Point of Law: A person who is suspected to be an illegal migrant collusively by matching and resembling similarly of names can picked up voter lists of 1966 and 1970 with help of internet communication system by collecting data of electoral roll from computer which suit and served his purpose and this manipulation have become a common practice by matching same with his parents and grandparents and it is so subtle, that with a little overlook illegal migrant can easily become a Citizen of India with help of documents of other genuine Indian similarly situated named person.

JUDGMENT :

N.Kotiswar Singh, J.

Heard Mr. M.I. Hussain, learned counsel for the petitioner. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K.D. Choudhury, learned Asstt. Solicitor General of India for respondent No.1; Ms. Devi for respondent No.4 as the learned Standing Counsel, NRC; Mr. N. Pathak, learned Standing Counsel, Foreigners Tribunal appearing for respondent Nos.2, 6 & 7; Mr. A. Bhuyan, learned Standing Counsel, ECI for respondent No.3 and Ms. K. Phukan, learned Government Advocate, Assam for respondent No.5.

2. The present petition has been filed against the impugned judgment and order dated 03.10.2018 passed by the Foreigners Tribunal No.7, Barpeta in F.T. Case No.165/2016 [Corresponding to R/FT Case No.52/14]. The impugned opinion was passed against the petitioner as the procedee had failed to prove his linkage with his parents after considering all the evidences available on records with his projected parents.

3. The Tribunal, after considering all evidences and pleadings adduced by the petitioner, came to the finding that the petitioner had failed to discharge the burden of proof that he was born to genuine Indian parents and accordingly, the Tribunal declared him a foreigner of post 1971 stream as per Section 6A of the Citizenship Act, 1955 and also declared the wife of the petitioner Jamiran Nesssa as a suspected illegal immigrant.

4. We have perused the discussions and reasons for the decision of the Tribunal in F.T. Case No.165/2016 vide impugned order dated 03.10.2018.

The petitioner as proceedee had relied upon 6 (six) documents which were exhibited as Exhibit-A, B, C, D, E & K in the proceeding and which are as follows:

a) Ext.A is the translated certified copy of the voter list of 1966.

b) Ext.B is the translated certified copy of the voter list of 1970.

c) Ext.C is the translated certified copy of the voter list of 1997.

d) Ext.D is the translated certified copy of the voter list of 2010.

e) Ext.E is the Gaonburah Certificate dated 27.06.2016.

f) Ext.K is the Elector Photo Identity Card (EPIC) of Gajibar Rahman.

5. As regards Exhibit-E which is the Certificate issued by the Gaonburah, the Tribunal by referring to the cross-examination of the Gaonburah observed that the Gaonburah had admitted during his cross-examination that Exhibit-E was issued on the basis of the voters list and that he was not aware of the provision of the Executive Instruction part-VIII, Chapter-VIII of the Assam Land and Revenue Regulation Act, 1886 and the Gaonburah also admitted that without following the established procedure, he was issuing these kinds of certificates to the people residing in his jurisdiction. The Tribunal noted that the said Executive Instruction does not authorize a Gaonburah to issue such a certificate in the manner done and accordingly, the Tribunal held that the issuance of the certificate by the Gaonburah was without following the statutory and legal sanction, is inadmissible in evidence and as such, the Gaonburah is disentitled to prove the contents of the document by oral evidence. Further, the Tribunal also noted that in the said certificate, Exhibit-E, the State Emblem was found to be embossed at the top of the certificate which amounts to unauthorized use of the State Emblem which renders the certificate inadmissible in evidence and accordingly, discarded the certificate.

6. Coming to the evidence of one Gajibar Rahman, D.W. 3, who claimed that he is the brother of the petitioner, the Tribunal on perusal of the affidavit of D.W. 3 noted that there is no disclosure by the said Gajibur Rahman about the lineage of the said D.W. 3 with the petitioner. The Tribunal also observed that the only disclosure the petitioner made in the affidavit is that Anser Ali and Jarian Katun are his parents. The Tribunal accordingly, held that it can be presumed that D.W.3 does not have any special knowledge of the petitioner Kalu Miya’s lineage and hence, his evidence on the basis of the relationship status that