Razia Begum & Ors. vs State & Ors.
2008 Latest Caselaw 1323 Del

              HIGH COURT OF DELHI AT NEW DELHI

                        W.P. (Crl.) 677/2008
                              Date of Decision: August 12, 2008

Razia Begum & Ors.                    ...  Petitioners
                           Through: Mr. Rajiv Dutta, Sr. Adv.
                           with Mr. Hiren Dasan, Adv.
                     Versus
STATE & Ors.                         ...  Respondents
                           Through: Ms. Mukta Gupta, Adv.
CORAM:
HON'BLE MR. JUSTICE S.L. BHAYANA
1.     Whether reporters of local paper may be
       allowed to see the judgment? Yes
2.     To be referred to the reporter or not? Yes
3.     Whether the judgment should be referred in the
       Digest? Yes
S. L. BHAYANA, J.

This is a writ petition filed under Article 226 of the

Constitution of India read with Section 482 Cr.PC for

quashing and setting aside deportation order dated 23.04.08,

passed by respondent No.4, i.e., DCP, Foreigners Regional

Registration Office, New Delhi.

2. Briefly stated facts of the case are that on

28.12.2007 acting on a secret information 16 persons

including petitioners No.2 to 5 were apprehended from the

area of P.S. Khanpur, New Delhi by the Deportation Cell,

South District. On enquiry, it was revealed that they all were

illegal migrants from Bangladesh and came to India illegally.

3. Learned counsel for the petitioner contended that

all the petitioners, namely, Razia Begum, Mohd.

Nizammuddin, Sheikh Hasina, Mohd. Shahid, Hatim Ali and

Marjina Begum are Indian nationals and in support of his

contention, he produced picture of lineal descendents of Razia

Begum, petitioner No.1, who has filed the present writ

petition. Chart of lineal descendents of Razia Begum is given

below because all the other petitioners claim to be Indian

citizens through her, as natural citizens, as they were born

out of the wedlock of Razia Begum and Mohd. Nizammuddin.

Mohd. Nizammuddin could not be examined so far by the

authorities as he is not traceable and petitioner No.1 did not

disclose any information about him.

               Petitioner No.1                   Mohd. Nizamuddin
               (Razia Begum)                   Husband of Razia Begum
                                                   (Not traceable)




               Petitioner No.2                         Petitioner No.3
               Mohd. Shahid                            Sheikh Hasina
                    (Son)                          (wife of Mohd. Shahid)




              Petitioner No.4                          Petitioner No.5
                Hatim Ali                              Morjina Begum
               (minor son)                            (minor daughter)

4. To buttress his arguments, learned counsel for the

petitioner has shown me ration card and an election card,

which he claims to have been issued to persons, who are

sought to be deported and he claims that once a ration card

or an election card is issued to a person he is deemed to be

an Indian citizen.

5. Learned counsel for the State, on the other hand,

submitted that on inquiry it was revealed that Razia Begum,

petitioner no.1 and her husband Mohd. Nizammuddin are not

Indian nationals. They had been illegally migrated to India

from Bangladesh in 1990s and during that period they got

prepared identity card, ration card, domicile certificate &

national certificate.

6. It is further submitted that petitioner No.1 has

failed to produce any documentary proof in support of her

claim that she was born in India and lived at Qutubddin

Dargah. She has also failed to produce any proof of birth of

her son Mohd.Sahid and daughter-in-law, Sheikh Hasina and

in which hospital or locality of India they were born. It is

pertinent to mention here that parents of Sheikh Hasina have

already been deported to Bangladesh by FRRO. They were

also apprehended along with Sheikh Hasina and other

persons on 28.12.2007.

7. It is argued that petitioners have not come to this

Court with clean hands as they have obtained the ration card,

election card etc. on the basis of the false and fabricated

documents. Petitioner No.1, Razia Begam, applied for Indian

national passport, which was duly rejected by the concerned

authority, not only once but thrice with different date of birth,

addresses and even different mother's name during the period

25.05.98 to 17.06.99. She moved her first passport

application on 25.05.1998 and gave her date of birth as

10.2.1956 and place of birth at Delhi. She gave her mother's

name as Sabato Davi and gave her permanent address K-II

1012, Sangam Vihar, New Delhi. On inquiry by the police, it

was revealed that the applicant was a Bangladeshi national

and, therefore, her application was rejected.

8. On 18.03.99, she again moved her second

passport application in which she gave her date of birth as

01.01.1960 and place of birth at Delhi. She gave her mother's

name as Samat Bano and permanent address K-II 1012,

Sangam Vihar, New Delhi and attached the irresolute

documents, i.e., ration card, nationality certificate, election

identity card and an affidavit for date of birth. On inquiry by

the police, it was revealed that the applicant was a

Bangladeshi national and, therefore, her application was

rejected.

9. On 17.06.1999, Razia Begum, petitioner no.1

again applied for issuance of passport, in which she gave her

date of birth as 10.04.1957, place of birth at Delhi, mother's

name as Samato Bano, permanent address as 252/2

Mehrauli, New Delhi and attached a number of documents,

i.e., election identity card and an affidavit for date of birth.

She succeeded in her third attempt and got issued an Indian

national passport in her name on 31.07.99 on the basis of

forged and fabricated documents and in collusion with the

passport officials.

10. It is clear from the above that Razia Begum,

petitioner No.1 got the passport issued on the basis of forged

and fabricated documents. The petitioners are residing in

India by manipulation and by false identity like ration card,

election identity card. On the basis of these documents, they

have also obtained counterfeit Nationality Certificate.

11. The Authorities had made inquiries about the

petitioners. After the inquiry, it has become clear that each

and every document submitted by the petitioners i.e. ration

card, election identity card, nationality certificate etc. were

obtained on the basis of false and forged documents.

12. It is fairly conceded by the counsel for the

petitioner that Sheikh Hasina is a Bangladeshi national and

that she has not applied for Indian citizenship after her

marriage with Mohd. Shahid. He submits that Sheikh Hasina

being Bangladeshi national can be deported.

13. It is submitted by learned counsel for the State

that petitioner Nos.4 and 5 are the children of petitioner

Nos.2 and 3 both born after 2003. As both of them are

Bangladeshi nationals so they cannot claim Indian citizenship

on the ground that one of their parents is a foreign national.

In this regard, Section 3 of Citizenship Act, 1955 is

reproduced below:

―Citizenship by birth-(1) Except as provided in sub-section (2), every person born in India

(a) On or after the 26th day of January, 1950, but before the 1st day of July, 1987;

(b) On or after the 1st day of July, 1987, but before the commencement of the Citizenship (Amendment) Act, 2003 and either of whose parents is a citizen of India at the time of his birth;

(c) On or after the commencement of the citizenship (Amendment) Act, 2003, where-

(i) both the his parents are citizens of India; or

(ii) One of whose parents is a citizen of India and the other is not an shall be a citizen of India by birth.

(2) A person shall not be a citizen of India by virtue of this section if at the time of his birth--

(a) either his father or mother possesses such immunity from suits and legal process as is accorded to an envoy of a foreign sovereign power accredited to the President of India and he or she, as the case may be, is not a citizen of India; or

(b) his father or mother is an enemy alien and the birth occurs in a place then under occupation by the enemy.‖

14. Admittedly Sheikh Hasina is a foreign national so

respondent Nos. 4 and 5 have become foreign national as per

Section 3 of the Citizenship Act, 1955.

15. Keeping in view the discussion above, I am of the

opinion that petitioner nos.2 to 5 are Bangladeshi nationals

and DCP, FRRO is fully empowered under Foreign National

Act, 1946 to deport them as they are illegal immigrants.

Merely, because ration card or election identity card has been

obtained by fraudulent means, it does not ipso facto confer

citizenship upon the foreigners. Conferring of citizenship is an

act which is governed by law. A foreign national cannot

automatically be deemed to be an Indian citizen without

complying with the procedure established by law in this

respect.

16. Though in a criminal case the general rule is that

the burden of proof is on the prosecution but if any fact is

especially within the knowledge of the accused, he has to lead

evidence to prove the said fact mandate of Section 106 of

Indian Evidence Act 1872. There is a good and sound reason

for placing the burden of proof upon the concerned person

who asserts to be a citizen of a particular country. In order to

establish one's citizenship, he may produce (or required to

give evidence) of (i) his date of birth (ii) place (iii) name of his

parents (iv) their place of birth and citizenship. In the present

case, onus is upon the petitioners to prove that they are

citizens of India in which they miserably failed.

17. There is a continuing influx of Bangladeshi

nationals into India on account of a variety of reasons

including religious and economic. It is difficult to make a

realistic estimate of the number of illegal migrants as they are

able to mingle easily with the local population due to ethnic

and linguistic similarities. The large scale influx of illegal

migrants has led to large tracts of sensitive borders which has

serious implication for internal security. The influx of

Bangladeshi nationals who have illegally migrated poses a

threat to the integrity and security of India. FRRO is duty

bound in this regard to take all necessary measures. The

order of deportation is not punishment but a method of

ensuring the return to his own country of an alien who has

not complied with the conditions. Hence the Bangladeshi

nationals who have illegally migrated to India or trespassed

into, have no legal right of any kind to remain in India and

they are liable to be deported. It is well-settled in the

International law that the persons who reside in the

territories of countries of which they are not nationals,

possess a special status under international law. States have

a right to expel them from their territory and refuse to grant

them certain rights which are enjoyed by their own nationals.

18. It is pertinent to mention here that the writ

petition No.133/2008 filed by petitioner No.1 on 28.01.08

with the prayer that petitioners No.2 to 5 be not deported

without the permission of the Court was earlier dismissed by

this Court on 09.05.08.

19. In view of the foregoing discussion and keeping in

view the inquires made by the authorities with regard to the

identity of the petitioners, I do not find any infirmity in the

order of deportation dated 23.04.08 passed by the authorities.

20. The writ petition is dismissed.

21. A copy of this order be given dasti under the

signatures of the Court Master of this Court.

August 12, 2008                             S.L. BHAYANA, J.
Richa