Page No.# 1/6 GAHC010205162024 2025:GAU-AS:327-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5155/2024 SALAM ALI S/O- LATE SUMUR ALI, @SUMURUDDIN @SAMARUDDIN, R/O- VILLAGE KHUDRA BAMUNBORI, P.S- SARTHEBARI, DIST- BARPETA, ASSAM, PIN-781312 VERSUS THE UNION OF INDIA AND 5 ORS REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SASTRI BHAWAN, NEW DELHI- 110001. 2:THE ELECTION COMMISSION OF INDIA NEW DELHI-110001 3:THE STATE OF ASSAM REP. BY THE SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6 4:THE ASSAM STATE COORDINATOR NATIONAL REGISTER OF CITIZENS ASSAM BHANGAGARH GUWAHATI-05 DIST- KAMRUP (M) 5:THE DEPUTY COMMISSIONER BARPETA ASSAM PIN-781301 Page No.# 2/6 6:THE SUPERINTENDENT OF POLICE (B) BARPETA ASSAM PIN-78130 Advocate for the Petitioner : MR. B U LASKAR, MR. A B ACONDA Advocate for the Respondent : DY.S.G.I., GA, ASSAM,SC, ECI,SC, F.T BEFORE HON’BLE MR. JUSTICE KALYAN RAI SURANA HON’BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER 08.01.2025 (K. R. Surana, J.) Heard Mr. B. U. Laskar, learned counsel for the petitioner. Also heard Mr. B. Chakraborty, learned CGC, appearing for respondent No. 1, Ms. P. Baruah, learned counsel for the respondent No. 2, Mr. G. Sarma, learned Standing Counsel for the Home Department and FT matters, representing respondent Nos. 3, 4 and 6 and Mr. H. K. Hazarika, learned Government Advocate, appearing for respondent No. 5. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the ex parte opinion dated 29.01.2022, passed by the learned Member, Foreigners’ Tribunal - III, Barpeta, in connection with FT Case No. 14(III)/2019 Reference No. 328/2001, by which the petitioner was declared to be a foreigner of post 25.03.1971 stream. 3. The learned counsel for the petitioner has submitted that, notwithstanding that some Page No.# 3/6 adjournments were taken by the petitioner in the proceedings, on 29.01.2022, for default on the part of the petitioner to appear before the learned Tribunal, the ex parte order was rendered instantaneously on 29.01.2022. It is submitted that said period was a COVID- 19 pandemic period. 4. It is also submitted that the petitioner is a day labourer and pursuant to the impugned opinion, the petitioner was apprehended on 02.09.2024 and he is presently lodged in the Transit Camp, Matia, Goalpara. The learned counsel for the petitioner prays for one opportunity to the petitioner to contest the proceedings as the petitioner has sufficient documents to disprove that he is a foreigner. 5. The learned Standing Counsel for the Home Department and FT matters, has opposed the prayer made in the writ petition, on the ground that the records received from the learned Tribunal reveal that lot of adjournments were taken by the petitioner in course of the proceedings and the petitioner has deliberately not filed any written statement or any documents to show that he is not a foreigner. Accordingly, it is submitted that the petitioner does not deserve any leniency. 6. Perused the records received from the learned Tribunal and also considered the submissions made by the learned counsel for the petitioner as well as the learned Standing Counsel for the FT matters. 7. We take note of the fact that the period between 15.03.2020 till 28.02.2022, is generally accepted as a period of COVID-19 pandemic. As per the records, the petitioner Page No.# 4/6 after appearing before the learned Tribunal, has taken adjournments on 04.02.2020, 24.02.2020, 11.05.2020, 13.11.2020, 06.01.2021, 20.03.2021, 25.05.2021, 10.09.2021, 20.10.2021 and 26.11.2021, which were allowed. However, as the petitioner remained absent on 29.01.2022, the ex parte opinion was rendered. 8. According to the Foreigners’ (Tribunals) Order, 1964, under para-3 (8) thereof, the proceedee is required to be given only 10 days’ time to reply to the show cause notice and further 10 days’ time to produce evidence in support of his case. Therefore, this is a clear case of default on the part of the petitioner to participate in the proceedings by filing reply to the show cause notice. 9. Be that as it may, the impugned opinion was rendered on the date of 29.01.2022, which falls within the COVID-19 pandemic period and, therefore, the Court is of the considered opinion that the petitioner be given one opportunity to file his written statement. It is made clear that if the petitioner fails to file written statement within the time allowed by the learned Tribunal and fails to produce evidence within the time allowed by the learned Tribunal, it would be open to the learned Member, Foreigners’ Tribunal-III, Barpeta, to pass a fresh opinion by treating the petitioner to be absent on call. 10. Accordingly, to enable the petitioner to contest the proceedings, the impugned opinion dated 29.01.2022, passed by the learned Member, Foreigners’ Tribunal - III, Barpeta, in connection with FT Case No. 14(III)/2019 Reference No. 328/2001, is Page No.# 5/6 hereby set aside. 11. Be that as it may, as the petitioner is apprehended and now, he is lodged in the Transit Camp, Matia, Goalpara, this Court is of the considered opinion that the applicant may be released on the following conditions:- i) 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 one surety of the like amount to the satisfaction of the said authority. ii) 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. iii) The said authority shall also obtain necessary information and documentation as required under the Rules from the applicant for securing his presence. 12. Thereafter, steps shall be taken by the Superintendent of Police (Border), Barpeta, to have the applicant released from the detention centre within 3 (three) working days from the date of receipt of certified copy of this order. 13. As a further condition of bail, the applicant is directed not to leave the territorial jurisdiction of Superintendent of Police (Border), Barpeta, without prior written intimation to the said authority, failing which, it would be open to the Superintendent of Police (Border), Barpeta, to move this Court for cancellation of bail. Page No.# 6/6 14. It is provided that the petitioner on being released on bail, shall appear before the the learned Member, Foreigners’ Tribunal - III, Barpeta, on or before 17.02.2025 and on that date, he shall file his written statement and produce all the documents in support of the written statement and thereafter, the learned Tribunal will fix another date for filing the evidence of the petitioner. On this date, the petitioner shall positively file evidence on affidavit and take such other steps, as may be required in accordance with law. 15. As this order is passed under the circumstances unique to this case, this order is not intended to be cited as a precedent in any other matter. 16. Writ Petition is allowed to the extent as indicated above. 17. There shall be no order as to cost(s). 18. Registry shall send back the records to the concerned learned Tribunal. JUDGE JUDGE Comparing Assistant