Gauhati High Court
Page No.# 1/14 vs The Union Of India And 5 Ors on 10 March, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/14
GAHC010195902023
2025:GAU-AS:2586
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5112/2023
SAMIR DEY
S/O- LATE MANINDRA LAL DEY, R/O- VILL.- BALUGHAT ROAD, P.S.
NAHARKATIA, DIBRUGARH, DIST. DIBRUGARH, ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS.
REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, THE
MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, TILAK MARG, NEW
DELHI-110001.
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-6.
3:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY THE STATE ELECTION COMMISSIONER
ASSAM
HOUSEFED COMPLEX
DISPUR
GUWAHATI-06.
4:THE STATE CO - ORDINATOR OF NRC
ASSAM
BHANGAGARH
GUWAHATI-05.
5:THE DEPUTY COMMISSIONER
DIBRUGARH
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DIST. DIBRUGARH
ASSAM
6:THE SUPERINTENDENT OF POLICE (BORDER)
DIBRUGARH
DIST. DIBRUGARH
ASSA
Advocate for the Petitioner : MR S PARASHAR,
Advocate for the Respondent : DY.S.G.I., SC, ECI,GA, ASSAM,SC, F.T,SC, NRC
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 10.03.2025
(K.R. Surana, J)
Mr. S. Parashar, learned counsel for the petitioner is present.
Heard Mr. J. Payeng, learned Standing Counsel for F.T. matters; Mr. M. Islam,
learned counsel on behalf of Mr. A. Ali, learned Standing Counsel for ECI and Mr.
H.K. Hazarika, learned Government Advocate for the State.
2) Pursuant to order dated 08.09.2023 the records of the Tribunal
have been received. Perused the same.
3) On a query to the learned counsel for the petitioner as to
whether he had perused the Tribunal's record, he replied in the negative.
Therefore, as he would not be able to render assistance to the Court without
perusing the records, the Court has declined to hear the learned counsel for the
petitioner.
4) Records reveal that pursuant to the notice issued by the learned
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Tribunal, the petitioner had appeared before the Foreigners' Tribunal 2 nd,
Dibrugarh. However, he had not filed his written statement despite several
opportunities being granted and he had also remained absent on call on several
dates. Therefore, by an order dated 14.09.2021 bailable warrant of arrest was
issued. Accordingly, on the next date fixed i.e. 04.10.2021, the petitioner
appeared before the learned Tribunal and expressed his incapacity to engage a
learned lawyer of his choice due to financial constraints. Accordingly, the
learned Tribunal has provided him a Legal Aid Counsel through the District Legal
Services Authority, Dibrugarh. Thereafter, the petitioner filed his written
statement along with documents and on 22.03.2022, the petitioner was orally
examined, thereby recording his evidence.
5) The record reveals that on 24.03.2022, the petitioner was orally
examined on oath as DW-1. There appears to be no cross-examination by the
State. However, the petitioner had given answers to the queries put by the
learned Tribunal. Accordingly, as per order dated 24.03.2022, the evidence of
the petitioner was closed. By the said order the evidence of the prosecution was
also closed as the post of Assistant Government pleader was lying vacant.
6) As per the oral deposition of the petitioner as DW-1, the
petitioner claimed that his father Late Manindralal Dey was a railway employee
and he joined service in N.F. Railway in the year 1948 and he retired from
service in the year 1982 as Khalashi in the Engineering Department at
Naharkatiya. In this regard the petitioner has exhibited a certificate issued by
the Divisional Engineer, D.E.N. Office, Dibrugarh, bearing Serial No. 72 dated
8.8.84 as Ext.-1.
7) In order to demonstrate that the petitioner's father had cast his
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ballot in the year 1965 and 1971, the petitioner has exhibited the Electoral Roll
of the year 1970 of No. 121 Joypur Assembly/ Parliamentary Constituency as
Ext.-2. The petitioner claimed that he was born on 02.09.1963 at Naharkatiya
Railway Quarter in the district of Dibrugarh and he appeared in his HSLC
Examination conducted by the Board of Secondary Education, Assam in the year
1979 and he has exhibited the original Admit Card of HSLC, issued by the
Controller of Examination, Board of Secondary Education, Assam for the
examination held in the year 1979 as Ext.-3. The petitioner has exhibited his
HSLC Pass Certificate of the year 1979 as Ext.-4, and he has exhibited his
Naharkatiya College certificate of appearing in the Pre-Degree (Com) Final
Examination, 1983, issued by the Principal, Naharkatiya College on 22.09.1983
as Ext.-5.
8) Records further reveal that the hearing of the argument was
concluded as per order dated 11.07.2022 and the next date of the case was
fixed on 04.08.2022 for rendition of opinion. However, as per order dated
04.08.2022, the learned Tribunal deemed it appropriate to call for the
authenticity verification report in respect of Ext. Nos. 1 to 5 and accordingly,
notices were issued to the issuing authorities to verify the authenticity of the
contents of those documents. As per order dated 16.09.2022, the Election
Officer, Dibrugarh was directed that the document exhibited as Ext.-2 be
authenticated. As per order dated 02.03.2023, it was reported to the learned
Tribunal that the process server, after enquiring at the Tinsukia DRM(P) Office,
learnt that there is no record available in the name of the petitioner's father. The
process server was informed that the relevant records are available with the
Dibrugarh DRM(P) Office. Accordingly, the notice was issued to the said
authorities to verify the authenticity of the Ext. No. 1. A direction was issued to
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Superintendent of Police (Border), Dibrugarh, requiring him to get the
authenticity verification report of the documents exhibited by the petitioner. As
per order dated 27.04.2023, report regarding Ext.-5 was received,
authenticating the said document. In respect of Ext.-1 another report was
received from the Superintendent of Police (Border), Dibrugarh, confirming that
the records were sent back from the Divisional Railway Manager (P), Dibrugarh
Office to Tinsukia and accordingly, a fresh notice was issued to the Divisional
Railway Manager (P), Tinsukia. As per order dated 01.06.2023, the Divisional
Personnel Officer, on behalf of the Divisional Railway Manager (P), N.F. Railway,
Tinsukia had confirmed the contents of Ext.-1 as verified and found authentic.
9) In paragraph 12 of the impugned opinion dated 13.07.2023, the
report regarding authenticity and verification of Ext. Nos. 1, 3, 4 & 5 has been
recorded. However, the said learned Tribunal had rejected Ext.-2 which is the
certified copy of the voter list of 1970 on the ground that in his deposition, the
petitioner had not deposed about his father having cast ballot in the year 1970
and he had stated that his father had cast ballot in the year 1965 and 1971.
Accordingly, it was held that Ext-2 did not establish the linkage of the petitioner
with the projected father and Ext.-2 was rejected.
10) The order-sheet of the Tribunal's record does not show that any
order was passed by the learned Tribunal to (i) recall the order dated
24.03.2022; and (ii) to expunge the oral evidence of the petitioner as DW-1 that
was recorded on 24.03.2022.
11) It is reiterated that the oral evidence of the petitioner was
recorded on 24.03.2022. Thereafter, by order dated 11.07.2022, the matter was
fixed on 04.08.2022 for opinion. Thereafter, by order dated 04.08.2022,
02.11.2022, 06.12.2022, 18.01.2023, 02.03.2023 and 27.04.2023, the learned
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Tribunal had called for authenticity verification report from the concerned/
issuing authorities regarding Ext.1 to Ext.5. The concerned authorities had
submitted their respective authenticity verification reports as follows, viz., (i)
receipt of report on Ext.2 is mentioned in order dated 16.09.2022; (ii) receipt of
report on Ext.3 and Ext.4 is mentioned in order dated 02.11.2022; (iii) receipt of
report on Ext.5 is mentioned in order dated 27.04.2023; (iv) receipt of report on
Ext.1 is mentioned in the order dated 01.06.2023. By the said five reports, the
respective issuing authorities have admitted the genuineness thereof. The
learned Tribunal had not passed any order, directing the petitioner to prove any
further document or to give further evidence.
12) As the evidence of DW-1 in the present proceedings was not
conducted under Bharatiya Sakshya Adhiniyam, 2023, it would be appropriate to
quote hereinbelow the provisions of Section 165 of the Evidence Act, 1872,
which is as follows:-
165. Judge's power to put questions or order production.- The Judge may, in order
to discover or to obtain proper proof of relevant facts, ask any question he pleases,
in any form, at any time, of any witness, or of the parties about any fact relevant
or irrelevant; and may order the production of any document or thing; and neither
the parties not their agents shall be entitled to make any objection to any such
question or order, nor, without the leave of the court, to cross examine any witness
upon any answer given in reply to any such question:
If the Judgment must be based upon facts declared by this Act to be relevant,
and duly proved:
Provided also that this section shall not authorize any Judge to compel any
witness to answer any question or to produce any document which such witness
would be entitled to refuse to answer or produce under sections 121 to 131, both
inclusive, if the questions were asked or the documents were called for by the
adverse party; nor shall the Judge ask any question which it would be improper for
any other person to ask under section 148 or 149; nor shall he dispense with
primary evidence of any document, except in the cases hereinbefore excepted .
13) From the hereinbefore quoted extracted provision of Section 165 of the
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Evidence Act, 1872, the petitioner was not entitled to make any objection when
the learned Tribunal had passed orders to call for authenticity verification
reports in respect of Ext.1 to Ext.5, although order for the such report was
passed after the petitioner's oral evidence was recorded on 24.03.2022.
Moreover, without leave of the learned Tribunal, it was impermissible for the
petitioner to seek cross-examination of the authorities who had submitted the
verification reports.
14) It would now be apposite to discuss the reasons assigned by the
learned Tribunal to discard the exhibited documents and this Court's analysis of
those exhibits:
a. Ext.1 is the certificate issued by the Divisional Engineer, D.E.N. Office,
Dibrugarh. Though queries were put to the petitioner by the learned
Tribunal, no questions were put on the admissibility of the said exhibit.
As per the Tribunals records, the Ext.1 was proved in original and a
compared copy of the original is found to be admitted in evidence by
the learned Member as the learned Member had put its signature on
the said exhibit. Thus, the said document was admitted into evidence
without any objection whatsoever as regards the manner and mode of
proof. Nonetheless, the learned Tribunal after recording the contents of
the verification report in connection with Ext.1, rejected the said
documentary evidence on the ground that the petitioner had not
adduced the evidence of the authorized representative of the issuing
authority. The learned Tribunal has recorded as follows to hold the
document to be not proved- "Thus the aforesaid exhibit i.e. Exhibit
no.1 although deemed to be admitted is not proved ." In this regard the
learned Tribunal had placed reliance on the decision of this Court in the
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case of Smt. Anima Das Vs. Union of India and Ors., (2019) 5 GLR
465: 2019 (3) GLT 122: (2019) 0 Supreme (Gau) 114.
In the considered opinion of the Court, after the learned
Tribunal, in its own motion, had called for a verification report through
the Officer-in-Charge, Tinsukia Police Station and later on through the
Superintendent of Police (Border), Dibrugarh, on receipt of authenticity
verification report on Ext.1, the deficiency, if any, in the evidence of the
petitioner as DW-1 was filled up by the learned Tribunal by suo motu
calling for authenticity verification report from the concerned
authorities. The said authenticity verification report regarding Ext.1
cannot be wished away by the learned Tribunal. Having received and
accepted the said report it is not open to the learned Tribunal to
question as to how and on what basis the entries in the said Ext.1 was
entered. Thus, the rejection of the Ext.1 is found and held to be
perverse.
b. Ext.2 is the certified copy of the extract from electoral roll of 121
Joypur Assembly/Parliamentary Constituency in the State of Assam for
the year 1970. In respect of said Ext.2, authenticity verification report
was received vide letter dated 10.01.2022, issued by the Election
Officer, Dibrugarh, declaring the information to be authentic. The
Tribunal had not called for such report on Ext.2 after doubting that the
document proved as Ext.2, was not a certified copy. Before calling for
the authenticity verification report, the learned Tribunal did not ask any
question to the petitioner as DW-1 regarding the manner and mode of
proof of Ext.2. Moreover, the learned Member of the concerned
Foreigners Tribunal had put its signature on the compared- with-
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original copy of Ext.2. However, the said exhibit was rejected on the
ground that though Ext.2 contained the name of Munindra Lal Dey,
similarity in the name cannot be said to be of a person concerned
unless most specific details are laid down negating all possibility of
linking it to some other person. Moreover, the said exhibit was also
discarded because in his evidence, the petitioner did not state that his
father had cast any ballot in the year 1970 and because the petitioner
had stated that his father had cast his ballot since the year 1965, 1971
and since then. In this regard the Tribunal has not given finding that a
certified copy of the electoral roll of 1970 becomes a questioned
document and the evidentiary value of Ext.2 was lost merely because
the petitioner did not state that his father had cast his ballot in 1970.
As per Ext.3, the age of petitioner was 15 years 5 months and 29 days
as on 01.03.1979, therefore, in all probability, the petitioner would
have been born on 02.09.1963 and it is very unlikely that the petitioner
would have personal knowledge that his father had cast his ballot in
the year 1970. Moreover, after the learned Tribunal had called for
authenticity verification report, which was received in the affirmative
from the Election Officer, Dibrugarh, the Court is of the considered
opinion that deficiencies, if any, in the mode and manner of proof of
Ext.2 has been cured by the learned Tribunal after receipt of the
authenticity verification report in favour of the petitioner. Thus, the
rejection of the Ext.2 as not proved is found and held to be perverse.
c. Ext.3 is the admit card of the petitioner in respect of Board of
Secondary Education, Assam, for the HSLC Examination scheduled to
commence from 20.04.1979. On receipt of the authenticity verification
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report from the issuing authority, the learned Tribunal has held that it
can be perceived that it is a genuine document. However, the said
exhibited document was discarded as the petitioner had not adduced
the evidence of reasonable witnesses to prove the said exhibit. In this
regard, it may be mentioned that the learned Tribunal had not put any
query to the petitioner on Ext.3 to question its manner and mode of
proof. Therefore, the Court is of the considered opinion that
deficiencies, if any, in the mode and manner of proof of Ext.3 has been
cured by the learned Tribunal after receipt of the authenticity
verification report in favour of the petitioner. Thus, the rejection of the
Ext.3 as not proved is found and held to be perverse.
d. Ext.4 is the Pass certificate issued by the Board of Secondary
Education, Assam, for the HSLC Examination for 1979. On receipt of
the authenticity verification report from the issuing authority, the
learned Tribunal has held that it can be perceived that it is a genuine
document. However, the said exhibited document was discarded as the
petitioner had not adduced the evidence of reasonable witnesses to
prove the said exhibit. In this regard, it may be mentioned that the
learned Tribunal had not put any query to the petitioner on Ext.4 to
question its manner and mode of proof. Therefore, the Court is of the
considered opinion that deficiencies, if any, in the mode and manner of
proof of Ext.4 has been cured by the learned Tribunal after receipt of
the authenticity verification report in favour of the petitioner. Thus, the
rejection of Ext.4 as not proved is found and held to be perverse.
e. Ext.5 is the Pre-Degree (Com) Final Pass Certificate dated 22.09.1983,
issued by the principal, Naharkatiya College. On receipt of the
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authenticity verification report from the issuing authority, the learned
Tribunal has held that it can be perceived that it is a genuine
document. However, the said exhibited document was discarded as the
petitioner had not adduced the evidence of reasonable witnesses to
prove the said exhibit. In this regard, it may be mentioned that the
learned Tribunal had not put any query to the petitioner on Ext.5 to
question its manner and mode of proof. Therefore, the Court is of the
considered opinion that deficiencies, if any, in the mode and manner of
proof of Ext.5 has been cured by the learned Tribunal after receipt of
the authenticity verification report in favour of the petitioner. Thus, the
rejection of Ext.5 as not proved is found and held to be perverse.
15) Thus, through Ext.1, the petitioner has successfully proved that
one Manindra Lal Dey had served in NF Railway from 10.09.1948 to 28.02.1982
and he retired as Khalasi in NF Railway. By Ext.2, the petitioner has proved that
the name of the said Manindra Lal Dey was enlisted in the electoral roll of 1970
of 121- Joypur Assembly/ Parliamentary Constituency in the State of Assam. By
Ext.3, Ext.4 and Ext.5, the petitioner has successfully proved that his father was
Manindra Lal Dey. The said exhibited documents were duly authenticated by
their respective issuing authority.
16) The State did not give any rebuttal evidence to disprove Ext.1 to
Ext.5. The Ext.2, Ext.3, Ext.4 and Ext.5 were issued by the instrumentalities of
the State. The Ext.1 was issued by the NF Railway, which is a Central
Government instrumentality. Thus, the Court is constrained to hold that the said
exhibits were discarded by the learned Tribunal in a casual and cavalier manner.
17) The Court takes note of the fact that the petitioner, due to his
financial constraints, could not engage his counsel and therefore, he had to be
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granted legal aid by providing him an advocate from the District Legal Services
Authority, Dibrugarh. Nonetheless, the oral evidence of the petitioner as DW-1
could not be demolished during his examination by the learned Tribunal. It is
reiterated at the cost of repetition that the learned Tribunal had not expressed
its doubt on any exhibited document as regards is genuineness, or regarding its
mode and manner of proof. All the said exhibits were allowed to be proved in
original and the learned Tribunal had signed all the said five exhibits. While
admitting the said exhibits in evidence, the learned Tribunal had not recorded its
doubts on those exhibits. Therefore, the said exhibits could not have been
rejected on the ground that the petitioner had not adduced the evidence of
reasonable witnesses to prove the said exhibits.
18) The term "reasonable witness" is a vague term. Who could be a
reasonable witness is not defined in the Evidence Act, 1872. The learned
standing counsel for the FT matters also could not bring to the Court's notice
any judgment where who is a "reasonable witness" has been explained and he
also could not place any such definition from any regular or legal dictionary.
Therefore, rejection of the said exhibits on such a flimsy ground, after the
evidence of the petitioner as DW-1 had been recorded by his oral examined by
the learned Tribunal, which could not be dislodged or demolished, is held to be
perverse, because the rejection of the said exhibits is not in accordance with law
relating to evidence and mode and manner of proving documentary evidence.
19) Therefore, the Court is of the considered opinion that the
rejection of the Exhibit nos. 1 to 5 is not found sustainable on facts and in law
and is held to be perverse. The learned Tribunal had called for the authenticity
verification reports, which confirm that the exhibited documents and entries
contained therein are genuine. Resultantly, the learned Tribunal has also
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accepted that the exhibited documents and entries contained therein are
genuine. Therefore, the Court is of the unhesitant opinion that the impugned
opinion dated 13.07.2023, passed by the learned Member, Foreigners Tribunal,
Dibrugarh 2nd, Dibrugarh in F.T. Case No. 1030/2006 [arising out of Reference
Memo No. BO/DBR/06/993 dated 14.08.2006, issued by the Superintendent of
Police (Border), Dibrugarh], is not sustainable on facts and in law. Therefore,
the said opinion is hereby set aside.
20) The matter is remanded back to the said learned Tribunal to take
note of this order, by which the rejection of the evidentiary value of Ext.1 to
Ext.5 as unsustainable on facts and in law and thus, perverse, and to pass a
fresh opinion strictly in accordance with law.
21) In the event, upon remand, the learned Tribunal desires to hear
the petitioner, or in the event the petitioner applies for legal aid, the learned
Tribunal shall ensure that the petitioner is provided assistance of a competent
legal aid counsel through District Legal Services Authority, Dibrugarh.
22) The petitioner, who is represented by his learned counsel before
this Court, is directed to appear before the said learned Tribunal within
23.04.2025, and by producing a certified copy of this order, seek further
instructions from the said learned Tribunal.
23) In order to ensure that the petitioner appears before the learned
Tribunal without fail, it is provided that in the event the petitioner does not
appear before the said learned Tribunal within the time allowed, it would be
open to the said learned Tribunal to treat the petitioner as absent on call, and
decide the matter in accordance with law.
24) The bail granted to the petitioner pursuant to order dated
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08.09.2023, shall stand extended till the fresh opinion is passed by the learned
Tribunal.
25) Let the Tribunal's record be expeditiously sent back along with a
downloaded copy of this judgment and order, to be made a part of the record.
JUDGE JUDGE
Comparing Assistant
