Page No.# 1/13 GAHC010134832025 2025:GAU-AS:12900-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/3618/2025 TASER MIA ALIAS TACHER MIYA ALIAS TASER MIYA S/O- LATE KOCHIMUDDIN MIYA, R/O- VILL.- NIZ BAHARI, P.O. BAHARI, P.S. TARABARI, DIST. BARPETA, ASSAM, PIN- 781302. VERSUS THE UNION OF INDIA AND 6 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, TILAK MARG, NEW DELHI. 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-781006. 3:THE DISTRICT COMMISSIONER BARPETA P.O. AND DIST. BARPETA ASSAM PIN- 781301. 4:THE SUPERINTENDENT OF POLICE (B) BARPETA P.O. AND DIST. BARPETA ASSAM PIN- 781301. 5:THE ELECTION COMMISSION OF INDIA THROUGH ITS SECRETARY NIRBACHAN BHAWAN NEW DELHI-01. Page No.# 2/13 6:THE STATE CO-ORDINATOR NATIONAL REGISTRAR OF CITIZENS (NRC) ASSAM BHANGAGARH GUWAHATI-05. 7:THE DISTRICT ELECTION OFFICER BARPETA P.O. AND DIST. BARPETA ASSAM PIN- 781301 Advocate for the Petitioner : MR K BHUYAN, MR. M U E BHUYAN,R K TALUKDAR,MS. A AKHTAR Advocate for the Respondent : DY.S.G.I., SC, ECI,SC, NRC,SC, F.T,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE RAJESH MAZUMDAR ORDER Date : 16.09.2025 (R. Mazumdar, J) Heard Mr. K. Bhuyan, learned counsel for the petitioner. Also heard Mr. S.P. Choudhury., learned CGC; Mr. J. Payeng, learned standing counsel for the FT matters; Mr. M. Islam, learned counsel appearing on behalf of Mr. A.I. Ali, learned standing counsel for the ECI; and Mr. P. Sarmah, learned Additional Senior 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 impugned opinion dated 16.05.2025, passed by the learned Member, Foreigners’ Tribunal No. 7, Barpeta in F.T. Case Page No.# 3/13 No. 156 of 2018, arising out of R/FT Case No. 688/2010, by which the petitioner was declared as an illegal migrant. 3. Keeping in view the nature of the grievance raised on behalf of the petitioner regarding the alleged procedural lapse and denial of reasonable opportunity to defend, and also considering that the trial Court records have been received, the writ petition, with the consent of both parties, has been taken up for disposal at this stage. Facts of the case as reflected in the Trial Court records: 4. A reference had been received by the learned Tribunal from the Superintendent of Police (Border), Barpeta seeking an opinion regarding the citizenship of the petitioner. Pursuant thereto, on receipt of notice from the learned Tribunal to appear and provide sufficient evidence to prove his citizenship, the petitioner filed his written statement on 09.01.2025, followed by his evidence on affidavit on 17.02.2025. Thereafter, the evidence of DW-2, the projected aunt of the petitioner, was filed on 28.03.2025. Both DW-1, i.e. the petitioner, and DW-2 were cross-examined on 16.05.2025. 5. The records which were called for from the learned Tribunal by order dated 26.06.2025 have been received and a perusal of the records reveals that on 16.05.2025 during the cross-examination of the petitioner by the learned AGP, the petitioner had admitted that one Baser Miya was his elder brother. While answering the questions put by the learned Tribunal on the same day, the petitioner had admitted that he was aware of the fact that a reference case was Page No.# 4/13 initiated against his aforesaid brother Baser Miya before the learned Tribunal and Baser Miya had told him about the result of the FT case. He further admitted that it is a fact that he knew that Baser Miya was declared to be a foreigner of the post 1971 stream by the learned Tribunal. He also admitted that before filing of the written statement and the evidence on affidavit, he was aware of the fact that Baser Miya had been declared as a foreigner of the post 1971 stream. The records of the learned Tribunal also reveal that the learned AGP had filed three petitions on 16.05.2025, which was numbered as 342, 343 and 344 respectively. The petition bearing No. 342 contained a prayer for taking the case records of F.T. Case No. 502 of 2017 along with records of the F.T. Case No. 156 of 2018, which was being placed by the petitioner. The petition No. 343 contained a prayer to retain the extra copy of the written statement and evidence on record along with the documents filed in F.T. Case No. 502 of 2017 with the records of F.T. Case No. 156 of 2018. The petition No. 344 contained a prayer to take the petitioner into custody till passing of a final opinion by the learned Tribunal on the apprehension that the petitioner may do the act of vanishing. 6. The records of the learned Tribunal also reveal that the entire records in connection with the F.T. Case No. 502 of 2017 had been forwarded to this Court on a requisition made on 05.02.2025 in WP(C) 486 of 2025, which related to a writ petition filed by the brother of the petitioner, namely, Baser Miya against the order dated 27.08.2024, by which he had been declared as a foreigner. The learned Tribunal in the impugned order dated 16.05.2025 has recorded that when the learned AGP came to know that the records had been sent to this Court on requisition, it was then that petition No. 343 was placed Page No.# 5/13 before the learned Tribunal. 7. Simultaneously a petition bearing No. 344 was also filed by the learned AGP, praying for taking the petitioner into custody till disposal of the proceedings. 8. On 16.05.2025 itself, the learned Tribunal took up the case for hearing arguments and records revealed that on a specific question put to the counsel for the petitioner, he informed the learned Tribunal that the petitioner had not informed the said counsel regarding the opinion of the learned Tribunal declaring his brother to be a foreigner and conceded the fact that the petitioner herein has concealed the fact of his elder brother being declared a foreigner of the post 1971. 9. The learned Tribunal thereafter, went ahead to hold that the petitioner had acted in a manner to cause colossal insult to justice and to the concept of speedy disposal of the reference cases for obtaining a favourable order from the tribunal. The learned Tribunal has recorded that the petitioner had committed an act of fraud by concealing the earlier order passed against his elder brother and that the learned Tribunal felt constrained to take necessary steps to punish the petitioner who had indulged in an act causing disrepute and disrespect. Accordingly, the learned Tribunal directed the petitioner to be taken into custody. The learned Tribunal thereafter noticed that since there was an apprehension that the petitioner may disappear given an opportunity, the learned Tribunal decided to deliver the final opinion during the course of the day itself. Basing on the fact that the elder brother of the petitioner had been Page No.# 6/13 declared as a foreigner of the post 1971 stream by the learned Tribunal in F.T. Case No. 502 of 2017, which was not yet set aside by this Court and was pending disposal, the learned Tribunal declared the petitioner as a foreigner of the post 1971 stream belonging to the same lineage as his brother. The petitioner was thereafter sent to the transit camp for detention. Submissions by the learned counsel for the petitioner: 10. The learned counsel appearing for the petitioner has submitted that the manner in which the petitioner was taken into custody immediately after his cross-examination by the learned AGP and after he had answered the questions put to him by the learned Tribunal the petitioner had no opportunity to place his defence against the allegations raised by the learned AGP in the three petitions filed by him. The learned counsel for the petitioner further submits that the non- declaration of the fact that the elder brother of the petitioner having been declared as a foreigner would not absolve the learned Tribunal of its duty to have at least compared the records of the two cases namely F.T. Case No. 502 of 2017 and F.T. Case No. 156 of 2018 and the learned Tribunal had committed an error when the documents placed by the learned AGP along with his petition bearing No. 343 were taken on record without the same being either exhibited or compared with the alleged original records of F.T. Case No. 502 of 2017. The learned counsel therefore pleads that since the petitioner did not have adequate opportunities of defending himself before the learned Tribunal, the impugned opinion rendered by the learned Tribunal on 16.05.2025 in F.T. Case No. 156 of 2018 deserves the interference of this Court and the matter is required to be remanded back to enable the petitioner to fruitfully exercise his right of defence. Page No.# 7/13 Submissions of the learned standing counsel for the FT and Border matters: 11. The learned standing counsel for FT matters on the other hand has submitted that there is no denial of the fact that the elder brother of the petitioner had been declared a foreigner after a duly contested case and the petitioner had abstained from declaring the same vital and material fact to the learned Tribunal both in his written statement as well as in his evidence filed on the affidavit. The learned standing counsel for FT matters, therefore, asserts that in view of the admitted attempt of the petitioner to suppress material fact before the learned Tribunal was a mala fide act and therefore, the learned Tribunal was correct in proceeding with the matter with the urgency displayed in the impugned opinion. He submitted that there was no error committed in taking the petitioner into custody on 16.05.2025 itself in view of the fact that since the petitioner had attempted to mislead the learned Tribunal there was a reasonable apprehension that if he was not detained he would vanish without a trace. The learned counsel for the FT matters submitted that the learned Tribunal had acted fairly when it took up the matter for disposal on the same date itself so that no prejudice would be caused to either of the parties. Discussion and decision: 12. A perusal of the final order/ opinion rendered by the learned Member Foreigners’ Tribunal No.7, Barpeta in F.T. Case No. 156 of 2018 would reveal that the records of F.T. Case No. 502 of 2017 were not available in the Tribunal since the same had been dispatched to this Court on requisition. The learned Tribunal had taken into account the copy of the order passed in F.T. Case No. 502 of Page No.# 8/13 2017 to come to a conclusion that the same documents, which were relied upon by the elder brother of the petitioner, namely, Baser Miya were also relied upon by the petitioner in the present case to support his claim of citizenship. The different paragraphs in the impugned opinion reflect that only the order as placed before the learned Tribunal had been taken into account. In fact the records of F.T. Case No. 502 of 2017 were not before the learned Tribunal and therefore, could not be compared with the documents, which were relied upon by the petitioner in the proceedings against him. 13. It is also noticed that the petitioner was taken into custody on 16.05.2025 immediately after his cross-examination and he was not supplied with the copy of the petition Nos. 342, 343 and 344 filed by the learned AGP before the learned Tribunal on 16.05.2025 and therefore, he did not get the opportunity to rebut the allegations against him. It is also noticed that the counsel engaged by the petitioner had made allegations against the petitioner to the extent that the petitioner had not informed him and even in that case the petitioner did not have the opportunity to rebut the claims made by the counsel engaged by the petitioner. The different documents which had been submitted by the petitioner revealed that he had put his thumb impression in the affidavit and in the written statement, leading to a presumption that he was not conversant with the language in which the said documents were filed and there is no indication in any of the orders passed by the learned Tribunal that the contents of the applications filed by the learned AGP on 16.05.2025 were explained to him or that he was given an opportunity to answer the same. The records do not reveal that copies of the said three petitions had been served upon the petitioner or his lawyer before the same were taken up for Page No.# 9/13 consideration by the learned Tribunal. 14. By presuming the non-disclosure of “material facts” by the petitioner to be a fraud upon the Tribunal and immediately thereafter by presuming documents produced by the learned AGP to be evidence, followed by an order punishing the petitioner for the alleged fraud, in our considered opinion, the Tribunal has adorned the robe of a complainant, Judge and executioner and that too without passing any order to either dispense with the evidence led by the petitioner or to accept the un-exhibited documents produced by the learned AGP and without comparing such documents with original records. We have to disapprove of the procedure adopted by the learned Tribunal in view of the second proviso of Section 165 of the Indian Evidence Act, 1872 corresponding to Section 168 of Bharatiya Sakshya Adhiniyam, 2023. More particularly, when the documents produced by the learned AGP were not on the directions of the Tribunal, but were placed before the Tribunal along with the petition to accept the same. Section 168 of Bharatiya Sakshya Adhiniyam, 2023 is quoted below: “S.168 : Judge's power to put questions or order production. The Judge may, in order to discover or obtain proof of relevant facts, ask any question he considers necessary, in any form, at any time, of any witness, or of the parties about any fact; and may order the production of any document or thing; and neither the parties nor their representatives 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: Provided that the judgment must be based upon facts declared by this Adhiniyam to be relevant, and duly proved: Provided further that this section shall not authorise 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 127 Page No.# 10/13 to 136, both inclusive, if the question were asked or the document 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 151 or 152; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.” 15. From a perusal of the impugned opinion expressed by the learned Tribunal, it is seen that the learned Tribunal did not consider the relevancy or otherwise of any of the evidence led by the petitioner and the learned Tribunal proceeded only on the grounds that the brother of the petitioner had been declared a foreigner to come to a conclusion that the petitioner was also required to be declared as a foreigner. 16. Having applied our anxious mind to the facts of the present case, we are of the opinion that the non-supply of the three petitions filed by the learned AGP to the petitioner or to his counsel, and the fact that the petitioner did not have an opportunity to rebut any of the allegations levelled against him including the allegation levelled by his counsel that he did not furnish proper instructions, has indeed put the petitioner to suffer prejudice in so far as his defence to the said allegations are concerned. The learned Tribunal had taken the petitioner into custody deeming it to be a necessary step to punish the petitioner and we find that the petitioner was not given an opportunity to have his reply recorded before such punishment was imposed upon him. The imposition of the punishment on the petitioner would amount to exercise of contempt jurisdiction in the present matter, which the learned Tribunal, in our opinion, was not entitled to exercise in this matter at that stage. It was only required to render an opinion based on the materials before it regarding the claim of citizenship of the petitioner. Page No.# 11/13 17. We also are of the opinion that without having evaluated the records of F.T. Case No. 502 of 2017 vis-a-vis the records of F.T. Case No. 156 of 2018, it was not correct on the part of the learned Tribunal to have come to a conclusion that the same documents were the basis of the claim in both the petitions and that the rejection of the documents in one of the cases would ipso facto lead to rejection of documents exhibited in the case of the petitioner also. 18. 18. In view of above, we interfere with the impugned opinion dated 16.05.2025, passed by the learned Member Foreigners’ Tribunal No.7, Barpeta in F.T. Case No. 156 of 2018 to the extent that the petitioner has been declared to be foreigner of the post 1971 stream and we deem it appropriate to remand the matter back to the learned Tribunal for reconsideration of the matter in light of what has been discussed herein above. It is clarified that the merits of the claim of the petitioner have not been gone into in this present order and we have interfered only in view of the fact that the petitioner was taken into custody on 16.05.2025 and petitions filed by the learned AGP were decided without giving an opportunity to the petitioner of being heard on the said petitions as well as on the merits of his claim. 19. Resultantly, this writ petition is allowed to the extent as indicated above by remanding the matter for a fresh decision. On the opinion of the learned Tribunal being set aside, the petitioner is directed to be released from the detention centre at Matia, Goalpara, subject to the following conditions. a. The family members of the applicant shall appear before the Superintendent of Police (Border), Barpeta and furnish bail bond of Rs.5,000/- (Rupees five thousand only) with 2 (two) solvent sureties of like amount to the satisfaction of the said authority. Page No.# 12/13 b. Before releasing the applicant on bail, the Superintendent of Police (Border), Barpeta 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 applicant for securing his presence. d. The petitioner shall cooperate and participate in the proceedings before the learned Tribunal pursuant to this order and shall not make any attempt to cause delay in disposal of the proceedings. 20. Thereafter, steps shall be taken by the Superintendent of Police (Border), Barpeta to have the applicant released from the detention centre within 3 (three) days from the date of receipt of certified copy of this order. 21. The petitioner on his release shall appear before the learned Tribunal on or before 16.10.2025 without any further notice. If the petitioner is found absent on the said date, the learned Tribunal shall be at liberty to proceed with the matter in accordance with law. 22. On his appearance before the learned Tribunal, the copies of the three petitions filed by the learned AGP shall be served upon the petitioner, to which he would be afforded an opportunity to reply or rebut. The learned Tribunal shall give such opportunity of defence to the petitioner in accordance with law. The State shall be at liberty to obtain certified copies of the records of F.T. Case No. 502 of 2017 from the Registry of this Court, from the records retain in WP(C) 486 of 2025 to rebut the evidence, if any, led by the petitioner in support Page No.# 13/13 of his claim of citizenship. 23. The records requisition be returned forthwith to the learned Tribunal along with a copy of the order passed today for further proceedings. JUDGE JUDGE Comparing Assistant