Page No.# 1/13 GAHC010039282024 2026:GAU-AS:10694-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/1096/2024 GITA BOSE @ GEETA BASU @ GITA DAS BASU @ GITA DAS W/O- SWAPAN BOSE, D/O- LATE NEPAL CHANDRA DAS @NEPAL CHANDRA NATH, R/O- VILLAGE NO-1 ADABARI, P.S- CHARIDUAR, DIST- SONITPUR, ASSAM VERSUS THE UNION OF INDIA AND 5 ORS REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, GRIHA MANTRALAYA, NEW DELHI- 110001. 2:THE STATE OF ASSAM REP. BY THE SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6 3:THE ELECTION COMMISSION OF INDIA REP. BY THE CHIEF ELECTION COMMISSIONER OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI-110001 4:THE STATE COORDINATOR NATIONAL REGISTER OF CITIZENS ASSAM BHANGAGARH GUWAHATI-05 DIST- KAMRUP (M) Page No.# 2/13 5:THE DEPUTY COMMISSIONER P.O- TEZPUR DIST- SONITPUR ASSAM PIN-784001 6:THE SUPERINTENDENT OF POLICE (B) P.O- TEZPUR DIST- SONITPUR ASSAM PIN-78400 Advocate for the Petitioner : MR. S C BISWAS, MR. A K DAS,MS. S DEBNATH,MS. R DEVI,MS. J GHOSH,MS A BORAH,MS A DAS,MR. F A HASSAN,MR. P S BISWAS,MR D BANIA Advocate for the Respondent : DY.S.G.I., GA, ASSAM,SC, ECI,SC, F.T BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 03.08.2026 (K.R. Surana, J) Heard Mr. F.A.Hasan, learned counsel for the petitioner. Also heard Ms. P. Lamhu, learned counsel, appearing on behalf of Mr. B. Kaushik, learned CGC; Mr. G. Sarma, learned standing counsel for NRC, Border and FT matters; Mr. P. Sarmah, learned Addl. Senior Government Advocate for the State; and Mr. A.I.Ali, learned standing counsel for the ECI. 2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the opinion dated 29.11.2021, passed by the learned Member, Foreigners Tribunal 7th, Tezpur at Balipara, in Case No. F.T. 432/2016 [arising out of Ref. No. TZP(B)/10/1332 dated 20.04.2010], by which Page No.# 3/13 the petitioner, namely, Smti Gita Bose @ Geeta Basu @ Gita Das Basu @ Gita Das was declared to be a foreigner of post 25.03.1971 within the meaning of Section 6A of the Citizenship Act, 1955. 3) The petitioner had entered appearance on service of notice and filed her written statement and thereafter, filed her evidence-on-affidavit as DW- 1. She had also examined three other witnesses as DW-2, DW-3 and DW-4. 4) In defence, the case of the petitioner was that her father, late Nepal Ch. Das @ Nepal Ch. Nath, son of late Satish, was an inhabitant of Village- New Colony (Pandu), Mouza- Ramcharani, P.S. Jalukbari, Dist. Kamrup (Metro) and he was a voter since 1971, but his surname was wrongly written as Nath instead of Das and the name of her mother, Arali Das was wrongly written as Renubala Nath, but the name of her grandmother was correctly written as Monibala Das. He was an employee of Indian Railway since 1955 and retired in the year 1992 and died in the year 1993. The petitioner was born on 08.07.1969 and she had stated that her link can be established with her father from HSLC Admit Card. Her mother, Aarti Das and three sisters, namely, Munni Das, Ruma Das and Jhuma Das are alive and their names have appeared in the NRC. Her two brothers, Dilip Das and Tinku Das have expired. She was married on 01.05.1994, and is living at her matrimonial home and since her marriage, she has changed her title from Das to Bose. She has no document of her marriage, but a writing prepared in customary manner. Before marriage, she had cast her vote at her parental home in the year 1989 and after marriage, she has been casting her vote at her present address. She is an employee of I.C.D.S., as Anganwadi Worker and is also a Booth Level Officer under Election Commission of India. She had prayed for dismissing the proceeding. 5) The petitioner, in her evidence-on-affidavit, had reiterated her Page No.# 4/13 statements made in her written statement and she had exhibited the following documents: - a. Pension book of her father (Ext.I). b. Certified copy of Electoral roll of 1971 (Ext.II). c. Certified copy of Electoral roll of 1979 (Ext.III). d. Certified copy of Electoral roll of 1989 (Ext.IV). e. HSLC Admit Card (Ext.V). f. HSSLC Admit Card (Ext.VI). g. Marriage document (Ext.VII). h. Certified copy of Electoral roll of 1997 (Ext.VIII). i. Certified copy of Electoral roll of 2005 (Ext.IX). j. Certified copy of Electoral roll of 2009 (Ext.X). k. Certified copy of Electoral roll of 2013 (Ext.XI). l. Certified copy of Electoral roll of 2016 (Ext.XII). m. Certified copy of Electoral roll of 2019 (Ext.XIII). n. Aadhaar Card (Ext.XIV). o. PAN Card (Ext.XV). p. Elector Photo Identity Card (Ext.XVI). q. Petitioner’s Identity Card issued by C.D.P.O., Balipara (Ext.XVII). r. Petitioner’s Identity Card as Booth Level Officer, issued by Election Commission of India (Ext.XVII). s. NRC Extract dated 30.07.2018 (Ext.XIX) 6) The projected mother of the petitioner, namely, Aarti Das, was examined as DW-2, who by filing her evidence-on-affidavit, had reiterated the statements made by the petitioner. She had exhibited the following documents: - a. Death Certificate of Nepal Ch. Das (Ext.I). b. Elector Photo Identity Card (Ext.II). c. PAN Card (Ext.III). d. Pension Payment Order (Ext.IV). 7) The learned Tribunal had disbelieved the evidence of DW-1 and DW-2 and held that the petitioner had failed to establish her link with her projected parents whose existence was in India before 25.03.1971 and Page No.# 5/13 accordingly, the petitioner was declared to be a foreigner of post 25.03.1971. 8) The learned counsel for the petitioner had made his submissions to support the challenge to the writ petition and the learned counsel for the Border and FT matters had made his submissions in support of the impugned opinion. 9) Examined the Tribunal’s records, which was called for. Also considered the submissions made at the Bar. 10) The learned Tribunal, vide the impugned opinion, discarded the pension payment order (Ext.I) as a private document, which was not proved by calling the issuing authority. The voter list of 1971 (Ext.II), voter list of 1979 (Ext.III) and voter list of 1989 (Ext.IV) were discarded on the ground that the issuing authority was not examined. Moreover, the said voters lists were also discarded on the ground that the petitioner had not explained why Nepal Ch. Nath, who casted vote in 1971 from No. 58 East Guwahati LAC had shifted to 51 Jalukbari LAC. The said part of the finding is ex facie wrong and perverse. 11) As regards the pension payment order (Ext.I) is concerned, a pension payment order cannot be said to be a private document because the said document is issued by a competent authority of the NF Railway, which is a Government of India establishment under the Ministry of Railways and the said document enables the person concerned to draw his/her pension from the concerned Treasury/ authority to which it is issued by the NF Railway authority. 12) Moreover, the Pension Payment Order (Ext.I) contains a joint photograph of the projected father and mother of the petitioner. The petitioner had examined her projected mother as DW-2. Neither the Govt. Pleader nor the learned Tribunal had even gave a suggestion to DW-2 that she was not the Page No.# 6/13 person whose photograph was affixed in Ext.I. 13) In so far as rejection of the voters lists of 1971, 1979 and 1989 is concerned, the voter list of 1971 (Ext.II) is of Village- Pandu Town (New Colony); 1979 (Ext.III) is of Anchal- New colony; and 1989 (Ext.IV) is of Village- New Colony. As per Ext.I, the projected father of the petitioner was a Railway employee and New Colony has a Railway Colony and is located close to Pandu and Adabari. Therefore, the learned Tribunal, partly read the said three voters lists and had referred only to the name of the Legislative Assembly Constituency. However, the learned Tribunal had failed to peruse the name of the village, which is same in all the said three voters lists. Therefore, the presumption drawn by the learned Tribunal that the petitioner had not explained why her father has shifted from 58, East Guwahati LAC to 51 Jalukbari LAC in 1979, is without any basis because the learned Tribunal had utterly failed to see that the village where the projected father of the petitioner is a resident, is same. Consequently, there appears to be no reason to doubt the voter lists due to difference in name of voter Nepal Ch. Nath and Nepal Ch. Das, with change in constituency, which is also without appreciation of the names of the village of the said voters’ lists. Incorrect and partial reading of the said voters’ lists makes the appreciation of evidence relating to Ext.II, Ext.III and Ext.IV perverse. 14) The learned Tribunal had also rejected the voter lists of 1979 (Ext.III) and 1989 (Ext.IsV) also on the ground that the petitioner has not explained why the house number has changed. The said finding is again wrong and perverse, as per the Election Manual, the Election Commission of India, before notifying an election, carries out a massive exercise for enumeration of voters of every constituency, depending on whether the elections are for State Legislative Assembly or for Parliamentary Constituency, wherein the house Page No.# 7/13 numbering are done by the enumerators. The learned Tribunal has not referred to any Act, Rule, Notification or administrative instructions, which requires that once a house number is given, the same will remain constant in all elections. The Admit Card of HSLC (Ext.V) and HSSLC (Ext.VI) were discarded as the pre- 1971 existence of the projected father of the petitioner was not proved. The marriage document (Ext.VII) was rejected as not relevant. The other voter lists of 1997 (Ext.VIII), 2005 (Ext.IX), 2009 (Ext.X), 2013 (Ext.XI), 2016 (Ext.XII), and 2019 (Ext.XIII) were discarded as those were not proved by calling issuing authority and in this regard, reliance was placed on the case of Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC 745. Moreover, the learned Tribunal had expressed a view that in modern computer technology, fake documents can be created. 15) The issue of proving of certified copy of electoral rolls is taken up now. The case of Narbada Devi Gupta relates to creation of tenancy on the basis of stamp papers, where the signatures were not disputed. Therefore, the case of Narbada Devi Gupta was regarding private document, whereas in the present case, the petitioner had exhibited certified copy of voter lists, which is a certified copy of a public document. Therefore, the decision of the Supreme Court of India in the case of Narbada Devi Gupta (supra) had no application under the distinguishable facts of the case. 16) Moreover, in the impugned opinion, the learned Tribunal had expressed a doubt that fake document can be created. In the considered opinion of the Court, if the learned Tribunal had any iota of doubt regarding genuineness of a certified copy, as the petitioner is suspected to be an illegal migrant/foreigner, the learned Tribunal should have called for verification of the exhibited certified copy through the Superintendent of Police (Border), Sonitpur, Page No.# 8/13 Tezpur. The learned Tribunal did not put any question to the petitioner under Section 165 of the Evidence Act, 1872 and the State had not cross-examined DW-1 and DW-2. Therefore, only because the learned Tribunal had a doubt in respect of certified copies of several voter’s list voters’ lists exhibited by the petitioner,the certified copies of voters’ lists (Ext.VIII to XIII) could not have been rejected by the learned Tribunal. It is too well settled that doubt, no matter how strong, cannot be a substitute for evidence. The rejection of the said certified copies of voters’ lists (Ext.VIII to Ext.XIII) by the learned Tribunal is not found sustainable on facts and in law. 17) The issue relating to certified copy of the voter lists has elaborately been dealt with and explained by this Court in the case of Isiran Nessa v. Union of India & Ors., (2019) 4 GLT 685: 2020 (3) GLT 531: (2018) 0 Supreme(Gau) 1677. Paragraph nos. 18 to 22 thereof, as extracted from (2018) 0 Supreme(Gau) 1677, are quoted below:- 18. Petitioner filed as many as eight documents, which were marked as Exts.-A to G. We will take up Exts.-A to D first. Ext.-A is a translated copy of electoral roll for the year 1966 in respect of Abhayapuri Constituency.Here, the three voters were, viz, Monser Ali, son of Sahar Munshi, aged 32 years; Amiran Nessa, daughter of Sahar Munshi, aged 22 years; and Indar Ali, son of Sahar Munshi, aged 21 years. They were shown as residents of village Balarpet under North Salmara Police Station in the erstwhile district of Goalpara (in the present district of Bongaigaon). Likewise, Ext.-D is a translated copy of electoral roll of Abhayapuri Constituency for the year 1970. Here the two voters are Monser Ali, son of Sahar Munshi, aged 36 years; and Amiran Nessa, daughter of Sahar Munshi, aged 26 years and that name of Indar Ali is conspicuous by his absence. Exts.-A and D are translated copies of electoral rolls of 1966 and 1970. Question for consideration is whether a translated copy of electoral roll can be construed as an admissible piece of evidence? Further question is whether translated copy can be considered as a certified copy and, thus, an admissible piece of evidence. 19. Black's Law Dictionary 6th Edition has defined certified copy to mean a copy of a document or record signed and certified as a true copy by the officer to Page No.# 9/13 whose custody the original is entrusted. Section 61 of the Indian Evidence Act, 1872 (‘Evidence Act’) deals with proof of contents of documents. Contents of documents may be proved either by primary evidence or by secondary evidence. While primary evidence is explained in section 62; section 63 deals with secondary evidence. As per section 63, secondary evidence means and includes certified copies, copies made from the original by mechanical process ensuring accuracy of the copy and copies compared with the original; copies made from or compared with the original, etc. 20. Section 65 deals with cases in which secondary evidence relating to documents may be given. It says that secondary evidence may be given of the existence, condition or contents of a document in the cases mentioned therein from clauses (a) to (g). As per clause (e) thereof, secondary evidence may be given when the original is a public document within the meaning of section 74. 21. Section 74 explains as to what are public documents and section 76 deals with certified copies of public documents. As per section 76, every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees, therefore, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof and such certificate shall be dated and subscribed by such officer with his name and his official title and shall be sealed whenever such officer is authorized by law to make use of a seal. Such copy so certified shall be called certified copies. 22. On a careful and conjoint reading of the aforesaid provisions of the Evidence Act together with the definition of certified copy, we are of the unhesitant view that a translated copy such as, Exts.-A and D cannot be construed as certified copies and, therefore, cannot be treated as secondary evidence. This position is further strengthened if we look at Exts.-A and D because there is no certification by the competent authority certifying that the extracts are true copies from the original. We may also observe that though certified copies are admissible as secondary evidence, it would be so only if those are issued by the competent authority. Admission of photostat copies, even if attested by Notary Public, is improper and inadmissible in evidence under section 63 of the Evidence Act. That apart, certified copies of documents (not to speak of photostat copies) not coming within the ambit of clause (a) or (e) of section 65 would not be admissible in evidence. That apart, as a general principle, secondary evidence is not admissible until non-production of primary evidence is satisfactorily accounted for. In addition, we may also refer to section 66 of the Evidence Act, as per which, secondary evidence of the contents of documents shall not be given unless the party proposing to give such secondary evidence had previously given to the party in Page No.# 10/13 whose possession or power the document is such notice to produce it as is prescribed by law. In other words, a party desirous of adducing secondary evidence must not only satisfactorily explain non-production of primary evidence but also must give previous notice to the party who is in possession of the primary evidence and if despite such notice, the primary evidence is not produced before the Tribunal by the custodian of the primary evidence, in such a situation, Tribunal may invoke its power under order 4 of the Foreigners (Tribunals) Order, 1964 to issue summons to the custodian of the primary evidence and not as a matter of course. 18) In the exhibited voters lists of 1971 (Ext.II), 1979 (Ext.III), 1989 (Ext.IV), 1997 (Ext.VIII), 2005 (Ext.IX), 2009 (Ext.X), 2013 (Ext.XI), 2016 (Ext.XII), and 2019 (Ext.XIII) clearly disclose that all those were certified copies of voters’ lists. The learned Tribunal has not referred to the provision of any Act, Rules, Notification, or administrative order, whereby a certified copy of the voters list are not to be treated as a public document within the meaning Section 74 of the Evidence Act, 1872. 19) Thus, the learned Tribunal is held to have applied the case of Narbada Devi Gupta (supra), wrongly in this case. From the decision of this Court in the case of Isiran Nessa (supra), there is no iota of doubt that none of thevoters’ lists exhibited by the petitioner were a public document within the meaning of Section 74 of the Evidence Act, 1874 and could have been proved without summoning the issuing authority. 20) The procedure adopted in this case for conducting the proceeding appears to be not in accordance with the usual practice and procedure. The learned Tribunal, in its order dated 20.02.2020, had recorded that DW-1 and DW-2 were cross-examined. However, the presence of the learned Govt. Pleader/Advocate is recorded only in the order dated 04.02.2020 and 21.11.2020 and in no other date. However, in the impugned opinion, the learned Tribunal had recorded as follows:- Page No.# 11/13 “The proceedee herself made an oral evidence as DW3 and affidavit in evidence as DW1 and her mother evidence DW2 and DW4 are all perused …”. 21) Hence, on a comparative reading of the said part of the impugned opinion and the order dated 20.02.2020, it is evident that the order passed on 20.02.2020, reflecting that DW-1 and DW-2 were cross-examined is factually incorrect. Be it mentioned that in the order dated 20.02.2020, there is no mention that who had cross-examined DW-1 and DW-2. Moreover, it may also be stated that as per the order dated 04.02.2020 and 20.02.2020, the case was fixed for cross-examination of DW-1 and DW-2. The learned Tribunal has not disclosed the reason that when the case was fixed for cross- examination of DW-1 and DW-2 as per the hereinbefore referred two orders 04.02.2020 and 20.02.2020, the reasons why it had allowed oral evidence of DW-1 and DW-2 to be recorded as DW-3 and DW-4, despite their evidence-on-affidavits available on record. In a search of the database of some e-journals like SCC, Supreme Today and STPL, the Court could not find record of any trial where the Courts/Tribunals, despite accepting the evidence-on-affidavits of witnesses as PW-1 or DW-1, had given separate witness numbering while recording oral examination of the same witness. 22) Thus, the procedure of trial adopted by the learned Tribunal is not found to be in accordance with the procedure provided under the Foreigners (Tribunals) Order, 1964 or under the Civil Procedure Code as applicable for evidence before the learned Tribunal. Hence, in this particular case the proceedings is found to have been conducted at the ipse dixit of the learned Tribunal. 23) Be that as it may, as per the record of the examination-sheet of DW-3 and DW-4, it appears that DW-1 and DW-2 had confirmed their respective Page No.# 12/13 statements made in their respective evidence-on-affidavit. 24) Therefore, in light of the discussions above, the impugned opinion is held to be perverse and not sustainable on facts and in law and therefore, the Court has no hesitation to set aside the opinion dated 29.11.2021, passed by the learned Member, Foreigners Tribunal 7th, Tezpur at Balipara, in Case No. F.T. 432/2016 [arising out of Ref. No. TZP(B)/10/1332 dated 20.04.2010]. 25) As this Court is exercising certiorari jurisdiction and not appellate or revisional jurisdiction, the Court is inclined to remand the matter back to the said learned Tribunal for a fresh appreciation of evidence and opinion to be passed by the learned Tribunal in accordance with law by taking into consideration the observations and findings made in this judgment and order. 26) The petitioner, namely, Smti Gita Bose @ Geeta Basu @ Gita Das Basu @ Gita Das, who is represented by her learned counsel, is directed appear before the said learned Tribunal on or before the outer date of 31.08.2026, and by producing a certified copy of this judgment and order, await for further order to be passed by the said learned Tribunal. 27) The learned Tribunal, on appearance of the petitioner, shall grant bail to the petitioner on usual conditions. The learned Tribunal is directed to make the order of bail valid for a period of 30 (thirty) days after passing of a fresh opinion by the said learned Tribunal. 28) The writ petition stands allowed to the extent as indicated above, by setting aside the impugned opinion and remanding the matter back to the said learned Tribunal for a fresh opinion in accordance with law. 29) The Registry shall return back the Tribunal’s records Page No.# 13/13 expeditiously. 30) The learned standing counsel for the NRC, Border and FT matters shall transmit a downloaded copy of this order to the Home and Political (B) Department for their record. JUDGE JUDGE Comparing Assistant