ORDER :

Ujjal Bhuyan, J.

1. Heard Mr. A.C. Sharma, learned counsel for the petitioner and Mr. J. Payeng, learned Special Counsel, FT.

2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 18.08.2016 passed by the Foreigners Tribunal, Bongaigaon No. 2 at Abhayapuri (Tribunal) in BNGN/FT/Case No. 1583/2007 (State vs. Mojid Ali) declaring the petitioner to be a foreigner, who had illegally entered into India (Assam) from the specified territory that is Bangladesh on or after 25.03.1971.

3. This Court by order dated 06.10.2016 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should be allowed to remain on bail subject to his appearance before the Superintendent of Police (Border), Bongaigaon and furnishing of adequate surety.

4. An affidavit-in-opposition has been filed on behalf of respondent No. 5 supporting the order of the Tribunal dated 18.08.2016. Allegation of the petitioner that Investigating Officer did not visit the residence of the petitioner and did not record his statement has been denied. It is stated that in the enquiry, sufficient opportunities were granted to the petitioner to produce documents in support of his Indian citizenship but the petitioner failed to produce such documents. Thereafter, reference was made.

5. Submissions made by learned counsel for the parties have been considered. Also perused the record, including the record requisitioned from the Tribunal.

6. From the record, it is seen that the reference against the petitioner was to the effect that he was suspected to be an illegal migrant from Bangladesh who had illegally entered into India (Assam) after 25.03.1971. Enquiry Officer in his enquiry report dated 25.7.2005 stated that original residence of the petitioner was at village Islampur under Khandia Police Station in the district of Faridpur, Bangladesh. For poverty, he had entered into India through illegal way after 25.03.1971. Therefore, he opined that petitioner was an illegal migrant who had entered into India after 25.03.1971. Report of the Enquiry Officer was duly considered by the Superintendent of Police (Border), Bongaigaon whereafter reference was made to the then Foreigners Tribunal, Bongaigaon on 23.11.2006 but after creation of additional Tribunals, it was assigned to the Tribunal for opinion.

7. In his written statement, petitioner stated that he was the grandson of late Haru Sheikh @ late Haru Dewani, a resident of village Kolepatar under Dhubri Police Station in the district of Dhubri. He was a citizen of India and his name appeared in the National Register of Citizens (NRC), 1951. Besides that, his name appeared in the voters list in 1970. He died in 1972. Father's name was Abdul Matin @ Matin Fakir who was a resident of village Kabaitari Part-IV under Jogighopa Police Station in the district of Bongaigaon. He was a voter of Abhayapuri (South) constituency in the year 1997 and died in the year 1999. Petitioner became a voter of Abhayapuri (South) constituency in the year 2014. Earlier he had studied in the Jhaukura M.E. School under Chapar Police Station in the district of Dhubri.

8. This was all that the petitioner stated in her written statement which by any account was wholly inadequate to establish his identity as a citizen of India when the same was questioned by the State, having regard to the mandate of Section 9 of the Foreigners Act, 1946 as explained by the Supreme Court in paragraph-26 of Sarbananda Sonowal Vs. Union of India, (2005) 5 SCC 665. Not only were there glaring omissions in the written statement but whatever were stated suffered from material contradictions. In so far omissions are concerned, petitioner did not mention the date or year of his birth; consequently his age at the time of filing the written statement was not disclosed. He also did not mention the names of his mother and paternal grandmother, not to speak of brothers and sisters.