ORDER

Date : 23-02-2018 (Ujjal Bhuyan, J)

Heard Mr. HRA Choudhury, learned senior counsel assisted by Mr. A. Matin, learned counsel for the petitioner and Mr. A. Kalita, learned Special Counsel, FT.

2. By filing this petition under Article 226 of the Constitution of India petitioner seeks quashing of order dated 25.05.2016 passed by the Foreigners Tribunal-1, Karimganj in FT Case No. 608/2007 (State vs Smt. Dipu Rani Das) declaring that petitioner and her forefathers had entered into India from the specified territory after 01.01.1966.

3. This Court by order dated 09.09.2016 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 her appearance before the Superintendent of Police (Border), Karimganj and furnishing of adequate surety.

4. Before considering the rival submissions and examining the materials on record, it would be apposite to advert to the order passed by the Tribunal. Tribunal had noted the contentions of the petitioner as well as the various documents filed by her which were marked as Exts. 1 to 9. Thereafter, Tribunal passed the order dated 25.05.2016 answering the reference in favour of the State in the following manner:-

“10] On a careful scrutiny of the above it transpires that except the Ext.9, there is no document to prove that the OP and her forefathers were residing in India prior to 25th March 1971. As all other Exhibits are post 1971, I do not feel necessity of scrutinizing those documents in the instant case and so they are kept out of consideration.

11] I am therefore, of the opinion that the OP and her forethathers entered into India from the specified territory after 01.01.1966.

12] This reference is thus disposed of by answering the question in negative holding the OP as a foreigner of that stream.”

5. We find from the record that the reference was initially made under the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) suspecting the petitioner to be an illegal migrant.

6. Be it stated that under Section 3 (1)(C) of the IMDT Act, an illegal migrant was defined as a foreigner who had unauthorisedly entered into India after 25.03.1971. Therefore, that was the allegation against the petitioner but we find that in the notice issued by the Tribunal to the petitioner, petitioner was asked to show-cause as to why she should not be declared as a foreigner under Section 2(a) of the Foreigners’ Act, 1946 without mentioning the stream of foreigners to which she allegedly belonged as per Section 6 A of the Citizenship Act, 1955, as amended.

7. We find that petitioner had filed written statement as well as adduced evidence both of herself as witness No. 1 and of Narayan Saha whom she claimed to be her father as witness No. 2. As noticed above, petitioner had exhibited a total of 9 documents.

8. The question before the Tribunal was whether Narayan Ch. Saha was a citizen of India and whether his presence on Indian soil could be traced to a period prior to 25.03.1971 which is the cut-off date for identification of foreigners in the State of Assam as per Section 6 A of the Citizenship Act, 1955, as amended, and, thereafter, as to whether petitioner was the daughter of Narayan Ch. Saha. This was required to be established by the petitioner by adducing cogent, admissible and reliable evidence because under Section 9 of the Foreigners Act, 1946 the burden is on the proceedee i.e., the petitioner to prove the above.

9. From the order of the Tribunal as extracted above, two things are discernible. Firstly, Tribunal did not examine the exhibits, including Ext-9, and did not record any finding that these exhibits were proved in accordance with law. It is trite that mere filing of a document or marking of a document as exhibit is not proof of the document. Tribunal has to decide admissibility of the document and proof of the contents of the documents as well as the truthfulness thereof in accordance with law; Tr