Gauhati High Court
Page No.# 1/7 vs The Union Of India And 5 Ors on 30 July, 2025
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/7
GAHC010134762025
2025:GAU-AS:9877-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3715/2025
ATAP UDDIN ALIAS ATTABUDDIN
S/O- OSMAN ALI, VILL.- MALAHU, P.O. BHURAGAON, P.S. BHURAGAON,
DIST. MORIGAON, ASSAM, PIN- 782121.
VERSUS
THE UNION OF INDIA AND 5 ORS
REPRESENTED BY THE MINISTRY OF HOME AFFAIRS, NEW DELHI-110001.
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-781006.
3:THE DISTRICT COMMISSIONER
MORIGAON
DIST. MORIGAON
ASSAM
PIN- 782105.
4:THE SUPERINTENDENT OF POLICE (B)
MORIGAON
ASSAM
PIN- 782105.
5:THE ELECTION COMMISSION OF INDIA
NEW DELHI-110001.
6:THE STATE CO-ORDINATOR
NATIONAL REGISTRAR OF CITIZENS (NRC)
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BHANGAGARH
PIN-781032
Advocate for the Petitioner : MR. A M AHMED, B DAS
Advocate for the Respondent : DY.S.G.I., SC, ECI,GA, ASSAM,SC, NRC,SC, F.T
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MR. JUSTICE RAJESH MAZUMDAR
ORDER
Date : 30.07.2025
(R. Mazumdar, J)
Heard Mr. A.M. Ahmed, learned counsel for the petitioner. Also heard
Mr. M.R. Adhikari, learned CGC; Mr. G. Sarma, learned standing counsel for the
FT matters and NRC; Mr. M. Islam, learned counsel appearing on behalf of A.I.
Ali, learned standing counsel for the ECI; and Mr. H.K. Hazarika, learned Govt.
Advocate for the State respondent.
2. By filing this writ petition under Article 226 of the Constitution of
India, the petitioner has assailed the ex parte opinion dated 09.05.2024,
rendered by the learned Member, Foreigners Tribunal 2 nd, Morigaon, in Case No.
F.T.(C) 1090/12, arising out of Police Reference IM(D)T Case No. 986/04, dtd.
08.10.04, by which the petitioner was declared as an illegal migrant of post
25.07.1971 stream. In this matter, notice was issued on 20.06.2025 and the
records as called for have been received.
3. The prayer for bail was left to be considered on receipt of records
from Tribunal.
4. Since the records have been received, the matter is taken up for
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disposal.
5. The brief fact of the case is that a reference was forwarded by the
Superintendent of Police (Border), Morigaon against the writ petitioner on
08.10.2004 under the provisions of the erstwhile IM(D)T Act. After the IM(D)T
Act was struck down by the Honourable Apex Court, the present proceeding was
initiated as Case No. F.T.(C) 1090/12 in the Foreigners Tribunal 2 nd, Morigaon.
On receipt of notice from the learned Tribunal, the petitioner had appeared
before the learned Tribunal and contested the proceeding by filing written
statement as well as written evidence by way of affidavit in support of his
written statement. However, having filed the written evidence by way of
affidavit, the writ petitioner did not appear further for cross-examination by the
State and due to such non-appearance, the evidence was closed.
6. By referring to several judgments of the Honourable Apex Court, the
learned Tribunal has held that since the proceedee did not make himself
available for cross-examination, a presumption would arise that the case set up
by him in his defence is not correct. Further, by holding that the proceedee
failed to discharge the burden of proof imposed on him under section 9 of the
Foreigners Act, 1946, he was declared to be a foreigner under section 2(a) of
the Foreigners Act, 1946, who had illegally entered into India (Assam) from
specified territory, i.e. Bangladesh on or before 25.03.1971. The order declaring
the petitioner to be a foreigner has been assailed in this writ petition.
7. The records received from the learned Tribunal have been perused.
8. In his effort to justify the absence of the petitioner before the
adjudicating authority after he had submitted his written statement and
evidence by way of affidavit, the learned counsel for the petitioner has referred
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to the medical documents annexed as Annexure-9 series of the writ petition,
which are certificates issued by Lokopriya Gopinath Bordoloi Regional Institute
of Mental Health, Tezpur and has submitted that the petitioner had been under
treatment of the said institute from around 2014 onwards and he had been
diagnosed to be suffering from F20 + F10.1. The learned counsel for the
petitioner has also referred to later medical documents, which are of the year
2023, 2024 and 2025 to submit that it was due to the medical condition of the
petitioner that he could not appear before the learned Tribunal for cross-
examination. He therefore submits that the petitioner deserves an opportunity
to face the cross-examination. He has, thus, prayed that the matter be
remanded back to the learned Tribunal to give the petitioner such opportunity.
9. Mr. G. Sarma, learned standing counsel for the FT matters, on the
other hand, has submitted that no such ground was taken before the learned
Tribunal to explain the absence of the writ petitioner at the relevant point of
time and therefore, such a ground taken now does not deserve any
consideration. He has also drawn attention to the fact that the documents
submitted now are not in continuity and therefore, may not require
consideration.
10. We have perused the records of the learned Tribunal and also gone
through the documents annexed to the writ petition.
11. The documents annexed by the petitioner indicate that one of the
diagnosis was of F20 + F 10.1. In psychiatry, F20 is the ICD code of
Schizophrenia and F 10.1 is the ICD code of alcohol abuse and it falls within the
broader category of mental and behavioural disorder due to use of alcohol. On
further perusal of the medical documents, it is seen that the documents indicate
a trail of consultation and treatment from the year 2014 onwards through 2016-
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17 and the documents at page-57 of the writ petition would indicate that the
petitioner had also approached the Institute of Mental Health on 20.10.2023
and later periods, which continue up to 12.05.2025.
12. From the order of the learned Tribunal, it is seen that the petitioner
was absent on 23.08.2023, 28.09.2023, 31.10.2023, 29.11.2023 and
24.01.2024 without taking steps. It does appear that the petitioner was indeed
undergoing treatment for Schizophrenia and alcohol abuse and during that
period, he was also facing the proceeding, and therefore, it cannot be said that
he was wilfully or negligently abstaining from appearing before the learned
Tribunal for his cross-examination. He had, in fact, filed his written statement
and also adduced written evidence by way of affidavit which indicate that he
had made efforts to participate in the proceedings before the Tribunal.
13. In view of the above and taking into consideration the medical
condition of the petitioner, this Court is of the considered opinion that the
petitioner deserves an opportunity to face cross-examination so that the
evidence led by him can be given due weightage by the learned Tribunal while
deciding the reference before it.
14. In view of the above, we interfere with the ex parte opinion dated
09.05.2024, passed by the learned Member, Foreigners Tribunal 2nd, Morigaon in
Case No. F.T.(C) 1090/12 to the extent that it had proceeded on a presumption
that the absence of the petitioner would lead to nullifying his evidence.
15. Accordingly, the matter is now remanded back to the learned Tribunal
with a simultaneous direction to the petitioner to appear before the learned
Member, Foreigners Tribunal 2nd, Morigaon on or before 26.09.2025, without
requiring any further notice of appearance.
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16. On setting aside of the declaration of the petitioner as foreign national
as stated above, the Court is of the considered opinion that the petitioner,
namely, Atap Uddin @ Atabuddin be released on bail, subject to compliance of
the following conditions:
a. The family members of the petitioner shall appear before the
Superintendent of Police (Border), Morigaon and furnish bail bond of
Rs.20,000/- (Rupees twenty thousand only) with 2 (two) solvent
sureties of like amount to the satisfaction of the said authority.
b. Before releasing the petitioner on bail, the Superintendent of Police
(Border), Morigaon shall obtain the biometrics of the iris of both eyes,
the fingerprints of both hands and the photographs of the petitioner.
c. The said authority shall also obtain necessary information and
documentation as required under the Rules from the petitioner for
securing his presence.
d. Thereafter, steps shall be taken by the Superintendent of Police
(Border), Morigaon to have the petitioner released from the Transit
Camp within 3 (three) days from the date of receipt of certified copy of
this order.
e. Thereafter, the petitioner shall appear before the learned Tribunal
on or before 26.09.2025.
f. On failure of the petitioner to appear before the learned Tribunal
within the date fixed by this order, the learned Tribunal will be at liberty
to treat the petitioner as absent on call and pass such order as may be
deemed fit.
17. This writ petition stands allowed to the extent as indicated above.
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18. The original records received on requisition from the learned Tribunal
shall be expeditiously returned back along with a copy of this order to be made
a part of the record.
JUDGE JUDGE
Comparing Assistant
