Page No.# 1/9 GAHC010174922025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Linked Case : WP(C)/3767/2025 WAJUDDIN S/O- JABED ALI R/O- VILLAGE- BHERAGAON P.S-BARPETA DIST- BARPETA ASSAM PIN-781314 VERSUS THE UNION OF INDIA REP. BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS GOVT. OF INDIA SASTRI BHAWAN NEW DELHI- 110001. 2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6 3:THE DISTRICT COMMISIONNER KAMRUP METRO HENGRABARI GUWAHATI-06 4:THE DEPUTY COMMISSIONER OF POLICE (B) Page No.# 2/9 KAMRUP METRO PANBAZAR GUWAHATI-01 5:THE ELECTION COMMISSION OF INDIA REP. BY THE CHIEF ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI-110001 6:THE OFFICER IN CHARGE BARPETA P.S DIST- BARPETA ASSAM PIN-781319 ------------ Advocate for : MR. S. K. CHAKMA Advocate for : DY.S.G.I. appearing for THE UNION OF INDIA BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER 12.08.2025 (K.R. Surana, J) Heard Ms. D. Ghosh, learned counsel for the petitioner. Also heard Mr. B. Chakravorty, learned CGC; Mr. H. Kuli, learned counsel on behalf of Mr. A.I. Ali, learned standing counsel for the ECI; Mr. P. Sarmah, Additional Senior Government Advocate and Mr. J. Payeng, learned standing counsel for the FT and Border matters. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the ex parte opinion dated 30.03.2019, passed by the learned Member, Foreigners’ Tribunal-4th, Kamrup (M), Assam, in F.T. Case No- FT[K(M)-4] 1435/17, arising out of FT Case No. 27/15, thereby declaring the Page No.# 3/9 petitioner is not born and brought up through genuine Indian parents in Indian soil and he failed to prove that he is not a foreigner and accordingly, it was held that the petitioner has entered into the State after 25.03.1971. 3. It is projected in this writ petition that the petitioner was not aware of the proceedings as no notice of the proceeding was served on him. Moreover, it is also projected that on 26.05.2025, the petitioner was taken into custody and he is presently lodged at Transit camp, Matia, Goalpara. Therefore, the affidavit in support of this writ petition is sworn by Bahaj Uddin, who claims to be the younger brother of the petitioner. 4. The learned standing counsel for the FT and Border matters has vehemently supported the ex parte opinion rendered against the petitioner and he has submitted that as per the process server’s report, in the presence of 2 (two) witnesses, the notice of the Tribunal was pasted in the wall of the Company where the petitioner was serving and therefore, the notice was duly served in accordance with the provisions of Paragraph-3(5)(F) of the Foreigners (Tribunals) Order, 1964. It is further submitted that as per the requirement of the said 1964 Order, upon a reference being registered against the proceedee, in the event, the address of the proceedee is changed or the proceedee has shifted to another place, it was his/her duty to inform the Office of the jurisdictional and/or Deputy Commissioner of Police (B), Kamrup (M) about the change of address. Accordingly, it is submitted that as the notice was served on the last known address of the petitioner, notice is deemed to be duly served and therefore the ex parte opinion ought not to be interfered with after a lapse of about 6 (six) years from the date of rendition of the said opinion. Page No.# 4/9 5. The learned standing counsel for the FT and Border matters has also referred to the provisions of Paragraph-3(5)(a) of the Foreigner’s (Tribunals) Order, 1964 and has submitted that there is no requirement of notice of the proceeding to be served at the permanent address of the proceedee as the law mandates that the notice is required to be served at the last address where the proceedee reportedly resided or works for gain. As the learned standing counsel for the FT matters has referred to the provisions of Paragraph-3(5)(a) of the Foreigners (Tribunals) Order, 1964, the same is quoted below:- “The procedure for serving notice to a person suspected of being a foreigner (referred to as the "proceedee"). It specifies that the notice should be served at the address where the proceedee last resided, or where they are reported to reside or work for gain. If the proceedee has changed their address and duly informed the investigating agency, the notice should be served at the new address. “ 6. In this regard, there are 2 (two) aspects of the matter. Firstly, while making the reference, the competent authority has provided two addresses of the petitioner. The notice of the Tribunal was issued in the present address, which was the last address where the petitioner was working for gain. However, as already referred above, at the time when the enquiry was being made, the petitioner was not found available there. Two witnesses, whose statement has been recorded by the process server, have stated that the petitioner was working as a labour and in the process server’s report, the officer of the factory where the petitioner was working, has made an endorsement to the effect that the work had been completed long time ago and the person concerned had left the site long ago in December 2016. Page No.# 5/9 7. Therefore, this is not a case where the petitioner was found at his last place of residence when the enquiry by the LVO was being made. On the other hand, in paragraph-3 of the writ petition, the petitioner has made a categorical statement that he was arrested/taken into custody on 26.05.2025 from his house at Village-Bheragaon, under P.S. and District-Barpeta. 8. While issuing process, the learned Tribunal has not recorded the reasons why the process was not issued at the first address of Village-Bheragaon, under P.S. and District-Barpeta, as provided in the reference. 9. Therefore, the Court is of the considered opinion that the learned Tribunal, with full knowledge that the petitioner is not residing in the place where the process was to be served, issued process in that last known address. In the reference by the concerned Border Police authority, two addresses of the petitioner have been disclosed. There is no order by the Tribunal why the notice should not be sent to the first address. Moreover, in the ex parte opinion dated 30.03.2019, a specific observation had been made by the learned Tribunal, to the effect that the Deputy Commissioner of Police, Kamrup (M), Guwahati had expressed doubt about the nationality of the petitioner, namely Wajuddin, son of Md. Jabed Ali, Village-Bheragaon, P.S.-Barpeta, District-Barpeta, Assam, presently residing at C/o. Shri Subrata Hore, son of late Bani Prasad Hore, Village-Rajani Gandha Factory, SOS Road, P.S.-Azara, District-Kamrup (M). It is not the case of the State that the permanent address given by the petitioner was false. 10. On perusal of the records, it is seen that vide memo dated 19.01.2015, Page No.# 6/9 the Deputy Commissioner of Police (B), Kamrup (M), Guwahati had directed the concerned Sub-Inspector (B) to make an enquiry under the Foreigner’s Act, 1946 and submit his findings and in the name and particulars of the suspected foreigner, the permanent address of the petitioner at Village-Bheragaon, P.S. & District-Barpeta, Assam and the present address was disclosed as C/o. Sri Subrata Hore, son of late Bani Prasad Hore, Village-Rajani Gandha Factory, SOS Road, P.S.-Azara. The said enquiry was re-endorsed to another Sub-inspector (B) under Azara P.S. The Tribunal’s records also reveal that the concerned Sub- Inspector of Police visited the site of the temporary address of the petitioner. Two witnesses examined by the Enquiry Officer on 16.05.2013, had informed that about a month ago, the petitioner had left the factory and did not come back. The said information was informed to the competent authority to the effect that during the enquiry, it appears to him in a prima facie manner that the suspect could not be traced out and nobody knows his whereabouts and he is untraced. Accordingly, on return of the said report with the endorsement dated 29.06.2015, the reference was forwarded to the learned Foreigners Tribunal-4th, Kamrup, (M) for its opinion. 11. The reference was registered with 2 (two) addresses of the petitioner, one at Village-Bheragaon, under P.S. & District-Barpeta, and the second address was the address of Rajani Gandha Factory at SOS Road under P.S.-Azara in the district of Kamrup (M). The records of the Tribunal further reveals that notice was issued only in the projected current address of the petitioner at Rajani Gandha Factory at SOS Road, under Azara P.S., but no notice is seen to have been issued at the permanent address of the petitioner. Page No.# 7/9 12. The verification report of the Enquiry Officer, who is a Sub-Inspector of Police (B), clearly discloses that during enquiry, the petitioner was not at his temporary address. The witnesses examined by him had also stated that the petitioner had left that place. These materials were available before the learned Tribunal, despite which notice of the proceedings was issued at the temporary address without making any attempt to serve the notice at the permanent address of the petitioner, which is available on record. 13. We also notice that the process server’s report clearly discloses that the notice was duly served by pasting it on the wall of the factory. However, while returning the service report, the concerned authority of the Azara P.S., made an endorsement to the following effect- “Returned the notice unserved”. Therefore, notwithstanding that the process server gave a report which is in due compliance of Paragraph-3(5)(f) of the Foreigners (Tribunals) Order, 1964, the authority who is returning the said service report has made a clear endorsement to the effect that the notice has been “retuned unserved.” 14. Under such circumstances, there is no order of the learned Tribunal in the record as to why issuance of notice on the permanent address was dispensed with. Moreover, there is no order rejecting the endorsement made by the police authority of Azara P.S. that “notice returned unserved.” However, no attempt was made to serve notice at the first address of the petitioner. This, in the considered opinion of the Court, has vitiated the order of the learned Tribunal, by which notice was held to be duly served on the petitioner. 15. Accordingly, for non-issuance of notice at the permanent place of Page No.# 8/9 residence of the petitioner, the ex parte opinion dated 30.03.2019, is liable to be interfered with. 16. Resultantly, the impugned ex parte opinion dated 30.03.2019, passed by the learned Member, Foreigners’ Tribunal-4th, Kamrup (M), Guwahati, in F.T. Case No- FT[K(M)-4] 1435/17, arising out of FT Case No. 27/15, is hereby set aside. The matter is remanded for a fresh opinion by the learned Member, Foreigners Tribunal-4th, Kamrup (M), Guwahati. 17. As there is already a reference made against the petitioner, (a) The family members of the petitioner shall appear before the Deputy Commissioner of Police (Border), Kamrup (M), Guwahati 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. (b) Before releasing the petitioner on bail, the Deputy Commissioner of Police (Border), Kamrup (M), Guwahati shall obtain the biometrics of the iris of both eyes, the fingerprints of both hands and the photographs of the petitioner (c) The said authority shall also obtain necessary information and documentation as required under the Rules from the petitioner for securing his appearance before the learned Tribunal. 18. As a condition of bail, the petitioner is directed to appear before the learned Member, Foreigners’ Tribunal-4th, Kamrup (M), Guwahati in connection Page No.# 9/9 with F.T. Case No- FT(K(M)-4) 1435/17, arising out of FT Case No. 27/15, within 22.09.2025, without any requirement of serving any notice of appearance to the petitioner, and his written statement, produce all the documents in support of his written statement and thereafter, the learned Tribunal will fix a date for evidence of the petitioner. 19. Thereafter, steps shall be taken by the Deputy Commissioner of Police (Border), Kamrup (M), Guwahati to have the petitioner, namely, Wajuddin released from the Transit Camp, Matia at Goalpara within 19.08.2025, by taking into account the law and duty for ensuing Independence Day celebrations. 20. It is made clear that if the petitioner fails to appear before the learned Tribunal within the time allowed, it will be open to the said learned Tribunal to treat the petitioner as absent on call and pass an appropriate order by treating the petitioner absent on call. 21. In terms of the directions as contained above, this writ petition is allowed and disposed of. 22. The Registry shall return back the records that was called from the learned Foreigners Tribunal along with a copy of this order to be made a part of the record. JUDGE JUDGE Comparing Assistant