Gauhati High Court
Page No.# 1/19 vs The Union Of India And 5 Ors on 26 May, 2025
Author: M. Nandi
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/19
GAHC010106022020
2025:GAU-AS:6595
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3330/2020
RAFIKA BIBI @ RAFIKA KHATUN
D/O- LT. SAFIAR ALI @ SOPIOR RAHMAN @ SAFIOR RAHMAN @ SAFIYAR
ALI, W/O- KARIM BAKSHA SK., VILL- UTTAR KACHAKHANA, P.O.
PAGLAHAT, P.S. TAMARHAT, DIST.- DHUBRI, ASSAM, PIN- 783334
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, NEW DELHI- 110001
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY-6
3:THE DY. COMMISSIONER
DHUBRI
PIN- 783301
4:THE ELECTION COMMISSION OF INDIA
NEW DELHI- 110001
5:THE STATE COORDINATOR
NATIONAL REGISTER OF CITIZENS
ASSAM
GHY-05
6:THE SUPERINTENDENT OF POLICE (B)
DHUBRI
DIST.- DHUBRI
Page No.# 2/19
PIN- 78330
Advocate for the Petitioner : MR H R A CHOUDHURY, MR F U BARBHUIYA,MS S DAS
Advocate for the Respondent : ASSTT.S.G.I., SC, ELECTION COMMISSION.,SC, NRC,SC, F.T
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE MALASRI NANDI
JUDGMENT & ORDER (CAV)
Date : 26-05-2025
(M. Nandi, J)
Heard Mr. F.U. Barbhuiya, learned counsel for the petitioner. Also heard
Ms. J. Sarma, learned CGC; Mr. G. Sarma, learned Standing Counsel for the FT
matters and NRC; Mr. A.I. Ali, learned Standing Counsel for the ECI; and Mr. P.
Sarmah, learned Additional Senior Government Advocate for the State
respondent.
2. The petitioner has preferred an application under Article 226 of the
Constitution of India challenging the impugned opinion/order dated 06.03.2020,
passed by the Foreigners Tribunal 10 th, Dhubri in F.T. Case
No.10/TMH/1211/2018 arising out of "D" Voter Case No.43/D/07 declaring the
petitioner to be a foreigner of post 25.03.1971.
3. The case of the petitioner in brief is that the petitioner is a citizen of India
by birth and is a permanent resident of village - Uttar Kachakhana under
Tamarhat P.S in the district of Dhubri, Assam. The petitioner was born and
brought up at village - Belguri Part I under Agomoni Police station in the district
of Dhubri. The name of the petitioner's grandfather is late Ainulla @ Aynullah
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Munsi. The father's name of late Ainulla Munsi is late Gamiruddin. Late
Gamiruddin got two sons Ainulla Munsi and Farid Uddin Sarkar. The petitioner's
grandfather had two wives - Shabijan Bibi and late Moina Bibi @ Moina Bewa.
The name of the petitioner's father is late Safiar Ali @ Sopior Rahman @ Safior
Rahman @ Safiyar Ali who expired on 31.05.2019 and mother's name is Jarina
Bibi who is alive and they are the citizens of India by birth.
4. The petitioner got married to one Karim Baksh Sk, S/o late Sona Uddin Sk
of Village - Uttar Kachakhana about 20 years back and both the petitioner and
her husband used to work in the brick industry in different places of Assam to
maintain their livelihood.
5. Further case of the petitioner is that the name of the petitioner's
grandfather appeared in the voter list of 1966 along with her step grandmother
of Village- Belguri Part I. The name of the petitioner's father along with her step
grandmother appeared in the voter list of 1977 from the same village. The
name of the petitioner's parents appeared in the voter list of 1997 and the name
of petitioner's parents along with petitioner's brother also appeared in the voter
list of 2005 under same LAC i.e. 25 Golakganj LAC and their names also
appeared in the subsequent voter lists. The name of the petitioner appeared in
the voters' lists of 2007, 2010 and 2015 along with her husband and mother-in-
law under Kumarganj LAC of village - Uttar Kachakhana. However, in the voter
list of 2015 against the name of the petitioner mark "D" has been inserted.
6. On receipt of the notice, the petitioner appeared before the Tribunal and
submitted written statement with documents. The petitioner examined herself
as DW-1 and her uncle Mohi Uddin Ahmed @ Mohiruddin Sk as DW-2. School
Headmistress of Belguri L.P School examined as DW-3. The learned Tribunal
after hearing the parties vide order dated 06.03.2020 declared the petitioner as
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foreigner of post 25.03.1971, who entered into India without any valid
documents.
7. It was urged by the learned counsel for the petitioner that apart from voter
lists of her parents and grandparents, the petitioner also submitted some other
documents to prove her citizenship before the Tribunal i.e. school certificate
issued by the Headmistress of Belguri L.P School wherein the petitioner studied
up to class II.
8. It is further submitted that the petitioner's grandfather had landed
properties at village - Belguri Part I vide Khatian No.179 which was issued on
30.03.1962. The petitioner's father inherited the said property and as such, the
concerned authority issued Periodic Khiraj Patta vide Patta No.219.
9. Learned counsel for the petitioner further contended that the Secretary
Sindurai Gaon Panchayat, Dhubri issued a certificate certifying that the
petitioner is a daughter of Safiyar Ali and she got married to one Karim Baksa
Sheikh of village - Uttar Kachakhana of Dhubri district.
10. According to learned counsel for the petitioner, after her marriage, the
name of the petitioner appeared in the voter list of 2005 along with her
husband and due to appearance of her name in the voter list with her husband,
the Electoral Registration Officer (ERO), Golakganj LAC having doubt about the
citizenship of the petitioner directed the concerned authority to verify it.
11. The verifying officer while trying to verify the name of the petitioner, he
did not find the petitioner in the address at the relevant time as the petitioner
was working in a brick industry at Rangia, Kamrup along with her husband.
When the verifying officer having not found the petitioner as such in the format
for verification report stated that " not found as they are working in a brick field
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as reported by the neighbor of that locality". According to learned counsel for the
petitioner, without filling up the respective column of the format for verification
report, forwarded the same to the ERO, Golakganj LAC and accordingly the ERO
forwarded the verification report to the S.P, Dhubri to take step for deciding the
question of citizenship of the petitioner.
12. It is further submitted that the Foreigners' Tribunal ought to have verified
the report about suspicion of the petitioner as illegal migrant but the learned
Tribunal instead of doing the same, issued notice to the petitioner which is
illegal, arbitrary, unjust and improper. In such type of case, the Tribunal should
have dismissed the reference at the threshold as has been held in the case of
Moslem Mondal reported in (2013) 1 GLT 809. Therefore, the impugned
proceeding and the order passed by the Foreigners' Tribunal is illegal and the
same is liable to be set aside.
13. The further submission of the learned counsel for the petitioner is that
there has to be fair and proper investigation by the Investigating Agency before
making a reference to the Tribunal. The reference made by the referral authority
also cannot be mechanical. The referral authority has to apply his mind on the
materials collected by the I.O during investigation and thereafter, make
reference to the Tribunal that there are grounds for making such reference. In
the instant case, the referral authority straight away forwarded the reference
without verifying the grounds of existence that the petitioner is a foreigner and
the Tribunal also without verifying the records issued notice and subsequently
declared the petitioner as a foreigner by violating the provisions of Article 21 of
the Constitution of India. Hence, the impugned proceeding as well as the
impugned opinion of the Tribunal is unsustainable in law.
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14. It is also contended that the enquiry report does not state which of the
stream the petitioner belongs either before 01.01.1966 or between 01.01.1966
to 24.03.1971 or after 25.03.1971. But the learned Tribunal while issuing notice
specifying that the petitioner has entered into Assam after 24.03.1971, which is
not acceptable and exceeded its jurisdiction and as such, the impugned order is
liable to be set aside.
15. It is also the submission of learned counsel for the petitioner that on
receipt of the notice, the petitioner categorically stated in her written statement
as well as evidence both oral and documentary that she is the daughter of
Safiar Ali @ Sopior Rahman and Jarina Bibi and granddaughter of Ainullah Munsi
having birth place at village - Belguri Part I under Agomoni PS in the district of
Dhubri and got married with Karim Baksh Sk of Village - Uttar Kachakhana
under Tamarhat P.S. However, the state authority neither denied the above facts
of evidence of the petitioner nor give evidence in rebuttal which amounts to
admission that the petitioner is a citizen of India by birth but the learned
Tribunal without applying judicial mind illegally and arbitrarily declared the
petitioner as an illegal migrant which is not sustainable in law.
16. The last limb of argument of learned counsel for the petitioner is that the
learned Tribunal without supplying the copy of the main grounds of the case
issued the notice to the petitioner alleging that the petitioner is a foreigner. The
Tribunal is required to issue notice together with a copy of main grounds alleged
to be foreigner of concerned person which is mandatory as per clause 3 of the
Foreigners (Tribunals) Order, 1964 and in terms of paragraph 98 in Moslem
Mondal case (supra). Hence, the impugned opinion of the learned Tribunal is
perverse and the same is required to be modified.
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17. In support of his submission, learned counsel for the petitioner has relied
on the following case laws -
a) (2024) INSC 511 (Rahim Ali @ Abdur Rahim Vs. State
of Assam)
b) (2013) 1 GLT 941 (Abdul Khalique Vs. Union of India
and Ors.)
c) (2020) 1 GLT 330 ( Motior Rahman Vs. Union of India
and Ors.)
d) (2022) O Supreme (GAU) 1329 ( Karim Ali Vs. Union of
India and Ors.)
e) (2021) 3 GLT 12 (Sona Kha @ Sona Khan Vs. Union of
India and Ors.)
18. By referring the judgment of WPC 775/2024 (Sukjan Nessa Vs. Union of
India and Ors.), Mr. G. Sharma, learned standing counsel, FT matters has
submitted that a proceeding under the Foreigners Act, 1946 and the Foreigners
(Tribunal) Order, 1964 relates to determination as to whether the proceedee is a
foreigner or not. Therefore, the relevant facts are especially within the
knowledge of the petitioner and accordingly, the burden of proving citizenship
rests absolutely upon the proceedee, notwithstanding anything contained in the
Evidence Act, 1872 and this is mandated u/s 9 of the aforesaid Act, 1946.
However, in the instant case, the petitioner has failed to discharge her burden.
It is also submitted that rebuttal evidence is not mandatory in every case and
would be given only, if necessary. It is also contended that the evidence of the
proceedee has to be cogent, relevant which inspires confidence and acceptable
and only thereafter, the question of adducing rebuttal evidence may come in.
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19. Mr. Sarma has also submitted that merely because the evidence adduced
has not been rebutted will not give any sanctity to an inadmissible evidence
relied upon by the petitioner. In this regard, Mr. Sarma has relied on the
decision of this Court vide State of Assam and Anr. Vs. Ohab Ali (WPC
No.2641/2017). On this point of rebuttal evidence, Mr. Sarma has also referred
to the decision of this Court in Rukia Begum Vs. Union of India and Ors. vide WPC
No.6344/2016).
20. By relying on the judgment of Bijay Das Vs. Union of India and Ors.
reported in (2018) 3 GLT 118, Mr. Sarma has pointed out that mere filing of
written statement and the oral testimony are not sufficient to prove the
citizenship of a person, as necessary documentary evidence is required to be
proved in support of the oral evidence. In the present case, apart from oral
evidence, no other documentary evidence has been relied on or proved to show
that the present petitioner is the daughter of late Safiar Ali.
21. Mr. Sarma has also submitted that the document has to be appreciated as
a whole which has been clearly discussed in the case of Basiron Nessa Vs. Union
of India and Ors. vide (2018) 1 GLT 372.
22. After hearing the learned counsel for the parties and on perusal of the
records of the Tribunal, it reveals that the petitioner has claimed that she is the
daughter of Safiar Ali @ Sopior Rahman @ Safior Rahman @ Safiyar Ali and
Jarina Bibi. To prove her lineage with her projected parents, the petitioner has
produced voter list of 1977 vide Ext.B, which reflects the name of Sopior
Rahman, S/o Ainullha, aged about 23 years.
23. The subsequent documents is 1997 voter list which shows the period of
time in between 20 years. No other documents have been produced by the
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petitioner that during such period of 20 years, the petitioner along with her
parents have been residing in any parts of Assam.
24. In 1997 voter list, the name of Safior Rahman, S/o Ainullah Munshi and
Jarina Bibi, W/o Safior Rahman have been appeared. As per statement of DW-2,
Safior Rahman died on 31.05.2019. In between 22 years i.e. from 1997-2019,
the petitioner has failed to show her existence along with her parents in Indian
soil by producing any document or adducing any evidence. DW-2 though
claimed to be the uncle of the petitioner but the petitioner has not introduced
him in her written statement. It is not clarified why mother of the petitioner
though alive has not been stepped into the witness box.
25. Regarding enquiry report, it is an admitted fact that the petitioner was not
found in her address i.e. village - North Kachakhana, P.O - Paglahat as she was
working in a brick field along with her husband Karim Baksha Sk as reported by
the neighbor of the locality. Thereafter, Superintendent of Police, Dhubri referred
the matter to the Tribunal with a report that the petitioner, W/o Karim Baksha
Sk of village - North Kachakhana, P.S- Golakganj, District - Dhubri which was
received from ERO (Electoral Registration Officer) of 25 Golakganj LAC deciding
her nationality status under the Foreigners Act, 1946 and the rules made
thereunder.
26. As per report of ERO, there was reasonable doubt whether the petitioner
is a citizen of India or not. Hence, this case was forwarded to the Tribunal for
adjudication. However, it is also reflected from the forwarding report to learned
Member, Foreigners Tribunal, Dhubri that the case is still pending due to non-
cooperation of the "D" voter concerned.
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27. It may be noted that though the opinion of the Enquiry Officer may not be
binding to the Referral Authority, if the Referral Authority wishes to take a
contrary view to the finding of the Enquiry Authority, the Referral Authority must
indicate the reasons with supporting materials to overrule such a finding of the
Enquiry Authority and take the contrary view that the proceedee is not an
Indian but an illegal migrant.
28. A reference of the Tribunal is to be made under Order 2 of the Foreigners
(Tribunals) Order, 1964. The Tribunal is to give its opinion when a reference is
made whether the person is or is not a foreigner within the meaning of
Foreigners Act, 1964. Thus, it would imply that unless there is a dispute or
suspicion or doubt about the nationality of a person, the question of referring as
to whether he/she is or is not a foreigner to a Foreigners Tribunal does not
arise. The reference can be made only when it is the case of the Enquiring
Authority or the State that a person is suspected to be an illegal immigrant
which is denied by the concerned person and thus, there is a doubt or dispute
about the nationality of the person. However, in the present case, no doubt
about the nationality of the petitioner has been raised on conclusion of the
enquiry.
29. In this regard, we may refer to the case of Moslem Mondal (Supra), as
regards the importance of fair trial and fair investigation which apply to a
proceeding relating to a doubtful/alleged illegal migrant, where it was held as
follows:
"93. The right to get a fair trial is a basic fundamental and
human right. Any procedure which comes in the way of a
party in getting a fair trial would be violative of Article 14
of the Constitution. Fair trial also includes a fair
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investigation. The concept of fair investigation and fair trial
assumes much importance in the matter of detection and
deportation of foreigners under the provisions of
the Foreigners Act, 1964 Order as well as the 2012
Amendment Order, because of the nature of proceeding as
well as the burden cast on the person who is suspected to
be a foreigner to prove that he is not a foreigner, by
Section 9 of the 1946 Act. The citizenship right is to be
jealously protected. The right under Article 21 of the
Constitution is available to all persons to protect his life
and personal liberty and hence even the right of a non-
citizen to have fair investigation, trial as well fair procedure
to be adopted by the Tribunal is guaranteed by Article 21
of the Constitution.
94. The Apex Court in Dwarka Prasad Agarwal (supra) has
opined that the right to get a fair trial is a basic
fundamental/human right and denial of fair trial violates
Article 14 of the Constitution. In Zahira Habibulla H. Sheikh
(supra), commonly known as "Best Bakery Case", the Apex
Court giving emphasis on the principle of fair trial, has
opined that the just application of its principles in
substance is to find out the truth and prevent miscarriage
of justice. It has also been opined that the concept of fair
trial entails the familiar triangulation of interests of the
accused, the victim and society, and it is the community
that acts through the State and prosecuting agencies. It
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has also been opined that a trial which is primarily aimed
at ascertaining the truth has to be fair to all concerned. It
will not be correct to say that it is only the accused who
must be fairly dealt with. That would be turning a Nelson's
eye to the needs of society at large and the victims or their
family members and relatives. Public interest in the proper
administration of justice must be given as much
importance, if not more, as the interests of the individual
accused. While dealing with the role of the Court, the Apex
Court observed that the courts have a vital role to play. Its
role is to discover, vindicate and establish the truth and
hence the trial should be a search for the truth and not
about over technicalities. The Apex Court further observed
that the Presiding Judge must cease to be a spectator and
a mere recording machine and he must have active
interest and elicit all relevant materials necessary for
reaching the correct conclusion to find out the truth and
administer justice with fairness and impartiality both to the
parties and to the community.
95. In Zahira Habibulla H. Sheikh (5) (supra), the Apex
Court opined that every State has a constitutional
obligation and duty to protect the life and liberty of its
citizens, which is the fundamental requirement for
observance of the rule of law. There cannot be any
deviation from this requirement because of any extraneous
factors like caste, creed, religion, political belief or
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ideology. The Apex Court further opined that the fair trial
consists not only in technical observance of frame and
forms of law, but also in recognition and just application of
its principles in substance, to find out the truth and
prevent miscarriage of justice. In Samadhan Dhudaka Koli
(supra), the Apex Court has reiterated its view that the
prosecution must also be fair to the accused. Fairness in
investigation as also trial is a human right of an accused.
In Himanshu Singh Sabharwal (supra), the Apex Court
reiterating the earlier view, has further opined that the fair
trial is inherent in the concept of due process of law and
the fair hearing requires an opportunity to preserve the
process. In Nirmal Singh Kahlon Vs. State of Punjab and ors.
reported in AIR 2009 SC 984, the Apex Court has reiterated
that fair investigation and fair trial are concomitant to
observance of fundamental right of an accused
under Article 21 of the Constitution and hence though the
State has a larger obligation i.e. to maintain law and order,
public order and preservation of peace and harmony in the
society, a victim of a crime, thus, is equally entitled to a
fair investigation. In National Human Rights Commission
(supra) commonly known as Godhra Riot Case, the Apex
Court has reiterated the requirement of having fair
investigation and the trial.
96. One of the contentions of the proceedees is that
though the referral authority is required to make the
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reference to the Tribunal after making a fair investigation,
no such proper and fair investigation is conducted and the
police at their own whims and caprice gives a report, in
some cases even without visiting the place where such
proceedee resides and also without giving any opportunity
to produce the relevant documents to substantiate that the
proceedee is not a foreigner, and such report is accepted
by the referral authority and accordingly the reference is
made to the Tribunal, on the basis of which the reference
is registered against such person.
97. Fair investigation and fair trial being the basic
fundamental/human right of a person, which are
concomitant to preservation of the fundamental right of a
person under Article 21 of the Constitution, there has to be
a fair and proper investigation by the investigating agency
before making a reference to the Tribunal. In such
investigation the attempt has to be made to find out the
person against whom the investigation is made, so that
the person concerned is given the opportunity to
demonstrate at that stage itself that he is not a foreigner.
In case the person concerned could not be found out in
the village where he is reported to reside or in the place
where he ordinarily resides or works for gain, the
investigating agency has to record the same in presence of
the village elder or the village headman or any respectable
person of the locality, which in turn would ensure visit of
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the investigating officer to the place where such person
ordinarily resides or reported to reside or works for gain
and making of an effort to find him out for the purpose of
giving him the opportunity to produce the documents etc.,
if any, to demonstrate that he is not a foreigner. The
investigating officer, as far as practicable, shall also obtain
the signature or thumb impression of the person against
whom such investigation is initiated, after recording his
statement, if any, provided he makes himself available for
that purpose. There are also instances where the person
against whom such investigation is initiated, changes his
place of residence, may be in search of livelihood or may
be to avoid detection. To ensure proper investigation and
also having regard to integrity and sovereignty of the
nation, once investigation relating to the nationality status
of a person starts he must inform the investigating agency
in writing about the change of residence, if any, thereafter.
In case such person has failed to intimate the investigating
agency in writing the subsequent change of his place of
residence, the investigating agency has to mention the
same in his report with his opinion relating to the status of
such person on the basis of materials collected at the place
where he earlier resided. That will ensure a fair
investigation and submission of a proper report on such
investigation to the authority. Needless to say, such
investigation need not be a detailed or an exhaustive one
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keeping in view the nature of the proceeding before the
Tribunal and the object sought to be achieved. Hence it
need not be equator with an investigation conducted in
criminal cases."
30. The Full Bench also emphasized that the reference cannot be made in a
mechanical manner. In para-98 of Moselm Mondal (Supra), it was held as follows
-
"98. The reference by the referral authority also cannot be
mechanical. The referral authority has to apply his mind
on the materials collected by the investigating officer
during investigation and make the reference on being
satisfied that there are grounds for making such reference.
The referral authority, however, need not pass a detailed
order recording his satisfaction. An order agreeing with the
investigation would suffice. The referral authority also,
while making the reference, shall produce all the materials
collected during investigation before the Tribunal, as the
Tribunal is required prima facie to satisfy itself about the
existence of the main grounds before issuing the notice to
the proceedee.
99. Fair trial and reasonable opportunity required to be
afforded to a proceedee also includes supply of the
certified copy of any public document, including the copy
of the relevant electoral rolls which has also been
recognized by sub-section (2) of Section 6A of the 1955
Act as relevant document for the purpose of establishment
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of the citizenship, to the proceedee, whenever asked for,
which may be necessary for the purpose of demonstrating
by the proceedee that he is not a foreigner. Certified
copies of such documents, if applied for, must be supplied
promptly, otherwise, it may result in delay in disposal of
the reference proceeding, as the proceedee in that case
may ask for time, till such documents are made available
to him. The same may also amount to denial of reasonable
opportunity to the proceedee, as he may not be able to
discharge his burden of proof that he is an Indian national,
in the absence of such documents. Such delay in disposal
of the proceeding would also be against national interest.
The interest of justice, therefore, requires supply of the
certified copies of such documents, that too promptly,
whenever asked for."
31. Having regards the materials available in record and in the light of the
observations made in the case of Moslem Mondal (supra), we are of the view
that, the proceeding initiated by the Tribunal cannot be sustained for the
following reasons -
a) There was no any specific finding by the Enquiring
Authority that the petitioner is a foreigner migrated from
the specific territory i.e. Bangladesh.
b) Enquiring Authority specifically stated in the report
that the petitioner was not available in her address as it
was reported by their neighbor that she was working in a
brick filed at the relevant time.
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c) Even if the Referral Authority in spite of the finding of
the Enquiring authority decides to refer it to the Tribunal,
it must give cogent reasons to justify the reference on
account of the specific finding recorded by the Enquiring
Authority against the person concerned which we find to
be totally missing in the present case. The reference was
thus mechanically made and suffers from non-application
of mind.
d) Even if the reference has been made by the Referral
Authority contrary to the finding by the Enquiring
authority, it was incumbent upon the Tribunal to prima-
facie specify itself about the existence of the ground for
being referred to it. The Tribunal cannot mechanically act
upon any reference without examining the materials on
record. The reference made by the referral authority
cannot be mechanical as held by this Court in the case of
Moslem Mondal (supra).
32. On perusal of the proceeding of the Tribunal, we do not see any exercise
being undertaken by the Tribunal that the Tribunal was prima-facie satisfy about
the existence of main grounds on the doubtfulness of the nationality of the
proceedee before issuing notice to the petitioner.
33. Therefore, keeping the aforesaid principles laid down in the case of
Moslem Mondal (supra), we have no other option but to hold that the Tribunal
made an error in proceeding against the petitioner as there was no any specific
finding arrived at by the Enquiry Authority that the petitioner is an illegal
migrant.
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34. We also hold that the reference made by the Referral Authority was
mechanical and suffers from the vice of non-application of mind. On these
grounds, the opinion of the Tribunal is liable to be set aside.
35. Be that as it may, we are not entering into the merit of the case as far as
the appreciation of evidence is concerned as we have already held that the
initial proceeding itself is vitiated as there was no proper reference and in fact
the reference was contrary to the finding of the inquiry report that the petitioner
is suspected to be a foreigner based on the documents produced and
examination of local witnesses.
36. In the result, we allow this petition by setting aside the impugned opinion
dated 06.03.2020, passed by the Foreigners Tribunal 10 th, Dhubri in F.T. Case
No.10/TMH/1211/2018.
37. It is made clear that the State is at liberty to further make an enquiry, if
there is specific doubt against the petitioner that she is a foreigner of post
25.03.1971.
38. With the above observation, the writ petition is disposed of.
39. Transmit the case records to the Tribunal.
JUDGE JUDGE
Comparing Assistant
