The central legal point established in the judgment is the burden of proof on the accused to prove her citizenship under the Foreigners Act, 1946, and the importance of fair investigation and trial in delivering justice.

JUDGMENT

Siddhartha Roy Chowdhury, J. - 'The time then has arrived, Glaucon, when, like huntsmen, we should surround the cover, and look sharp that justice does not slip away, and pass out of sight and get lost; .....' 'The Republic'

2. Md. Wajiul Haque, A.S.I. of police, on 7th February, 2015 brought one girl of 20 years under arrest from Hili ICP area. Her name, according to A.S.I. Haque was Rohini Tabassum @ Sneha, a citizen of Bangladesh. Name of her father, as disclosed by the girl is Nur Mahammad of Kasipara, Agarpara, Shibgunj, District Nababgunj, Bangladesh. As the girl failed to produce any valid document to justify her presence in the Indian Territory, she was arrested and her belongings including a sum of Rs. 2400/- (INR) was seized. Such information of Md. Haque, the A.S.I of Police, gave birth to Hili P.S. Case No. 22 of 2015 under Section 14A of the Foreigners' Act.

3. After investigation, police submitted charge sheet and on 9th July, 2015 learned Additional District Judge, Fast Track Court, Balurghat, framed charge under Section 14A(b) of the Foreigners Act. Accused person stood trial having claimed her innocence.

4. Learned Trial Court having considered the oral testimony of four witnesses examined by the prosecution and six witnesses examined by and on behalf of the accused persons, held the accused guilty to the charge under Section 14A(b) of the Foreigners Act and sentenced her to suffer rigorous imprisonment for 4 years and to pay fine of R. 25,000/-with a default clause.

5. Mr. Sabyasachi Banerjee, learned Counsel for the appellant assails the judgement impugned being written with a closed mind. The accused is a girl of 20 years, Indian by birth, residing with her parents at Howrah. She reiterated her claim again and again when she was interrogated prior to her arrest and subsequent thereto.

P.W. 2, Kartick Saha and P.W. 3, Arup Rajbhar stated that at the time of interrogation, the accused told the police that she is a resident of Howrah. Even P.W. 1 stated that father of the accused came to Hili Police Station on 4th March, 2015. P.W. 4, S.I. Sudip Kumar Saha, the Investigating Officer stated that he submitted a report, disclosing that the accused person is a resident of village Khajurtti, Police Station Bagnan, District Howrah. But he did not submit any supplementary charge sheet in the final form.

6. Having taken note of such evidence according to Mr. Banerjee, learned Trial Judge had no reason to record an order of conviction. Father of the accused person appeared before the learned Trial Judge and adduced evidence. But absence of her mother on the witness box led the learned Trial Judge to disbelieve that parents of the accused person are Indian citizens. Though referring to the provisions of Citizenship (Amendment) Act learned Trial Judge has said a person born on or after 1st July, 1987 but before commencement of Citizenship (Amendment) Act, 2003 and either of whose parents is a citizen of India at the time of birth is a citizen of India. When father of the accused person came with the copy of general diary, registered after his daughter went missing, learned Trial Judge had no reason to hold that absence of any whisper about her mother, disqualifies the accused person to be considered as citizen of India. Learned Trial Court, since moved with a closed mind, she failed to consider the evidence in its proper perspective. According to Mr. Banerjee the judgement is but a manifestation of misreading of evidence, resulting into miscarriage of justice.

7. Mr. Avisek Sinha, learned Counsel representing the State, with all fairness expresses his inability to support the judgement impugned.

8. Since the accused claimed to be a citizen of India and not a foreigner, Section 9 of the Foreigners Act, 1946 saddles her with the burden to prove what she asserts, as if such fact is within her special knowledge. In this regard we can use the judgemet pronounced in the case of SIRAJUL HOQUE VS. THE STATE OF ASSAM & ORS. repor