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Judgment
A.M. Bujor Barua, J
Heard Mr. A.J. Atia, learned counsel for the petitioner. Also heard Mr. A.I. Ali, learned counsel for the Election Commission of India, Mr. J. Payeng, learned counsel for the State of Assam appearing for the Foreigners' Tribunal and Border Areas as well as Ms. G. Sarma, learned counsel for the authorities under the Union of India.
On being referred by the Superintendent of Police, (Border) Nagaon FT(D) Case No.916/2015 was registered in the Foreigners Tribunal, Nagaon Court No.10th at Sankardev Nagar, Hojai.
Before the Tribunal, the petitioner submitted written statement and took the stand that she was born in village-Bengena Ati, Police Station-Doboka, Mouza- Niz Sahar Dist-Nagaon and after her marriage she is residing at village-Modertoli P.S. Doboka. A stand was taken that the name of the father was recorded in the voters list of 1966 of Village-Bengena Ati Mouza- Niz Sahar Dist-Nagaon as Abdul Hasim son of Asu Rahman, although the correct name ought to have been Abdul Hasim son of Gulam Rahman. A stand was also taken that in the voters list of 1970 of Village-Bengena Ati, the name of the father was recorded as Abdul Hasim Son of Gulam Rahman which according to the petitioner is the correct name of her father.
A stand was also taken that the voters list of 1977 of Village- Bengena Ati contains the name of Abdul Hasim son of Golam and the voters list of 1985 contains the name of Abdul Hasim son of Golam along with the name of her mother.
Before the Tribunal the voters list of 1966 of Village-Bengena Ati was exhibited which contains the name of Abdul Hasim son of Aachu Rahman age 22 at serial No.180. The voters list of 1970 contains the name of Abdul Hasim son of Golam Rahman age 31 years.
The voters list of 1977 contains the name of Abdul Hasim son of Golam age 36 years and Laila Khatun wife of Sahab Uddin age 20 years.
It is stated that the name of the husband of Laila Khatun was wrongly recorded in the voters list of 1977, whereas, the correct name of her husband ought to have been wife of Abdul Hasim. The voters list of 1985 of village Bengenaaati relied upon contains the name of Abdul Hasim son of Golam and Laila Khatun wife of Abdul Hasim age 32 years.
The Tribunal in its order dated 02.06.2017 upon referring to the evidence of the witnesses and the documents exhibited arrived at a conclusion that the statement made by the OP/DW-1 and OP/DW-2 as regards the documents exhibited have not been affirmed as required under the law and they have no evidenciary value.
Accordingly, the petitioner was declared to be foreigner who entered Assam after 25.03.1971.
The exhibits 1, 2, 3, 5, 6, 7, 8 and 9 are admittedly certified copies of the voters list.
The voters lists are public document and certified copy thereof is governed by Section 76 of the Evidence Act 1872. Section 77 provides that certified copy are not required to be proved. Accordingly, the conclusion of the Tribunal that the OP/DW-1 and OP/DW-2 have not affirmed the exhibits as required under law, according to our view is incorrect appreciation of law, unless the Tribunal is of the view that they are not certified copies.
Be that as it may, there is no conclusion being arrived at by the Tribunal as to whether the voters list of the aforementioned years do establish that the petitioner is a citizen of India or not. Accordingly, we are unable to sustain the order dated 02.06.2017 of the Foreigners Tribunal, Nagaon Court No.10th, Sankardev Nagar, Hojai and the same is set aside.
In course of the proceeding before the Court, the petitioner has also produced the copy of the voters list of 1989 which contains the name of the petitioner along with Abdul Hasim son of Gulam and Laila Khatun wife of Abdul Hasim, in a situation where the name of Abdul Hasim also appears in the voters list of 1966 and 1970 of village Bengena Ati.
If the name of Abdul Hasim son of Golam appeared in the voters list of 1970 of village Bengena Ati and the voters list of 1989 shows the petitioner to be the daughter of Abdul Hasim son of Gulam and the names are included by showing them to be residing in the same household, we are of the prima facie view that a link may have been established by the petitioner with Abdul Hasim son of Golam whose name appears in the voters list of 1970 of village-Bengena Ati.
Accordingly, we remand the matter back to the Tribunal for proper appreciation of the certified copies of the voter lists which are already exhibited. The Tribunal may also examine the aspect whether the exhibits are certified copies or they are ordinary copies. The petitioner may also exhibit the certified copies of the voter list of 1989 which contains the name of Rabia Khatun.
The petitioner shall appear before the Tribunal on 08.04.2019 and the Tribunal shall adjudicate the matter within a period of 60 days thereafter.
Accordingly, the Tribunal shall pass a fresh reasoned order by taking into consideration the voter list 1970 along with other voter lists that have been exhibited including the certified copy of the voter list of 1989 that may be produced by the petitioner.
It is stated that the petitioner is presently at detention in the detention camp at Tezpur. As we have interfered with the order dated 02.06.2017, the petitioner shall forthwith be released from detention upon submission of two sureties bond from two permanent and prominent personalities from her village or from a Government official ensuring continuous presence of the petitioner as and when required by the authorities to the satisfaction of the Superintendent of Police (Border) Hojai who shall verify and satisfy himself as to the authenticity and reliability of the two sureties that the petitioner may submit.
Writ petition is allowed to the extent as indicated above.