1. Heard Mr. A. Roshid, learned counsel for the petitioner. Also heard Mr. S. C. Keyal, learned ASGI representing the Union of India. I have also heard Ms. H.M. Phukan, learned State counsel. I have also perused the entire materials on record.

2. By means of this writ petition, the petitioner, a declared foreigner has put to challenge the judgement and order dated 27/02/2013 of the Learned Member, Foreigners Tribunal (IInd) Morigaon in case No. FT(C) 218/2010 {IM(D)T case No. 743/2004} (State of Assam Vs. Md. Abdul Khai @ Abdul Khayer). By the said judgement, answering the reference made against the petitioner as to whether he is a foreigner or not, the Foreigners Tribunal has held that the petitioner is a foreigner under Section 2(a) of the Foreigners Act, 1946 who entered into India (Assam) after the cut-off date i.e. 25/03/1971.

3. As discussed in the impugned judgement, the Superintendent of Police (B), Morigaon made the reference against the petitioner to the then IM(D)T suspecting the petitioner to be a foreign national. As per the report furnished , the petitioner aged about 33 years as of 2004 was suspected to be an illegal migrant from village Khuligar under Iswarganj Police Station of District Syllet of Bangladesh who illegally entered into Assam after 25/03/1971. During investigation he could not produce any document in support of his Indian citizenship. Accordingly, the reference was made to the them IM(D)T. Thereafter the case was transferred to the Foreigners Tribunal.

4. On receipt of notice, the petitioner appeared before the Tribunal and filed written statement on 29/08/2011. In the proceeding before the tribunal, the prosecution adduced evidence of one Shri Mukheswar Deka, who was the I.O. of the case who in his evidence proved the report that was submitted pursuant to the investigation. In this connection, para 6 of the impugned judgement is quoted below.

'6. The PW.1, proved report submitted in Form-I and Form-II as Ext.1 and Ext. 2. Ext. 1(1) and Ext. 2(1) are the signatures. Ext. 2(2) signature of Inspector of Police (B), Ext. 2(3) signature of Dy.S.P. (H/Q), Ext. 2(4) signature of A.D.C. Ext. 2(5) signature of S.P.(B) Morigaon. Ext. 3 is F.I.R. Ext. 3(1) is signature of S.P.(B) Morigaon. Ext. 4 is forwarding report by the S.P.(B), Morigaon. Ext. 4(1) is his signature. The I.O. was duly cross-examined.

5. The petitioner also examined himself and another witness to prove his Indian citizenship. They were so examined as DW-1 and DW-2.

6. In the written statement that was filed before the Tribunal, the petitioner denied that he had entered into the territory of India (Assam) after the cut-off date i.e. 25/03/1971. As regards his claim of Indian citizenship, he stated that his grant father’s name appeared in the voter list of 1966 and in 1970. He named his grand-father as Alal Uddin. The petitioner also stated that his name appeared in the voter list of 1997. According to the petitioner, his name also appeared in the voter list of 2010 and 2011. On perusal of the written statement contained in the records received from the Tribunal, it is found that the year 2010 and 2011 are over-written as against the original years indicated in the typed written statement. The petitioner also stated that there was land in the name of his father and that he is a BPL card holder.

7. The learned Tribunal upon a threadbare discussion of the evidence so adduced has held thus :-

'8. The D.W. 2 Md. Jakir Ussain exhibited some documents in support of O.P. Ext.'Ka' and Ext. 'Kha' copies of voter lists in the name of A. Seikh showing the voter of 1966 and 1970 respectively. Ext. 'Ga' voter list of 1997 in the name of Alal Uddin. Ext. 'Gha' copy of land document in the name of one Md. Abdul Seikh. Ext. 'Unga' registered sale deed in the name of Md. Alal Uddin. The documents reveal that the land was purchased from Md. Abdul Jobbar Mulla on 27.06.1997 after the cut of date. Ext. 'Cha' chita copy is not admissible. Ext. 'Chha' certificate given by village Headman Shri Daya Ram Bordoloi of Rangadaria village but the certificate is not duly proved. Ext. 'Ja' one revenue paying receipt dated 21.01.2008 in the name of one Md. Jalal Uddin not in O.P’s father’s name. Except the revenue paying receipt no other earlier land revenue paying receipts submitted. Ext. 'Jha' one Special Family Identity Card, used from 17.11.2004 in the name of one Md. Alauddin not in O.P’s father’s name. Ext. 'Nia' school certificate dated 25.08.12. The date shows that certificate was collected after proceeding. Moreover, the certificate is not duly proved. The Ext. 'Nia' school certificate shows that, O.P. read up to class-II (two) but could not write his name. The O.P. put thumb impression while recorded evidence. Moreover, the certificate was not duly proved.

9. It appears from record that, out of exhibited documents Ext. 'Ka' and Ext. 'Kha' in the name of one A. Seikh but O.P’s father was Lt. Alal Uddin as appers from Ext.1 and Ext. 2 police report. Moreover, Ext. 'Ka' and Ext. 'Kha' documents are over written. These procure documents are not duly proved. Ext. 'GA' copy of voter list of 1997 in the name of O.P’s father after cut off date. Ext. 'Gha' is not in O.P’s father’s name. Ext. 'Unga' land document executed in the year 1997. Ext. 'Cha' copy of draft chitha. These documents are not duly proved and not admissible. Moreover, Ext. 'Unga' sale deed executed after cut off date.

10. Under Section 9 of the Foreigners Act 1946, burden of proof lies on O.P. that he/she is a citizen of India. In the instant case O.P. failed to discharge its burden. Citizenship cannot be established by exhibiting of extract copy of voter list and other documents without proving the originals as held by the Hon’ble Gauhati High Court reported in case law (2011) (3) GLT 684 (may be referred to).'

11. I have carefully considered the submissions made by the learned counsel for the parties and have also perused the entire materials on record including the records received from the Tribunal. As to what are the documents produced before the learned Tribunal has been noted above. 1966 voter list (extract photocopy only) contains the name of one Abdul Seikh aged 60 years. Similarly 1970 voter list (extract and photocopy only) contains the name of one Abdul Seikh aged 60 years.

The petitioner claims that said Abdul Seikh is his grant father. However, he measurably failed to establish the linkage. Moreover, there is no explanation as to why his grandfather’s name did not appear in any other voter list pre 1966 and post 1970.

12. In support of the claim of the petitioner he had also produced photocopy and extract of 1997 voter list containing the name of one Alal Uddin, aged 45 years. Like that of his grandfather, there is no explanation as to why Alal Uddin’s name did not appear in any other voter list pre or post 1997.

13. As discussed in the impugned judgement, the petitioner read upto class-II and in support of such plea, he also produced a school certificate. However, he did not prove the same by examining the authority, who had issued the certificate. If he had read up to Class-II, there was no question of putting thumb impression instead of putting signature in the written statement/Vakalatnama and counter affidavit.

14. As has been held by the Apex Court in the case of LICI Vs. Rampal Singh Bishen reported in (2010) 4 SCC 491, mere exhibiting the document does not prove the contents of the documents, it will have to be proved as per Evidence Act. In this connection, para 31 of the said judgement is quoted below :-

31. Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Curt. Contents of the document cannot be proved by merely filing in a court.'

15. As per the provisions of the Foreigners Act, 1966, burden lies on the suspect to prove that is Indian citizen. The petitioner measurably failed to prove his Indian citizenship about which discussion has been made in the impugned judgement referred to above.

16. Above being the position, I do not find any merit in the writ petition and accordingly it is dismissed. Interim order stands vacated.

17. Consequent upon dism

issal of the writ petition, now the Superintendent of Police (B), Morigaon shall ensure that the petitioner is arrested and detained in the detention camp till his deportation to his country of origin i.e. Bangladesh. The Deputy Commissioner, Morigaon shall ensure deletion of the name of the petitioner from the voter list, if any. 18. Let the matter be listed again after one month so as to submit report by the Superintendent of Police (B) Morigaon about the action taken in the terms of this order. 19. Registry shall send down the case records to the learned court below along with a copy of this judgement and order. A copy of the judgement and order may also be furnished to Ms. H.M. Phukan, learned State Counsel as well as Mr. S.C. Keyal, learned ASGI, for their immediate necessary follow up action. Copies shall also be sent to the SP(B), Morigaon and Deputy Commissioner, Morigaon, for their immediate follow up action.