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IN THE HIGH COURT OF GAUHATI
UJJAL BHUYAN, NELSON SAILO, JJ.
BORHAN ALI @ BARHAN ALI - Appellant
Versus
UNION OF INDIA - Respondent
WP(C) No. 7669 of 2016
Decided on : 08-06-2018
Constitution of India , 1950 - Article 226 - Foreigners Act, 1946 - Section 9- Citizenship Act, 1955 - Section 6A - National Register of Citizens (NRC), 1951- Census Act, 1948- Section 15 - Evidence Act, - Sections 90,74(1)(iii), 61,62,64,65,76,77,79,1 and 3 - Civil Procedure Code ,1908 - Order 19, Rule1- Representation of People Act, 1951 -Anticipatory bail - Quashing of order - Petition under Article of Constitution of India petitioner seeks quashing of order passed by Foreigners Tribunal Rural at in H.F.T Case declaring petitioner to be a foreigner who had illegally entered into India Assam from Bangladesh - Petitioner submits that petitioner had discharged his burden under Foreigners Act and Tribunal was not justified in answering reference against petitioner and Referring to he submits that same was in name of his grandfather - This document is of year and Under Indian Evidence Act this document is more than thirty years old it must be accepted as a genuine and valid document and there was no objection to this document by State and in this connection - He has placed reliance on a decision of Supreme Court and he further submits that voters list is a public document within meaning of Evidence Act and admissible in evidence and it is not necessary to call in evidence author or persons supplying information to prove its genuineness - Held, If this judgment is looked at closely particularly and it goes against petitioner - If a document is proved contents would have to be taken as proved in its entirety and not in part and Extending this principle if a proceeded relies on a voters list he has to rely on same in its entirety and not in par and he cannot say that he will rely upon that part of voters list which is favorable to proceeded but would not rely upon that part of voters list which goes against him for vital discrepancies in name residence and age and a document has to be appreciated as a whole not in bits and pieces and in so far of Indian Evidence Act is concerned deliberation on same is not necessary as - Petitioner has failed to establish his linkage with his projected father and grandfather and that being position Court are of unhesitant view that petitioner had failed to discharge his burden under Foreigners Act to prove that he was not a foreigner but a citizen of India and On due consideration and Registry to send down LCR and inform concerned Foreigners Tribunal Superintendent of Police and Deputy Commissioner for taking necessary follow-up steps and Copies of this order may also be furnished to Standing Counsel Election Commission of India and State Coordinator NRC - Writ Petition dismissed
UJJAL BHUYAN, J.
1. This case was heard on 10.05.2018 and today is fixed for delivery of order.
2. We have heard Mr. A.R. Sikdar, learned counsel for the petitioner and Mr. A. Kalita, learned Special Counsel, Foreigners Tribunal (FT).
3. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 26.10.2016 passed by the Foreigners Tribunal No. 4, Kamrup (Rural) at Hajo in H.F.T Case No. 395/2015 (State v. Md. Borhan Ali) declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.03.1971.
4. This Court by order dated 22.12.2016 had issued notice while requisitioning the case record and passed an interim to the effect that petitioner should be allowed to remain on bail subject to his appearance before the Superintendent of Police (Border), Kamrup and furnishing of adequate surety.
5. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record, including the record requisitioned from the Tribunal.
6. Shri Nandan Sharma, Deputy Superintendent of Police (Border), Kamrup has filed an affidavit on behalf of Superintendent of Police (Border), Kamrup (Rural), i.e., respondent No. 3 supporting the impugned order passed by the Tribunal and seeks dismissal of the writ petition.
7. Mr. Sikdar, learned counsel for the petitioner, submits that petitioner had discharged his burden under section 9 of the Foreigners Act, 1946. Therefore, Tribunal was not justified in answering the reference against the petitioner. Referring to Ext. A Annual Khiraj Patta, he submits that the same was in the name of his grandfather Kosimuddin Kha. This document is of the year 1925-1926. Under section 90 of the Indian Evidence Act, 1872 (Evidence Act), since this document is more than 30 years old, it must be accepted as a genuine and valid document. There was no objection to this document by the State. In this connection, he has placed reliance on a decision of the Supreme Court in Oriental Insurance Co. Ltd v. Premlata Shukla, (2007) 13 SCC 476. He further submits that voters list is a public document within the meaning of Section 35 of the Evidence Act and, therefore, admissible in evidence. It is not necessary to call in evidence the author or the persons supplying the information to prove its genuineness. In this connection, Mr. Sikdar has placed reliance on a decision of the Orissa High Court in Ganesh Swain v. Nakadi Swain, AIR 1983 Orissa 279.
8. On the other hand, learned Special Counsel Mr. Kalita submits that burden was on the petitioner to prove his linkage with his projected father and grandfather relatable to a period prior to 25.03.1971 since that is the cut-off date for identification of foreigners in the State of Assam as per section 6A of the Citizenship Act, 1955, as amended.
8.1. In so far reliance placed by learned counsel for the petitioner to Section 90 of the Evidence Act is concerned, he submits that to accept such a document, it is essential that person who seeks benefit of Section 90 must prove production of the document from proper custody. Mere presentation of a document claiming it to be 30 years old or more would not suffice. Moreover, this provision will come into play only if linkage is established with Kosimuddin Kha.
8.2. In so far decision of the Orissa High Court in Ganesh Swain (supra) is concerned, Mr. Kalita submits that no doubt voters list is a public record within the meaning of Section 35 of the Evidence Act. In case reliance is sought to be placed on such a document, it has to be a certified copy in which event it will be secondary evidence. Any other copy of such a document which is neither primary evidence nor secondary evidence would be inadmissible.
9. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record, including the record requisitioned from the Tribunal.
10. In his written statement filed before the Trib
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