Gauhati High Court
Horidas Dey @ Hori Dey vs The State Of Assam And Ors on 6 August, 2015
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C) No.5199/2008
Sri Horidas Dey @ Hori Dey,
S/o Late Hara Kumar Dey,
Resident of Village-Khowang Colony,
District-Dibrugarh, Assam. ... Petitioner.
VERSUS
1. State of Assam.
2. Union of India.
3. Foreigners Tribunal, Dibrugarh. ...Respondents.
BEFORE THE HON'BLE MR JUSTICE HRISHIKESH ROY For the petitioner : Mr. S.K. Ghosh, Mr. S.P. Choudhury. ... Advocates For the respondent No.1 : Mr. M. Bhagabati. ... GA For the respondent No.2 : Mr. D.C. Borah. ...CGC.
Date of hearing and Judgment : 6.8.2015.
JUDGMENT AND ORDER Heard Mr. S.K. Ghosh, the learned Counsel appearing for the petitioner. The State is represented by the learned Government Advocate Mr. M. Bhagabati. Mr. D.C. Borah, the learned CGC appears for the Union of India.
2. This matter arises out of the reference made to the Foreigners Tribunal for determination of the status of the petitioner under the Foreigners Act, 1946. Previously the matter was pending before the Illegal Migrants Determination Tribunal (IMDT) but after the Supreme Court decision, the reference was transferred to the Foreigners Tribunal.
3. The petitioner participated in the proceeding (Case No. F.T. 15/2006) but he failed to produce any document to show that he entered India prior to 1971. He relied on the 1966 Voters List of his brother Jogeswar Dey, who was shown to be 75 years in the voters list and the petitioner being the younger brother with WP(C) No.5199/2008 Page 1 of 3 2 an age difference of 30 years, would have been 45 years of age in the year 1966. Thus during the proceeding before the Foreigners Tribunal, the petitioner was aged about 60 years and yet he was unable to produce any Pre-1971 document. The petitioner previously admitted before the Enquiry Officer that his family originally hails from Village-Sawpara, P.S.- Munsiganj, District-Dhaka, in erstwhile East Pakistan.
4. The learned Tribunal took into account the xerox copy of the 1977 Voters List produced by the petitioner although strictly speaking, the same is not admissible in evidence. But in that voter list while the name of one Hari Das was reflected at Sl. No.245, the father's name of the voter was reflected as Purnachandra. Moreover name of the wife of the voter was shown as Anjali, whereas the name of the petitioner's wife is Lakhirani. Confronted with the discrepancy in the information pertaining to his elder brother in the 1966 Voters List and the information projected to be that of the petitioner in the 1977 Voters List, the petitioner was found to be uncertain on whether Hara Kr. Dey or Purnachandra was his father's name. It is also noticed that the D.W.2, D.W.3 and D.W.4 while testifying as supporting witnesses, were unsure about the concerned year since when, they claimed to have known the petitioner or the year when he voted. Moreover the claim made by the petitioner of having stayed at Dihing Kiner Bengali Gaon in Naharkotia Sub-Division could not be proved through evidence. Therefore after elaborate discussion of the evidence on record, the learned Tribunal through the impugned judgment dated 11.9.2008 (Page-13) declared the petitioner to have illegally entered India after 25.3.1971 and thus the reference was answered in State's favour.
5. In his own evidence, the petitioner admitted that he has no supporting document pertaining to himself or his father on legitimate entry to India. In his cross-examination, he claimed that his brother Jogeswar Dey is elder to him by 30 years. As D.W.1, he further stated that he heard from his parents that they came from Dhaka District but he doesn't have any proof of being an Indian citizen. The D.W.2 Indra Kr. Dey claimed that he knew the petitioner to have voted but he was unable to say in which year, the petitioner cast his vote. The WP(C) No.5199/2008 Page 2 of 3 3 evidence of the D.W.3 Bisu Dey did not throw any light on the status of the petitioner. The evidence of the defense witness Arjun Ch. Kar was full of uncertainty and was based on approximation of the years and age and similarly the evidence of D.W.5 Sushil Chakraborty too was based on assumption and imagination.
6. What is conspicuous in the present case is that the Foreigners Tribunal took into account the oral testimony of the witnesses and also considered the 1966 and 1977 Voters List produced by the petitioner. The discrepancy in the name of the petitioner's father and his age vis-à-vis his brother Jogeswar Dey were noted by the Tribunal. A middle aged about 45 years in 1966 was unable to furnish any proof of having entered India prior to 1971 and this was considered to be an adverse factor by the Tribunal.
7. According to me the learned Tribunal answered the reference with adequate reasons and the conclusions are found to be consistent with the evidence. Thus since the petitioner was afforded a fair opportunity, no infirmity is noticed with the verdict. For these reasons, this case is found to be devoid of merit and the same is accordingly dismissed. No cost.
8. The Registry should furnish a copy of this order to Mr. M. Bhagabati, the learned Government Advocate and also send a copy of this order to the Foreigners Tribunal, Dibrugarh.
JUDGE Datta.
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