The necessity of proving the contents of documents by primary or secondary evidence, and the inadmissibility of photocopies of documents as evidence.

1. Heard Mr. M.U. Mandal, learned counsel for the petitioner. Also heard Mr. B. J. Ghosh, learned State Counsel and so also Mr. S.C. Keyal, learned ASGI. I have also perused the entire materials on record including the records received from the Tribunal.

2. The matter pertains to the opinion rendered by the Foreigners Tribunal (1st), Morigaon in case No. FT (C) 833/2006 (Police reference No. 401/2000) (Sate of Assam Vs. Mustt. Farida Khatun). By the said order, the petitioner has been declared to be a foreigner as she failed to discharge her burden of proof as envisaged under Section 9 of the Foreigners Act, 1946.

3. As will be evident from the impugned order, all the documents submitted by the petitioner were only photocopies. Needless to say that such photocopies of documents are inadmissible in evidence. That apart, as discussed in the impugned order and also discernible from the evidence on record, the petitioner herself stated that the house of her father Foizuddin was at Hatipara Gaon under Rupohi Police Station, but photocopies of voter lists incorporating the name of Foizuddin indicate that he was a voter of Dakhin Khatowal village. As has been recorded in the order of the Tribunal, not a single document could be proved by the petitioner as required under the Law of Evidence.

4. As per the evidence of prosecution witnesses i.e. PW-1 and PW-2, during investigation by the Police the petitioner failed to produce any valid document to prove her Indian citizenship. PW-3 in his deposition stated that during investigation it was revealed that the petitioner came to India (Assam) for livelihood after the cut-off date i.e. 25/03/1971 from Village and Post Office Chailakura in the district of Syllhet. The petitioner in her deposition stated that Foizuddin is her father and his house was in the Village Chatipara under Police Station Rupohi. On the other hand, OPW-2 examined by her stated that the house of Foizuddin was at Dakhin Khatowal and that he was born and brought up at Dakhin Khatowal.

5. Mr. M.U. Mandal, learned counsel for the petitioner submits that along with the photocopies of documents, the petitioner also produced the originals i.e. the certified copies. He further submits that even the photocopies being the copies of the certified copies of the documents are admissible in evidence. According to him, the petitioner having produced the photocopies of the certified copies of the documents, she had duly discharged her burden of proof as envisaged under Section 9 of the Foreigners Act, 1946. He also submits that the documents being public documents, there was no necessity to produce the certified copies thereof. In this connection, he has placed reliance on the following judgements :

1. 2012 (1) SCC 425 – (Jaswant Singh Vs. Gurdev Singh and others);

2. 2013 (4) SCC 97 – (Laxmibai (dead) through LRs and another Vs. Bhagwantbuva (dead) through LRs and others);

3. AIR 1963 SC 1633 – Madamanchi Ramappa and another Vs. Muthaluru Bojjappa) ; and

4. 2013 (1) GLT 809- (State of Assam Vs. Moslem Mondal and others).

6. Both Mr. S.C. Keyal, learned ASGI and Mr. B.J. Ghosh, learned State Counsel submit that the above argument of the learned counsel for the petitioner is totally misplaced. They submit that the photocopies of the documents are not admissible in evidence and that too when the same were not exhibited and proved as per the Law of Evidence.

7. Section 62 and 63 of the Evidence Act define Primary Evidence and Secondary Evidence. Certified copies given under the provisions of the Act, although are secondary evidence and required to be proved by primary evidence but as indicated in Section 64 and 65 of the Act, there are exception to the said Rule. That apart, under Section 77 of the Evidence Act, 1872, certified copies of documents may be produced in proof of the contents of the public documents and under Section 79, the Court is required to presume as to the genuineness of the certified copies.

8. In the insta