Ufa Ali, son of late Samed Ali, but the petitioner failed to produce any document in the name of late Samed Ali i.e. his father. As per Ext-Ka voter list, Ufa Ali, son of Sahamat was 50 years old. Thus his probable year of birth is 1958 and he attained the age of voting at 21 years in 1979, but the petitioner could not produce any document from 1979 to 1997.
13. Above being the position, this Court exercising writ jurisdiction, cannot interfere with the same. As has been held by the Apex Court in LICI Vs. Rampal Singh Bisen reported in (201 0) 4 SCC 491 , admission of documents in evidence does not amount to its proof, in other words, merely making of exhibit or a document does not dispense with its proof, which is required to be done in accordance with law. The documentary evidence adduced by the petitioner was also required to be proved in accordance with the provisions of the Evidence act which he failed to do. Under the Law of Evidence it is necessary that contents of documents are 12 required to be proved either by primary or by secondary evidence. At the most, admission of documents may also to admission of contents but not its truth. Apart from the aforesaid position of the case, the documents were also not produced and marked as required under the Evidence Act. Needless to say that the contents of the documents cannot be proved by merely filing in a Court.
14. As has been held by the Division Bench of this Court in Moslem Mondal & Ors -vs- Union of India & Ors, reported in 2010(2) GLT 1, a writ proceeding is not a substitute for a proceeding before the Tribunal. In the said case, the appellants in their writ petitions brought certain new evidence to support their claim of being Indian Citizens. It was held that the Writ Court can examine only those materials placed before the Tribunal and not new evidence as the Writ Court does not enjoy original jurisdiction to determine a question as to whether a person is Foreigner or not.
15. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed, without however, any order as to costs.
16. Registry may transmit the case records to the Tribunal.
17. The Superintendent of Police (B), Morigaon and the Deputy Commissioner, Morigaon 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. 13
18. Let copies of this judgment and order be furnished to the Superintendent of Police (B), Morigaon and the Deputy Commissioner, Morigaon. 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.
19. List after one month for furnishing reports by the Superintendent of Police (B), Morigaon and the Deputy Commissioner, Morigaon.
JUDGE Alam