Page No.# 1/6 GAHC010013472018 2025:GAU-AS:6512 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/426/2018 ROHI DAS RAY S/O LT. DUKHIRAM RAY VILL- SHOLAGAON P.S. BOKO DIST. KAMRUP, ASSAM VERSUS UNION OF INDIA REP. BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, TILOK MARG, NEW DELHI-1 2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM DEPARTMENT OF HOME DISPUR GUWAHATI-6 3:THE DEPUTY COMMISSIONER OF KAMRUP (R) P.O. AMINGAON DIST. KAMRUP ASSAM 4:THE SUPERINTENDENT OF POLICE (B) P.O. AMINGAON DIST. KAMRUP (R) 5:THE ELECTION COMMISSIONER OF INDIA Page No.# 2/6 NEW DELHI-1 6:THE ASSAM STATE CO-ORDINATOR OF NRC BHANGAGARH GUWAHATI- Advocate for the Petitioner : MR. A R SIKDAR, MR. A ALI Advocate for the Respondent : ASSTT.S.G.I., BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER Date : 21.05.2025 (K.R. Surana, J) Heard Mr. A.R. Sikdar, learned counsel for the petitioner. Also heard Ms. K.M. Phukan, learned CGC; Mr. M. Islam, learned counsel appearing on behalf of Mr. A.I. Ali learned standing counsel for the ECI; Ms. G. Sharma, learned standing counsel for the FT matters and NRC; and Mr. P Sarma, 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 30.10.2017, passed by the learned Member, Foreigner’s Tribunal No.2, Kamrup (R), Boko, Assam in BFT Case No. 691/2016, by which it was held that the petitioner was not an Indian national and was found to be a foreigner. 3. The proceeding against the petitioner was registered on receipt of a reference by the Superintendent of Police (Border), Kamrup (R), Amingaon, suspecting the petitioner to be a foreigner. Upon service of notice dated Page No.# 3/6 15.02.2017, the petitioner had submitted his written statement, denying that he was a foreigner and claimed to be an Indian national and in support of his stand, the petitioner had annexed 9 (nine) documents and also projected that the correct name of his father was Dukhiram Ray but his name was wrongly mentioned as Dukhilal Ray in the voter list of 1966. The evidence-on-affidavit filed on 15.09.2017, is a replication of the petitioner’s written statement and as per its contents, the petitioner had annexed photocopies of 9 (nine) documents as Annexure-1 to Annexure-9, viz., (i) photo-certified copy of voter list of 1966, (ii) photo-certified copy of voter list of 1970, (iii) photocopy of NRC of 1951, (iv) photocopy of voter list of 1985, (v) photocopy of voter list of 2007, (vi) photocopy of voter list of 2012, (vii) photocopy of Gaonburah’s certificate, (viii) petitioner’s affidavit, (ix) photocopy of Elector Photo Identity Card. Along with the evidence-on-affidavit, the DW-2 had annexed a photocopy of Gaonburah’s certificate as Annexure-1. 4. It may be mentioned that as per the record of the learned Tribunal, the evidence-on-affidavit of the petitioner as DW-1 and of one Sri Naresh Mondal, Gaonburah are recorded to have been filed vide serial nos. 57 and 58 dated 15.09.2017. As per the order dated 13.10.2017, the cross- examination of DW-1 and DW-2 were recorded on that date and the evidence was closed and the matter was heard. However, the presence of the Asstt. Govt. Pleader (AGP for short) is not recorded in the order dated 13.10.2017. Yet, the presence of the A.G.P. is recorded only in the impugned opinion dated 30.10.2017. 5. It may also be mentioned that the order-sheet contains no order wherein it is mentioned when and in what manner any documents were exhibited. As per the Tribunal’s record, the documents are marked as exhibits in Page No.# 4/6 the following order, viz., (i) Gaonburah’s certificate (Ext.G) (page 19), (ii) certified copy of electoral roll of 1966 (Ext.A) (page 22-23), (iii) certified copy of electoral roll of 1970 (Ext.B) (page 24-25), (iv) copy of Panchayat election voter list of year 2012 (Ext.F) (page 28-30), (v) copy of page-9 of the voter list of village- Shola, P.S. Boko, Mouza- Chamaria (Ext.D) (page 31), (vi) copy of panchayat election voter list of the year 2007 (Ext.E) (page 34), (vii) photocopy of Elector Photo Identity Card (Ext.I) (page 55), (viii) affidavit sworn by the petitioner on 31.05.2017 (Ext.H) (page 56-57), (ix) photocopy of NRC of 1951 (Ext.J) (page 61). All the said exhibits are found to be signed by the learned Member, Foreigner’s Tribunal No.2, Kamrup, Boko. 6. The relevant part of the impugned opinion whereby the evidence of the DW-1 and DW-2 were rejected is quoted below:- “In the instant case Ld. A.G.P has raised the point that in evidence affidavit submitted by the Proceedee the documents are not properly exhibited and the documents submitted by the Proceedee are not proved in original which is a major loophole on the part of the Proceedee. Even the Photostat copy of the documents are not identified by the Ld counsel of the opposite party and himself. In the cross examination of D.W.2, the gaonburah of the birthplace of the opposite party has stated that he has not seen the voter list of the Proceedee and that he has issued the certificate in favour of the opposite party based on the Land document in the name of the father of the Proceedee. But, the Proceedee has nowhere mentioned about the land document in the name of his father. Only in the cross examination of D.W.2, the gaonburah has stated about the land document. I have gone thoroughly the entire record and have found that the opposite party has casted his vote in the years of 1985, 2007 and 2012. There is a gap period of 22 years from 1985 to 2007 during which the opposite party has not casted vote and the reason why his has not casted vote is also not mentioned by the opposite party. Thus due to improper and insufficient documents and from the materials found available in record naturally suspicion arises regarding the nationality of the opposite party in this country. Thus he has not been able to prove his case by sharing proper oral and documentary evidences.” 7. There is nothing on record to show that when the documents Page No.# 5/6 were marked as exhibits by the learned Tribunal, any objection was raised as to the mode and/or manner of proof. Moreover, the learned Tribunal has not given any finding as to which of the exhibited documents were photocopies. As mentioned hereinbefore, there is also no record to show who had cross- examined the DW-1 and DW-2. In the opinion, none of the exhibited documents have been discussed before rejecting the evidence of the petitioner and DW-2. 8. From the part of the impugned opinion, which is extracted hereinbefore, the learned Tribunal had merely recorded that suspicion arises regarding the nationality of the petitioner. In this regard, it is well settled that mere suspicion of the learned Tribunal, howsoever strong, cannot substitute as a failure on part of the petitioner to discharge his burden of proof as provided under Section 9 of the Foreigners Act, 1946. 9. In the order dated 13.10.2017, as there is no mention about the presence of the learned A.G.P., it is not clear that who had done the cross- examination of the DW-1 and DW-2. 10. Thus, the Court is of the unhesitant opinion that the decision making process of the learned Foreigners Tribunal is vitiated because the said learned Tribunal (i) had failed to discuss the exhibited documents; (ii) failed to identify which of the exhibited documents were photocopies and which exhibited documents were original; (iii) failed to record who had conducted cross-examination of DW-1 and DW-2; (iv) discarded the evidence on a mere suspicion without expressing which document gave rise to such suspicion. 11. Accordingly, the impugned opinion is not found sustainable on facts and in law and resultantly, the said opinion dated 30.10.2017, passed by the learned Member, Foreigner’s Tribunal No.2, Kamrup (R), Boko, Assam in BFT Page No.# 6/6 Case No. 691/2016, is set aside. 12. The matter is remanded back to the said learned Tribunal from the stage of evidence and for a fresh decision in accordance with law. Accordingly, the proceeding of BFT Case No. 691/2016, is restored to the file of the learned Member, Foreigner’s Tribunal No.2, Kamrup (R), Boko. 13. The petitioner, who is represented by his learned counsel, shall appear before the said learned Tribunal on or before 23.06.2025, without requirement of any notice of appearance to be served on him and file his fresh evidence-on-affidavit within 7 (seven) days thereafter. 14. In the event the petitioner, namely, Rohi Das Ray fails to appear within the time allowed, it would be open to the said learned Tribunal to treat the petitioner as absent on call and pass a fresh opinion in accordance with law. 15. The Registry shall expeditiously return back the Tribunal’s records alongwith a copy of this order to be made a part of the records by the said learned Tribunal. 16. Nothing in this order shall prejudice the parties when the matter is decided afresh by the said learned Tribunal. JUDGE JUDGE Comparing Assistant