Somar Ali vs The State Of Assam And 6 Ors
2023 Latest Caselaw 4153 Gua

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GAHC010023272020




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

                            Case No. : WP(C)/678/2020

         SOMAR ALI
         S/O- LT. SAHID ALI, VILL. CHOTLABARI, P.S. HAJO, DIST. KAMRUP(R),
         ASSAM. PIN NO. 781102.



         VERSUS

         THE STATE OF ASSAM AND 6 ORS.
         REP. BY THE SECY. TO THE GOVT. OF ASSAM, HOME DEPTT., DISPUR,
         GHY.-6.

         2:THE DY. COMMISSIONER
          KAMRUP(R)
          DISTRICT
         ASSAM.

         3:THE SUPDT. OF POLICE (B)
          KAMRUP(R)
         ASSAM.

         4:THE OFFICER-IN-CHARGE (B)
          HAJO P.S.
          DIST.
          KAMRUP(R)
         ASSAM.

         5:SC
          ELECTION COMMISSION OF INDIA

         6:LD. COUNSEL FOR THE STATE CO-ORDINATOR
          NATIONAL REGISTRAR OF CITIZENS.

         7:THE UNION OF INDIA
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                REP. BY THE SECY. TO THE GOVT. OF INDIA
                MINISTRY OF HOME AFFAIRS
                SHASTRY BHAWAN
                TILAK MARG
                NEW DELHI-1

Advocate for the Petitioner    : MR. N N KARMAKAR

Advocate for the Respondent : GA, ASSAM




                                    BEFORE
                  HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK
                      HONOURABLE MR. JUSTICE BUDI HABUNG

                                           ORDER

06-10-2023 (M.R.Pathak, J)

Heard Mr. S Nath, learned counsel for the petitioner and Mr. G Sharma, learned Standing counsel, Home Department, Assam for the respondent Nos. 1, 3 & 4. Also heard Mr. P Sharma, learned Government Advocate, Assam for the respondent No. 2; Mr. A I Ali, learned Standing counsel, Election Commission of India for the respondent No. 5 as well as Ms. L Devi, learned CGC as well as Standing counsel, NRC for the respondent Nos. 7 & 6 respectively.

2. In a Reference made by the Superintendent of Police (Border), Kamrup, the learned Member, Foreigners' Tribunal No. 4, Kamrup (R) in H.F.T. Case No. 1300/2015 arising out of I.M.(D).T. Enquiry No. 824/2002 vide the impugned opinion/order dated 09.12.2019 opined the petitioner to be an illegal migrant under the Foreigners Act, 1946, who had entered into the territory of India (Assam) on or after 25.03.1971.

3. Being aggrieved with the said opinion/order dated 09.12.2019, the petitioner filed this writ petition on 31.01.2020.

4. Petitioner contended that earlier the learned Member, Foreigners' Tribunal No. 4, Kamrup (R) in GFT (R) Case No. 1589/2009/351 corresponding to IMDT Case No. 891/2002 vide Judgment dated 29.05.2013 opined his brother, Bakkar Ali to be an Indian citizen by Page No.# 3/4

birth and not a foreigner, but the learned Member, Tribunal No. 4, Kamrup (R) did not consider that aspect.

5. learned counsel for the petitioner has submitted that the petitioner has not been arrested pursuant to the impugned opinion/order dated 09.12.2019 passed in H.F.T. Case No. 1300/2015 arising out of I.M.(D).T. Enquiry No. 824/2002.

6. Issue Rule, returnable by 8 (eight) weeks.

7. Office to requisition the records of H.F.T. Case No. 1300/2015 arising out of I.M.(D).T. Enquiry No. 824/2002 from the office of the learned Member, Foreigners' Tribunal No. 4, Kamrup (R), Assam.

8. A copy of this order requisitioning the case records and the forwarding letter by which the case records of said H.F.T. Case No. 1300/2015 arising out of I.M.(D).T. Enquiry No. 824/2002 are sent to this Court be made part of the record file of the Tribunal.

9. In the interim, the petitioner, namely, Md. Somar Ali, if not arrested earlier, shall not be taken into custody and deported from the territory of India pursuant to the impugned opinion/order dated 09.12.2019 passed by the learned Member, Foreigners' Tribunal No. 4, Kamrup (R) in H.F.T. Case No. 1300/2015 arising out of I.M.(D).T. Enquiry No. 824/2002, subject to the condition he shall appear before the Superintendent of Police (Border), Kamrup (R) on or before 18.10.2023 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.

10. On his appearance before the SP (Border), Kamrup (R), 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.

11. Further, the Superintendent of Police (Border), Kamrup (R) 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.

12. It is made clear that without giving full details of the petitioner's new address and/or destination before the Superintendent of Police (Border), Kamrup (R), Assam and without Page No.# 4/4

obtaining any prior written permission from the said authority, the petitioner shall not leave the jurisdiction of said SP (Border), Kamrup (R), Assam.

13. 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.

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

15. List accordingly.

                               JUDGE                                   JUDGE




Comparing Assistant