Possession of identity documents is insufficient to establish citizenship when credible evidence raises suspicion; the burden of proof shifts to the accused if allegations of identity fraud are substantiated.

JUDGMENT :

AMIT BORKAR, J.

1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973 (“Cr.P.C.” for short) by the applicant seeking his release on regular bail in connection with Crime Register No.1276 of 2024, registered with Wagle Estate Police Station. The applicant is facing prosecution for offences punishable under Sections 3 35, 336(3), and 340 read with Section 3 (5) of the Bharatiya Nyaya Sanhita, 2023 (“ BNS ” for short) along with offences under Sections 3 (a) and 6(a) of the Passport (Entry into India) Act, 1950 and Sections 3 (1), 3(2) and 14 of the FOREIGNERS ORDER , 1948.

2. As per the case of the prosecution, the applicant is alleged to have entered the territory of India without valid passport or travel documents, and to have deliberately suppressed his foreign nationality by creating and using forged Indian identity documents, such as Aadhaar Card and PAN Card. It is alleged that by falsely showing himself as a citizen of India, he not only misrepresented his status before the authorities but also obtained the Aadhaar Card by submitting fabricated documents.

3. The record further shows that at the time of his apprehension, the applicant was found in possession of a mobile phone which, upon forensic examination, contained digital copies of birth certificates of the applicant and his mother, allegedly issued by authorities in Bangladesh. The contents of these documents raise a strong prima facie suspicion that the applicant is a Bangladeshi national, who entered India in violation of immigration laws.

4. The prosecution has also submitted that official verification regarding the genuineness of the Aadhaar card is awaited from the Unique Identification Authority of India (UIDAI), but such verification is presently held up as it requires prior approval or direction from the High Court for disclosure of such sensitive data.

5. It is further pointed out that during the course of investigation, the authorities have recovered material showing that the applicant had been in frequent contact with multiple mobile numbers linked to Bangladesh. The Internet Protocol Detail Records (IPDR) and Call Detail Records (CDRs) also indicate continued and extensive cross-border digital communication, which adds to the seriousness of the offence and supports the allegation of the applicant’s foreign origin and his illegal stay in India.

6. Learned Advocate appearing for the applicant has submitted that the applicant is a bona fide citizen of India and there is no conclusive or reliable evidence brought on record by the prosecution to prove that he is a national of Bangladesh. It is argued that the applicant has not committed any of the alleged offences, and that the so-called forged documents referred to by the investigating agency have already been seized during the course of investigation. Therefore, nothing further remains to be recovered from the applicant, and his continued custody serves no useful purpose.

7. The learned Advocate further submits that the birth certificate allegedly retrieved from the applicant’s mobile phone, which is relied upon by the prosecution to show Bangladeshi origin, is unverified, and does not even mention the applicant’s name. It is pointed out that this certificate was received via a WhatsApp message from an unidentified