Page No.# 1/6 GAHC010035862017 2025:GAU-AS:13786-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5071/2017 AYESHA KHATUN W/O. RAFIKUL RAHMAN, VILL. THAISUBALI, P.S. LANKA, DIST. HOJAI, ASSAM. VERSUS THE UNION OF INDIA and 5 ORS. TO BE REP. BY SECY. TO THE GOVT. OF INDIA, HOME DEPTT., NORTH BLOCK, NEW DEHLI. 2:STATE OF ASSAM TO BE REP. BY COMM. and SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI-06. 3:ADDL. DIRECTOR GENERAL OF POLICE ASSAM BORDER BHANGAGARH GUWAHATI-05. 4:DY. COMMISSIONER HOJAI SHANKARDEVNAGAR ASSAM. 5:SUPERINTENDENT OF POLICE BORDER NAGAON Page No.# 2/6 ASSAM. 6:SUPERINTENDENT OF POLICE BORDER HOJAI ASSAM Advocate for the Petitioner : MR.N ISLAM, MR.K MIRA,MR.N H MAZARBHUYAN,MS.L WAZEEDA Advocate for the Respondent : , ASSTT.S.G.I.,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER (Oral) Date : 13.10.2025 (K.R. Surana, J) Heard Mr. M.H. Saikia, learned counsel for the petitioner. Also heard Mr. A.K. Dutta, learned CGC; Mr. A.I. Ali, learned standing counsel for the ECI; Mr. G. Sharma, learned standing counsel for the FT matters and NRC; and Mr. H.K. Hazarika, learned Junior Govt. Advocate for respondent. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned opinion dated 28.07.2017, passed by the learned Member, Foreigners’ Tribunal, Nagaon No. 7th at Lanka, in F.T./L/Case No. 409/2016, arising out of SP’s Case No. 774/2014, by which the petitioner was declared as an illegal migrant. 3. In view of the discrepancy in the Trial Court record which has come to the notice of the Court in course of hearing, the pleadings and evidence on record have not been referred to in this order. 4. In paragraph no. 6 of the impugned opinion, the learned Tribunal has Page No.# 3/6 recorded as follows:- In support of the case the OP/DW-1, her fathter namely, Abdul Nur Borbhyan @ Abdul Nur is also present in the Court and gave his depositions as DW-2 supporting the Indian Nationality of his own and the OP herein. The DW-1 and DW-2 were cross examined. I have carefully perused the documents exhibited by the OP/DWs and also scrutinized the same as well. 5. On a perusal of the Tribunal’s records, it is seen that the evidence-on- affidavit by petitioner as DW-1 was sworn before the Notary on 28.07.2016 and was filed before the learned Tribunal on 28.07.2016, which can been seen from the cancellation of the Court fee stamps. The said record is available at page no. 22 of the Tribunals records. The Tribunals questions to DW-1 was recorded on 26.04.2017, at the back page at page no. 1 and 2 of the evidence-on-affidavit of DW-1. The evidence- on-affidavit by DW-2 is sworn before the Notary Public on 12.08.2016, which is available at page no. 29 of the Tribunals records. Although the Court fee stamps is shown to be cancelled, but there is no numbering, signature or date of cancellation of the Court fee stamps. The presentation of the evidence-on-affidavit of DW-2 could not be seen reflected in any of the orders passed by the learned Tribunal in its order sheet. It may be mentioned that as per order dated 28.07.2016, the learned Tribunal had recorded that the evidence-in-chief without any supporting documents was filed. The order passed on 28.07.2016 to 12.06.2017, are quoted below:- “28/07/2016 The Ld. Adv. is present today and submitted affidavit in chief without any support documents. for the next date will examination in chief. fixed on 29/08/2016. 29/08/2016 The Ld. Adv. is present today and filed petition no. 1442/16 for examination in chief. Fixed on 05/10/2016. Page No.# 4/6 05/10/16 The O.P. is absent today and the Ld. Adv. filed P/No 1689/16 praying time to present in the Court. for examination in chief. Prayer is allowed. Fixed on 18/11/2016. 18/11/2016 The Ld. Adv. filed hazira only for examination in chief. fixed on 21/02/2017. 21.2.2017 The OP party is present today along with her counsel. But due to some abnormal behavior showed by his proceeding has to stop halfway. Fixed on 18.3.17. 18.03.17 The OP is absent today. The ld counsel for he OP filed a hazira. The case is adjourned today. Fixed on 26.4.17. 26.4.17 The OP/DW-1 is present today along with her counsel…….. (illegible) Tribunal put some relevant question to the OP which she answered on ……… (illegible) in the absence of the Govt Pleader. Evidence……….(illegible) Fixed on 19.5.17. 19.5.17 The OP is absent today. The ld. Counsel for the OP filed a petition No. 2946/17 praying time stating some unavoidable circumstances. Prayer is allowed. Fixed on 12.6.17. 12.6.17 The OP is present by her…..(illegible) engaged Ld. Counsel……. (illegible)……..an OP’s claim. Heard the ld. Counsel appeared. Fixing the next date for argument.” 6. There is a reference to the filing of petitions in order dated 29.08.2016 and 05.10.2016. However, those 2 (two) petitions which are available at Page no. 44 and 45 of the Tribunals records are mere petitions for adjournment. 7. Therefore, from the orders as quoted hereinbefore passed by the Page No.# 5/6 Tribunal, they do not reflect the acceptance of the evidence-on-affidavit of the DW-2. Moreover, the Tribunals records which as read with the assistance of the learned standing counsel for the FT matters did not disclose the availability of record of cross-examination of DW-2, which is also not reflected in any of the orders quoted hereinbefore. 8. Resultantly, the opinion which is based on the appreciation of cross- examination of DW-2, and coupled with the fact that the evidence-on-affidavit of DW-2, which is also not found to be accepted in any of the orders passed by the learned Tribunal, the impugned opinion dated 28.07.2017, is found to be vitiated on non-application of judicial mind. 9. Resultantly, the Court constrained to set aside the impugned opinion dated 28.07.2017, passed by the learned Member, Foreigners’ Tribunal, Nagaon No. 7th at Lanka, in F.T./L/Case No. 409/2016, arising out of SP’s Case No. 774/2014. 10. Resultantly, the matter is remanded back for a fresh opinion after acceptance of the evidence-on-affidavit by DW-2 by the learned Tribunal, and after giving an opportunity to the DW-2 to appear for his cross-examination. 11. The petitioner, who is represented through her learned counsel, is directed to appear before the learned Member, Foreigners’ Tribunal, Nagaon No. 7th at Lanka positively on or before 07.11.2025 and by producing a certified copy of the order, await further instructions/ order to be passed by the said learned Tribunal. 12. It is made clear that in the event the petitioner does not appear before the dated fixed hereinbefore, 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. Page No.# 6/6 13. Registry shall send back the records of the Tribunal expeditiously back to the concerned learned Tribunal. 14. Having noticed that for a procedural lapse of the learned Tribunal, the matter had to be remanded back by upsetting an opinion rendered on 28.07.2017, it is expected that the Foreigners Tribunals in the State, before passing an opinion, should at least examine if the records are in order and the evidence filed by the DW’s/ proceedee and their witnesses have been accounted for in the order sheet including as to whether the witnesses have been cross-examined by Additional Govt. Pleader or examined by the Tribunals in exercise of power under Section 168 of the Bharatiya Sakshya Adhiniyam, 2023, and thereafter proceed to render an opinion in accordance with law. 15. Accordingly, we request the learned standing counsel for the FT and Border matters to transmit a downloaded copy of the order to the Home and Political (B) Department so that it can be circulated to all the Foreigners Tribunals in the State. 16. The writ petition is disposed of. JUDGE JUDGE Comparing Assistant