Page No.# 1/6 GAHC010156612025 2025:GAU-AS:17353-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4114/2025 JARIMAN NESSA @ JARINA KHATUN W/O SOVAN ALI @ SOBHAN ALI @ SOBAN SHEKH, D/O LATE IBRAHIM MUNSHI, R/O VILL- KAYASTHA GAON, P.O.- SORBHOG, P.S.- SORBHOG, DIST- BARPETA, ASSAM, PIN-781317 VERSUS THE UNION OF INDIA AND 6 ORS. REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI-110001 2:THE CHIEF ELECTION COMMISSIONER OF INDIA ASHOK ROAD NEW DELHI-110001 3:THE STATE OF ASSAM REPRESENTED BY ITS SECRETARY GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-781006 4:THE DIRECTOR GENERAL OF POLICE ASSAM ULUBARI GUWAHATI-781007 5:THE STATE COORDINATOR OFFICE OF THE STATE COORDINATOR OF NATIONAL REGISTER OF CITIZENS (NRC) ASSAM 1ST FLOOR Page No.# 2/6 ACHYUT PLAZA G.S. ROAD BHANGAGARH GUWAHATI-781005 6:THE DISTRICT COMMISSIONER BARPETA DIST- BARPETA ASSAM PIN-781301 7:THE SUPERINTENDENT OF POLCIE (BORDER) BARPETA DIST- BARPETA ASSAM PIN-78130 Advocate for the Petitioner : MR. A HUSSAIN, MR. K M HASSAN Advocate for the Respondent : DY.S.G.I., SC, ECI,SC, F.T,SC, ECI,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SHAMIMA JAHAN ORDER Date : 15.12.2025 (K.R. Surana, J) Heard Mr. K.M. Hassan, learned counsel for the petitioner. Also heard Mr. G. Pegu, learned CGC; Mr. G. Sarma, learned standing counsel for the FT & Border matters; Mr. M. Islam, learned counsel appearing on behalf of Mr. A.I. Ali, learned standing counsel for the ECI; and H.K. Hazarika, learned Junior 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 06.10.2022, passed by the learned Member, Foreigners’ Tribunal, Barpeta 11th, in Case No. Page No.# 3/6 (Bpt/11th) F.T. 2248/2017, arising out of IM(D)T Case No. 1086/C/98, by which the petitioner was declared as an illegal migrant. 3. Pursuant to the orders passed earlier, the records of the Tribunal is received. 4. On a perusal of the records, it is noticed that the learned Tribunal, by an order dated 17.08.2019, took notice of her medical certificate and allowed the prayer made by the learned counsel for the petitioner to exempt the petitioner from adducing oral evidence and the petitioner was allowed to examine own “relevant” witness on the next date. On 21.12.2021, the learned Tribunal had recorded in its order allowing the petitioner to be represented by her son, Habijul Islam, who was allowed to represent her. 5. In the form of deposition recorded on 21.12.2021, the learned Tribunal has recorded as follows: “Before recording the evidence of the O.P. as DW-1, the ld. counsel has brought to my notice that the O.P. is suffering from total deafness. I have also peruse the certificate file by the O.P. to that effect & therefore, hearing the ld. AGP I have allowed the O.P.’s son, Habijul Islam to represent his mother (O.P.).” 6. The Court is surprised to note that at page no.99 of the Tribunal’s record is a medical certificate dated 15.04.2018 by a doctor, private medical practitioner. The contents of the certificate are as follows: “To whom it may concern It is to certify that Mrs. Jariman Nessa is suffering from bilateral profound sensorineural hearing loss & she has been advised to use hearing aid in both ears. Her audiometry report is enclosed herewith.” 7. The Tribunal has countersigned the said medical certificate with a remark “seen” followed by an illegible signature. However, the learned Tribunal has not recorded as to whether, despite use of hearing aid in both the ears as Page No.# 4/6 prescribed, the petitioner was still deaf. 8. The medical certificate clearly mentions that the petitioner was advised using hearing aid in both the ears by a certificate dated 15.04.2018. Therefore, the recording of fact by the learned Tribunal that the petitioner was deaf cannot be accepted to be a true and correct reflection of the status of the hearing of the petitioner. The learned Tribunal has not recorded that it is an expert in assessment of hearing by the proceedee and has arrived at a conclusion which is contrary to the medical certificate dated 15.04.2018. 9. Thus, the learned Tribunal is seen to have substituted its wisdom to override the contents of the medical certificate dated 15.04.2018. In the considered opinion of the Court, the same has vitiated the proceedings. 10. It is difficult to accept that the petitioner is totally deaf as recorded in the deposition sheet by the learned Tribunal on 21.12.2021 in the absence of any medical record. It may be mentioned that as the Court could not trace out the petition dated 17.08.2019, which was handed over to the learned standing counsel for the FT and Border matters, who also could not readily find out the petition dated 17.08.2019. 11. Accordingly, despite objection being raised by the learned standing counsel for the FT and Border matters, as the Court finds procedural impropriety in the conduct of the proceeding, the Court is inclined to set aside the impugned opinion dated 06.10.2022, passed by the learned Member, Foreigners’ Tribunal, Barpeta 11th, in Case No. (Bpt/11th) F.T. 2248/2017, arising out of IM(D)T Case No. 1086/C/98. 12. At this stage, the learned counsel for the petitioner has submitted that the petitioner is about 70 years of age has been taken into custody on Page No.# 5/6 28.05.2025 and is presently lodged at Transit Camp Matia, Goalpara. 13. 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 petitioner, namely, Jariman Nessa @ Jarina Khatun 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. b. Before releasing the petitioner 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 petitioner for securing her 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. 14. Thereafter, steps shall be taken by the Superintendent of Police (Border), Barpeta to have the petitioner released from the detention centre within 3 (three) days from the date of receipt of certified copy of this order. Page No.# 6/6 15. The petitioner, on her release, shall appear before the learned Tribunal on or before 30.01.2026 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. 16. As it is important that the records are sent back on time, the Court is inclined to request the learned standing counsel for the FT and Border matters to take custody of the file and transmit it to the concerned Tribunal through the Home and Political (B) Department. The learned standing counsel for the FT and Border matters shall receive the records from the Court Master after making due endorsement. 17. As the learned Tribunal has not considered the medical certificate dated 15.04.2018, the Court is inclined to request the learned standing counsel for the FT and Border matters to forward a scanned copy of the order dated 17.08.2019, the scanned copy of the medical certificate dated 15.04.2018 (at page 99 of the records), and the deposition of DW-1 available at pages 38 and 39 of the records to the Home and Political (B) Department, so as to enable the Department to take a call as to whether periodical refresher training is required to be imparted to the learned Member of the Foreigners Tribunal. JUDGE JUDGE Comparing Assistant