JUDGMENT :

A.M. Bujor Barua, J.

Heard Mr. A.R. Sikdar, learned counsel for the petitioner and Ms. L. Devi, learned counsel for the respondents No. 1 and 6, being the Union of India and the State Coordinator of NRC, respectively. Also heard Mr. G. Sarma, learned counsel for the respondents No. 2 and 4, being the authorities in the Home Department; Mr. N.K. Das, learned counsel for the respondent No.3, being the Deputy Commissioner, Dhubri and Mr. A.I. Ali, learned counsel for the respondent No. 5, being the authorities in the Election Commission of India.

2. The petitioner Faijur Rahman @ Faizar Rahman was referred to the Foreigners’ Tribunal No. 7, Dhubri at Bilasipara for rendering an opinion as to whether he is a person who had entered the State of Assam from the specified territory on or after 25.03.1971 and accordingly F.T. 7th Dhubri Case No. 14/BLP/18 corresponding to F.T. Case No. 1717/BLP/11 was registered. The Tribunal rendered its opinion dated 28.06.2018 arriving at its conclusion that the petitioner is a foreigner who had entered the State of Assam on or after 25.03.1971. Being aggrieved this writ petition is instituted.

3. In the writ proceeding, the petitioner relies upon the voters’ list of 1965 of village Katajhar Pathar, Mouza Gobardhana in the present Barpeta district which contains the names of Afsar Ali Sarkar son of Rafatulla at Sl. No. 266, Rohila Khatun son of Afsar at Sl. No. 267 and Mazamel Hoque son of Afsar at Sl. No. 272. It is claimed that Afsar Ali Sarkar is the grandfather, Rohila Khatun is the grandmother and Mazamel Hoque is the father of the petitioner and all of them are shown to be residing in the same house No. 79. The petitioner also relies upon the voters’ list of 1970 of village Katajhar Pathar, Mouza Gobardhana in the present Barpeta district which also contains the aforesaid information except that Mazamel Hoque has now been named as Tazamel Hoque while remaining the son of Afsar staying in the same house as Afsar Ali Sarkar and Rohila Khatun. The petitioner thereupon relies upon the voters’ list of 1997 of village Katajhar Pathar, Mouza Gobardhana in the Barpeta district which contains the name of Mazammel Hoque son of Afsar at Sl. No. 614 and that of Faijur Rahman son of Mazammel at Sl. No. 620 and both are shown to be residing in the same house No. 216. It is accordingly claimed that the burden under Section 9 of the Foreigners Act, 1946 had been discharged by the petitioner to prove that he is an Indian citizen, inasmuch as, the names of Afsar Ali Sarkar the grandfather and Mazamel Hoque the father appear in the same voters’ list of 1965 of village Katajhar Pathar and both are shown to be residing in the same house No. 79 and that the voters’ list of 1997 of village Katajhar Pathar contains the name of Mazammel Hoque son of Afsar and Faijur Rahman son of Mazammel and both are shown to be residing in the same house No. 216.

4. We have also verified the records which contain the photocopies of the certified copies of the aforesaid voters’ lists with an endorsement that the original certified copies had been produced and the contents thereof had been proved before the Tribunal. In the opinion of the Tribunal dated 28.06.2018 the voters’ lists of 1965, 1970 and 1997 which were exhibited as Exhibits D, E and F respectively, had been discarded by referring to some oral evidence of DW4 who is supposed to be an official appearing on behalf of the Circle Officer and as the voters’ lists produced by the DW4 were unacceptable to the Tribunal, the contents of Exhibits D, E and F could not be compared with the originals.

5. We are not expressing any view on the authenticity of the authorization by the Circle Officer to DW4 but what we take note is that the Exhibits D, E and F were produced as certified copies of the referred voters’ lists of 1965, 1970 and 1997. Section 63 of the Evidence Act, 1872 provides that secondary evidence means and includes certified copies given under the provisions contain