Binoi Debnath vs The Union Of India And 6 Ors
2023 Latest Caselaw 4548 Gua

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GAHC010155812019




                          THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                            Case No. : WP(C)/5306/2019

         BINOI DEBNATH
         S/O. SRI UPENDRA DEBNATH, VILL. GOWRANGAPUR, P.S. SILAPATHER,
         DIST. DHEMAJI, ASSAM.



         VERSUS

         THE UNION OF INDIA AND 6 ORS.
         THROUGH HOME SECRETARY, MINISTRY OF HOME AFFAIRS, GOVT. OF
         INDIA, SHASTRI BHAWAN, NEW DELHI.

         2:THE STATE OF ASSAM
          REP. BY THE SECRETARY
          DEPTT. OF HOME AFFAIRS
          GOVT. OF ASSAM
          DISPUR
          GUWAHATI-781006.

         3:THE ELECTION COMMISSIONER

          ASSAM
          DISPUR
          GUWAHATI

         4:THE STATE CO-ORDINATOR

          NATIONAL REGISTRATION OF CITIZEN (NRC) BHANGAGARH
          GUWAHATI-05.

         5:THE DY. COMMISSIONER

          DHEMAJI
          DIST. DHEMAJI
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              ASSAM.

             6:THE SUPDT. OF POLICE (B)

              DHEMAJI
              DIST. DHEMAJI
              ASSAM.

             7:THE OFFICER IN CHARGE

              DHEMAJI POLICE STATION
              DIST. DHEMAJI
              ASSAM

Advocate for the Petitioner    : MR. H A SARKAR

Advocate for the Respondent : ASSTT.S.G.I.




                                     BEFORE
                   HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK
                  HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

                                              ORDER

08-11-2023 (M.R.Pathak, J)

Heard Mr. H A Sarkar, learned counsel for the petitioner and Mr. B Sharma, learned CGC for the respondent No. 1. Also heard Mr. G Sharma, learned Standing counsel, Home Department, Assam for the respondent Nos. 2, 6 & 7; Mr. A I Ali, learned Standing counsel, Election Commission of India for the respondent No. 3 as well as Mr. P Sharma, learned Additional Senior Government Advocate, Assam for the respondent No. 5.

2. Mr. Sarkar, learned counsel for the petitioner has placed before the Court that while referring the matter to the Tribunal concerned it was requested to determine whether the petitioner is a foreigner of the period from 01.01.1966 to 24.03.1971, but the learned Member, Foreigners' Tribunal No. 2, Dhemaji, Silapather by its final order dated 07.11.2018 passed in F.T. Case No. 347/2017 declared the petitioner to be a foreigner of post 25.03.1971 under the Foreigners Act, 1946, who had illegally entered into the territory of India (Assam) without any valid documents.

3. Mr. Sarkar, learned counsel for the petitioner further submitted that the said decision dated Page No.# 3/5

07.11.2018 of the learned Member, Foreigners' Tribunal No. 2, Dhemaji, Silapather, noted above, is beyond the jurisdiction of the Reference and as such, needs to be set aside and quashed.

4. On the other hand, Mr. G Sharma, learned Standing counsel, Home Department by placing the decision of a Co-ordinate Bench of this Court decided on 12.06.2023 in WP(C) No. 2279/2021 (Rukia Begum Barbhuiya @ Rukia Begum -Vs.- Union of India & Others), wherein the Court have categorically observed that on being referred, Foreigners' Tribunal can go beyond the period of 01.01.1966 to 24.03.1971 to determine whether the proceedee is a foreigner or not under the Foreigners Act, 1946.

5. We have perused the judgment of the Co-ordinate Bench of this Court passed in the case of Rukia Begum Barbhuiya @ Rukia Begum, noted above.

6. The petitioner filed this writ petition on 29.06.2019, challenging the impugned final order dated 07.11.2018 passed by the learned Member, Foreigners' Tribunal No. 2, Dhemaji, Silapather in F.T. Case No. 347/2017.

7. Issue Notice, returnable by 8 (eight) weeks.

8. As Mr. B Sharma, learned CGC; Mr. G Sharma, learned Standing counsel, Home Department, Assam; Mr. A I Ali, learned Standing counsel, Election Commission of India as well as Mr. P Sharma, learned Additional Senior Government Advocate, Assam have accepted notices on behalf of the respondent Nos. 1; 2, 6, 7; 3 and 5 respectively, no formal notice be issued to those respondents.

9. Petitioner shall serve requisite extra copies of this writ petition including the Annexures appended thereto, to Mr. B Sharma, learned CGC; Mr. G Sharma, learned Standing counsel, Home Department, Assam; Mr. A I Ali, learned Standing counsel, Election Commission of India as well as Mr. P Sharma, learned Additional Senior Government Advocate, Assam by 09.11.2023, obtaining necessary acknowledgments from them in that regard.

10. Petitioner shall take step for service of notice upon the respondent No. 4 by Registered Post with A/D by 09.11.2023, providing its correct and proper address with requisite postal stamp.

11. Call for the records of F.T. Case No. 347/2017 from the office of the learned Member, Foreigners' Tribunal No. 2, Dhemaji, Silapather, Assam.

12. A copy of this order requisitioning the case records and the forwarding letter by which the Page No.# 4/5

case records of said F.T. Case No. 347/2017 are sent to this Court be made part of the record file of the Tribunal.

13. In the interim, the petitioner, namely, Sri. Binoi Debnath, if not arrested earlier, shall not be taken into custody and deported from the territory of India pursuant to the impugned final order dated 07.11.2018 passed by the learned Member, Foreigners' Tribunal No. 2, Dhemaji, Silapather in F.T. Case No. 347/2017, subject to the condition that he shall appear before the Superintendent of Police (Border), Dhemaji on or before 18.11.2023 during the office hours and shall furnish a bail bond of Rs. 5,000/- with one local surety of like amount to the satisfaction of the said authority.

14. On his appearance before the SP (Border), Dhemaji, as directed above, the said authority shall obtain necessary information and documentation as required under the Rules from the petitioner, noted above, for securing his presence.

15. Further, the Superintendent of Police (Border), Dhemaji is directed that on appearance of the petitioner within the period indicated above, the biometrics of the iris of both eyes, the fingerprints of both hands and photographs of the petitioner shall be obtained, where after, he shall be allowed to remain on bail.

16. It is made clear that without giving full details of the petitioner's new address and/or destination before the Superintendent of Police (Border), Dhemaji, Assam and without obtaining any prior written permission from the said authority, the petitioner shall not leave the jurisdiction of said SP (Border), Dhemaji, Assam.

17. Failure on the part of the petitioner to comply with the aforesaid directions, the bail granted to the petitioner shall stand automatically vacated and he shall be liable to be taken back into custody.

18. This order be brought to the notice of the Registrar (Judicial).

19. On the returnable date, the petitioner shall apprise the Court as to when he appeared before the Superintendent of Police (Border), Dhemaji, as directed above.

20. List accordingly.

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JUDGE JUDGE

Comparing Assistant