Page No.# 1/9 GAHC010175282019 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5566/2019 ABDUL MANNAF @ MUNNAF ALI S/O LT. SADAR ALI @ SADARUDDIN SHEIK, VILL. ISWARJHARI, PT-1, P.S. JOGIGHOPA, DIST. BONGAIGAON (ASSAM) VERSUS THE UNION OF INDIA AND 5 ORS. REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, TILAK MARG, NEW DELHI-110001 2:THE ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI-110001 3:THE STATE OF ASSAM REP. BY THE SECRETARY TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI-6 4:THE STATE COORDINATOR NATIONAL REGISTER OF CITIZEN G.S. ROAD BHANGAGARH GUWAHATI-781005 5:THE MEMBER FOREIGNERS TRIBUNAL BONGAIGAON NO. 2 AT ABHAYAPURI BONGAIGAON ASSAM Page No.# 2/9 6:THE SUPERINTENDENT OF POLICE (B) BONGAIGAON ASSAM-78338 Advocate for the petitioner : Mr. S. Hoque Advocate for the respondent No.1 : Mr. S.S Roy, CGC Advocate for respondent No. 3, 4 & 6 : Ms. A. Verma, SC Advocate for respondent No. 5 : Mr. P. Sarma, Govt. Adv. Advocate for the Respondent No.2 : Mr. A. Ali, SC, ECI BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI HONOURABLE MR. JUSTICE PRANJAL DAS Date on which judgment is reserved : 29.05.2026 Date of pronouncement of judgment : 25.06.2026 Whether the pronouncement is of the : No. operative part of the judgment? Whether the full judgment has been : Yes pronounced? JUDGMENT & ORDER (CAV) Date : 25-06-2026 (Pranjal Das, J)traptions Heard Mr. S. Hoque, learned counsel for the petitioner. Also heard Ms. A Verma, learned Standing Counsel, Home Deptt., and NRC for the respondent Nos. 3, 4 & 6; Mr. A. Ali, learned Standing Counsel, ECI for the respondent No. 2; Mr. S.S Roy, learned CGC for the respondent No.1 and Mr. P. Sarma, learned State counsel for the respondent No.5. 2. The petitioner namely, Munnaf Ali, has invoked the provisions of Article 226 of the Constitution of India in challenging the judgment and opinion dated 15/02/2019 passed by the learned Member Foreigners Tribunal, No. 2, Abhayapuri in F.T Case No. BNGN-FT-1663/2008, arising out of Reference BNGN IMDT Case No. 129/2004, whereby the petitioner as proceedee was declared to be a foreigner who had illegally entered into India from Bangladesh after 25/03/1971. Page No.# 3/9 3. The facts in brief may be narrated herein below: A reference was forwarded by the Superintendent of Police Border, Bongaigaon, vide Reference No. BNGN/FT/1663/2003, being Reference IMDT Case No. 129/2004, expressing doubts about the nationality of the petitioner, Munnaf Ali, and placing before the learned Tribunal to decide the question of his nationality and render an opinion thereof in terms of the governing law. Accordingly, the aforementioned FT case was registered and the petitioner was noticed. The petitioner appeared before the Tribunal and filed a written statement along with documents claiming that he was an Indian citizen by birth. 4. During the proceeding, the petitioner adduced evidence of two witnesses being himself as DW1 and another Mojibur Rahman stated to be his brother as DW2. In support of his case, the petitioner as proceedee also exhibited 14 documents. However, upon completion of the adjudication, the learned Tribunal did not find merit in the case of the petitioner and declared him a foreigner post 25/03/1971 stream. 5. Aggrieved by the same, the petitioner is before this Court with this writ petition. As mentioned above, upon being noticed, the petitioner filed a written statement in which he stated that he is a bona fide citizen of India by birth and that the reference proceeding was initiated without any justification. He stated in the written statement that the father of the petitioner was enrolled in the voters' list of 1966 at village Bhutkura against Sl. No. 96 with regard to Bongaigaon LAC. However, the name of the petitioner's father was not mentioned in the said statement. It is also stated in the written statement that the petitioner's father and his family subsequently shifted to village Iswarjhari under Jogighopa Police Station in the district of Bongaigaon in 1982 and started to live there permanently. The petitioner stated that he was himself enrolled in the electoral roll of 1985 at Sl. No. 190 with regard to No. 35 Abhayapuri South (SC) LAC in the district of Bongaigaon. The petitioner stated that his name was also enlisted in the electoral roll of 1997 at Sl. No. 111 and in the electoral roll of 2011 at Sl. No. 351. The petitioner also stated that the learned Foreigners Tribunal Bongaigaon in Case No. BNGN/FT-1301/07 which was initiated against his brother Mojibur Rahman was pleased to declare that his said brother Mojibur Rahman is not a foreigner. 6. It is stated in this context that the petitioner acquired his citizenship in the same manner as his brother and that the reference proceeding against him was not justified. It is stated by the petitioner that his name has been continuously appearing in the electoral roll since 1985. As mentioned above, the Page No.# 4/9 petitioner, during the proceeding adduced evidence on affidavit as DW1. In his deposition he stated that the reference proceeding initiated against him was not justified and that he was an Indian citizen by birth born 46 years ago at Bhutkura Part-II village under Abhayapuri Police Station in the then Goalpara district of Assam. He stated that his name is Abdul Mannaf and his nickname is Mannaf Ali. He further deposed that his father and mother are genuine Indian citizens being Sadar Ali alias Sadar Uddin Sheikh. It is stated that Sadar and Sadar Uddin Sheikh are the nicknames of his father. He further stated that his mother's name is Mojiran Nessa and nickname is Moriyom Nessa. He stated in his deposition that his parents’ names were recorded in the electoral roll of 1966 of village Bhutkura Part-II against Sl. 96 and Sl. No. 97 with regard to No. 43 Bongaigaon LAC. He exhibited the relevant document as Exhibit A. He further stated that their names were also enlisted in the electoral roll of 1970 by Sl. Nos. 95 and 96 and the relevant document was exhibited as Exhibit B. He stated that after two years of his father's death, he shifted to village Iswarjhari Part-I along with his mother, brother Abdul Matlib due to flood erosion and started residing permanently in the said village. DW-1 testified that his name was recorded in the electoral roll of 1985 at Sl. No. 190 of village Iswarjhari Part-I of No. 35 Abhayapuri (SC) LAC and he casted his vote for the first time therein. He stated that in the said electoral roll, his mother's name being Moriyom Nessa alias Mojiran Nessa was also recorded at Sl. No. 188 and his brother's name Abdul Matlib was also recorded at Sl. No. 189 stating further that Abdul Matlib is now dead. He exhibited the certified copy of the said electoral roll as Exhibit C. He stated that around the time of 1995, he started living separately from his mother and brother and his name was recorded in the electoral roll of 1997 at village Iswarjhari under No. 35 Abhayapuri (SC) LAC at Sl. No. 111. He exhibited the certified copy of the electoral roll of 1997 as Exhibit D. Similarly, he exhibited as Exhibits E and F, the electoral rolls of 2011 and 2015 featuring his names. In paragraph-8 of the evidence on affidavit, DW-1 stated that his father Sadar Ali alias Sadar Uddin Sheikh is one and the same person. He further stated that his mother Mojiran Nessa alias Moriyom Nessa are also one and the same person. He further stated that he himself being Abdul Mannaf alias Mannaf Ali is also one and the same person. A self-declaration affidavit regarding the same was exhibited as Exhibit G. In support of his claim for being an Indian citizen he also exhibited bank account document as Exhibit H and a Gaon Panchayat certificate as Exhibit I. The certified copy of the order dated 04/05/2010 declaring his brother Mojibar Rahman to be not a foreigner was exhibited as Exhibit J. 7. The aforementioned Mojibar Rahman, stated to be the brother of the petitioner, adduced evidence as DW 2. In his deposition, he stated that he is a bona fide Indian citizen and the petitioner is his own brother whose name is Abdul Mannaf and nickname is Mannaf Ali. He deposed that his father's name is Page No.# 5/9 Sadar Ali alias Sadar Uddin and mother's name is Mojiran Nessa alias Moriyom Nessa which is her nickname. 8. DW 2 testified that his parents’ names appeared in the voters lists of 1966 and 1970 with regard to No.43 Bongaigaon LAC of village Bhutkura Part-II. He referred to Exhibits A and B in this regard. He stated about shifting of his brother- the petitioner after the death of their father to village Iswarjhari Part-II. He stated that his name was entered in the voters list of 1985 with regard to No. 35 Abhayapuri (SC) LAC referring to the Exhibit C in this regard. He also stated about his name featuring in the voters list of 1997, 2008 and 2015 referring to Exhibits K, L and M respectively in this regard. He exhibited as Exhibit D certified copy of the order dated 04/05/2010 passed in FT Case No. 911 of 2007 finding that he was a bona fide Indian citizen. DW 2 testified that his parents are bona fide Indian citizens and he is also a bona fide citizen of India and that the petitioner is an Indian citizen by birth and not a foreigner. 9. Against a query by the Tribunal, DW 2 stated that the petitioner is his younger brother but he does not know his date of birth. DW 2 stated that he cast his vote in 1985 for the first time and that his father cast his vote in 1966 for the first time. He stated that his mother is still alive. He admitted that his name and that of his mother are not in the same voters list together. He stated that he and his mother live in the same village. He also admitted that his name and that of his brother the petitioner are not in the voters list together. 10. Mr. Hoque, the learned counsel for the petitioner supporting the case of the petitioner contended that the reference was unjustified as the petitioner is a bona fide Indian citizen by birth. He stated that the parents of the petitioner were Indian citizens themselves whose names figured in the voters lists of 1966 and 1970 and the relevant documents were exhibited during the proceeding. However, the learned Tribunal misread the evidence and overlooked the same. It is also submitted that the petitioner's name appeared in the voters list of 1985 and subsequently also. 11. In support of his contentions, the petitioner had adduced in evidence a certificate issued by Gaon Panchayat as Exhibit I but that was overlooked and wrongly appreciated by the learned Tribunal resulting in a negative finding against the petitioner. 12. It is submitted by the learned counsel that in paragraph-11 of the written statement, the petitioner clearly pleaded that his brother was not a foreigner and there was a positive finding in his favor in an earlier proceeding. Page No.# 6/9 13. On the other hand, Ms. A. Verma, the learned counsel for respondent Nos. 3, 4 & 6 submits that there is discrepancy in the mother's name and there is a considerable jump from the 1970 to 1985 as far as enlisting of the petitioner's mother in the voters lists is concerned. 14. It is submitted that there are discrepancies regarding names and his father is found to be having as many as five alias names. In none of the documents, the brothers and family members are seen to be enlisted together. It is submitted that there are no proved documents to build the essential linkage with any Indian citizen ancestor. The gaps in the evidence have not been explained satisfactorily by the petitioner. The panchayat certificate has rightly been discarded by the learned Tribunal. 15. In support of her respective contentions, the learned counsel for the respondent No. 3, 4 & 6 relied on the following decisions: (i) Isiran Nessa -versus- Union of India & 3 Others, reported in 2020(3) GLT 531. (ii) Musstt. Ayesha Khatun -versus- Union of India & Others, reported in 2017 (3) Gaul LJ 490 : (2017) 3 Gau LR 820. 16. We have perused the materials on record and considered the rival submissions. We have also considered the case laws cited at the Bar. 17. The petitioner has projected as his parents, one Sadar Ali, son of Somser Ali and one Mojiran Nessa, wife of Sadar Ali. In support of the said contention, the petitioner has exhibited as Exhibit A, the Voters List of 1966, pertaining to Bongaigaon LAC. 18. Upon perusing the said document, it is correct that the name of Sadar Ali appears at Serial No. 96 and Mojiran Nessa at Serial No. 97. The 1970 voters list has also been exhibited as Exhibit B and again, the name of Sadar Ali, son of Somser Ali, appears at Serial Nos. 95 and Mojiran Nessa, wife of Sadar, appears at Serial No. 96 with regard to No. 43 Bongaigaon LAC in the State of Assam. However, the said electoral roll exhibited is a translated copy of the electoral roll. Again, an additional voters list has been exhibited of 1985, of No. 35 of Abhayapuri South (SC) LAC, in which Moriyom Nessa is indicated as the wife of Sadar and name of Abdul Mannaf also features, indicated as son of said Sodar. However, this again is a translated copy of the electoral roll. 19. Similarly, the petitioner has exhibited as Exhibit D and Exhibit E, translated copies of the electoral rolls of 1997 and 2011. In the 1997 list, the name of Abdul Mannaf appears and indicated as son of Sadar Ali and Sokima Khatun indicated as wife of Abdul Mannaf. In 2011 voters list, the name of Abdul Mannaf is indicated as son of Sadar Ali and Sokima Khatun as wife of Abdul Mannaf. However, both Page No.# 7/9 these voters lists of 1997 and 2011 are also translated copies. From the written statement and the testimony of the petitioner side, it is also revealed that the petitioner Abdul Mannaf has another name by Mannaf Ali. Similarly, with regard to his father Sadar Ali, it has emerged from the written statement and the testimony of DW1 as well as his brother DW2 that Sadar Ali was also known as Sadar Ali @ Sadar Uddin Sheikh. 20. It may be mentioned here that in the voters list of 1985, the father of the petitioner is mentioned as Sadar, while in the Voters Lists of 1966 and 1970 he is mentioned as Sadar Ali. DW2, stated to be the brother of the petitioner, in his evidence has stated about another F.T proceeding in which he has been declared as not a foreign national. 21. The learned counsel for the respondent Nos. 3, 4 and 6, Ms. Verma, contended that translated copy of the voters list would not be an acceptable documentary evidence by way of even a secondary evidence. Further, the self-certified affidavit regarding the multiple names of the projected father of the petitioner and also the two names of the petitioner himself is also stated to be not satisfying the criteria of admissible evidence in view of the decisions submitted in this regard. With regard to the aspect of translated copy of electoral rolls, the decision in Isiran Nessa (supra) referred to by the respondent side clarifies the issue by holding that translated copy cannot be construed as certified copies and cannot be treated as secondary evidence. The relevant paragraphs-21 and 22 may be reproduced herein below: “21. Section 74 explains as to what are public documents and Section 76 deals with certified copies of public documents. As per Section 76, every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof and such certificate shall be dated and subscribed by such officer with his name and his official title and shall be sealed whenever such officer is authorized by law to make use of a seal. Such copy so certified shall be called certified copies. 22. On a careful and conjoint reading of the aforesaid provisions of the Evidence Act together with the definition of certified copy, we are of the unhesitant view that a translated copy, such as, Exts-A and D cannot be construed as certified copies and, therefore, cannot be treated as secondary evidence. This position is further strengthened if we look at Exts.A and D because there is no certification by the competent authority certifying that the extracts are true copies from the original. We may also observe that though certified copies are admissible as secondary evidence, it would be so only if those are issued by the competent authority. Admission of photo-stat copies, Page No.# 8/9 even if attested by Notary Public, is improper and inadmissible in evidence under Section 63 of the Evidence Act. That apart, certified copies of documents (not to speak of photo-stat copies) not coming within the ambit of Clauses (a) or (e) of Section 65 would not be admissible in evidence. That apart, as a general principle, secondary evidence is not admissible until non-production of primary evidence is satisfactorily accounted for. In addition, we may also refer to Section 66 of the Evidence Act, as per which, secondary evidence of the contents of documents shall not be given unless the party proposing to give such secondary evidence had previously given to the party in whose possession or power the document is such notice to produce it as is prescribed by law. In other words, a party desirous of adducing secondary evidence must not only satisfactorily explain non-production of primary evidence but also must give previous notice to the party who is in possession of the primary evidence and if despite such notice, the primary evidence is not produced before the Tribunal by the custodian of the primary evidence, in such a situation, Tribunal may invoke its power under Order 4 of the Foreigners (Tribunals) Order, 1964 to issue summons to the custodian of the primary evidence and not as a matter of course.” 22. Thus, in view of the clear exposition of law on this point, it is clear that though purportedly the name of Sadar or Sadar Ali features against the name of Abdul Mannaf in the Voters Lists of 1985, 1997 and 2011, all these electoral rolls being translated copies cannot be accepted as admissible documentary evidence and they would also not qualify as admissible secondary evidence in terms of the relevant provisions of the Indian Evidence Act and also the aforesaid exposition of the law in Isiran Nessa (supra). The decision in Ayesha Khatun (supra), relied upon by the respondent side, delves into the aspect of the proceedee under the Foreigners Act, coming out with all the material facts within his or her exclusive knowledge in the written statement and the importance of all such material facts being part of evidence and the written statement. The relevant para-21 may be reproduced herein below: “21. Written statement submitted by a noticee facing a proceeding under the Foreigners Act, 1946 read with Foreigners (Tribunals) Order, 1964 is the foundation of his or her defence. Since citizenship of the noticee is questioned, the noticee should come out with all material facts within his or her exclusive knowledge in terms of Section 9 of the Foreigners Act, 1946 and disclose them in the written statement. The averments made in the written statement are thereafter required to be proved by adducing cogent and reliable evidence. Failure to disclose materials particulars in the written statement by itself will raise a serious question mark on the citizenship status of the noticee.” 23. Regarding the self-sworn affidavit exhibited as Exhibit G regarding the multiple names of the Page No.# 9/9 petitioner's father belonging to the same person - the same also cannot be accepted in evidence. In this regard, para 21 of the decision of this court in Romila Khatun -versus- Union of India & Others, reported in 2018 (4) GLT 373 may be reproduced herein below: “21. Such a self-serving suo-moto affidavit is neither proof nor evidence in the light of Sections 1 and 3 of the Indian Evidence Act, 1872 and Order 19 Rule 1 of the Civil Procedure Code….” 24. Thus, it is clear that such an affidavit regarding multiple names of the projected father of the petitioner could not come to the assistance of the petitioner. In any case, the main infirmity in the evidence adduced by the petitioner's side is that the electoral rolls on the basis of which a linkage is sought to be built with the projected father fails due to being translated copies in terms of the position of law indicated in the preceding paragraphs. 25. It is well settled by the legal regimen governing the field from the exposition of law by this court as well as by the Hon’ble Supreme Court that finding in a reference proceedings that the particular person is a foreigner would not automatically make his family members also foreigners and that a separate reference proceeding has to be initiated against each of them. Similarly, we are of the view that merely because the projected brother of the petitioner adducing evidence as DW 2 was declared to be not a foreign national in a separate reference proceeding - that in itself would not automatically mean that the petitioner would also be an Indian national. Each reference proceedee would have to stand on its own merits as regards the question of citizenship of the proceeding concerned. 26. Consequently, on the basis of the evidence and materials on record, we are unable to take any view other than concurring with the opinion rendered by the learned Tribunal. 27. Thus, the impugned judgment and opinion dated 15/02/2019 passed by the learned Member, Foreigners Tribunal No. 2 of Abhayapuri in F.T Case No. BNGN-FT-1663/2008 declaring the petitioner as foreigner post 25/03/1971 stream is hereby upheld and confirmed. 28. Consequently, the written petition stands dismissed. 29. Interim order, if any, stands vacated. 30. Records be sent back forthwith. JUDGE JUDGE Comparing Assistant