THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM v. UNION OF INDIA

Advocate for the Petitioner : MS. R CHOUDHURY Advocate for the Respondent : ASSTT.S.G.I. Page No.# 2/4 :: BEFORE :: HON’BLE MR. JUSTICE MANASH RANJAN PATHAK HON’BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

O R D E R

02.08.2022 (Parthivjyoti Saikia, J) Heard the learned counsel Ms. R. Choudhury appearing for the petitioner. Also heard Ms. U. Das, learned Government Advocate; Ms. L. Devi, learned Standing Counsel, NRC; Mr. K.K. Parasar, learned Central Government Counsel; Mr. A.I. Ali, learned Standing Counsel, Election Commission of India and Mr. G. Sarma, learned Standing Counsel, Foreigners’ Tribunal, Assam.

This is an application under Article 226 of the Constitution of Indian challenging the proceeding being FT Case No.BNGN/APR/FT/554/2017 pending before the Foreigners’ Tribunal, Bongaigaon No.2 at Abhayapuri.

On a reference made by the competent authority, notice was issued to the petitioner asking him to prove his Indian citizenship. The notice was received by the petitioner. He appeared before the Tribunal with a petition (Annexure-15). In the said petition, the petitioner claimed Page No.# 3/4 that the Referral Authority acted mechanically without applying mind on the materials collected by the Investigating Officer. The petitioner further submitted before the Tribunal that the Investigating Officer mentioned in his report that the petitioner Md. Fajar Ali was prima facie found to be an Indian citizen by birth.

The petitioner also claimed that the Tribunal also mechanically issued notice to him under the given circumstances of the case.

Claiming aforesaid facts, the petitioner submitted before the Tribunal to drop the proceeding against him. The Tribunal did not pass any order upon the petitioner. Hence, this writ petition has been filed.

Ms. Choudhury has submitted that the petitioner is now ready to contest the proceeding before the Tribunal.

We have given our anxious considerations to the submissions made by the learned counsel of both sides.

The Tribunal asked the petitioner to prove his Indian citizenship. Under Section 9 of the Foreigners Act, 1946, it is the burden of the person concerned to prove his Indian citizenship. Now, the petitioner himself submits that he is ready to discharge his burden of proof by contesting the proceeding before the Tribunal.

Therefore, we are of the opinion that the petitioner deserves to be given an opportunity to contest the proceeding before the Tribunal. Accordingly, we hereby direct the petitioner to appear before the Tribunal on 23.08.2022 along with the written statement and the list of witnesses. The petitioner may file a certified copy of this order before the Page No.# 4/4 Tribunal.

Since the citizenship of the petitioner is under cloud, he shall appear before the Superintendent of Police (Border), Bongaigaon. He will continue to remain on bail till culmination of the proceeding before the Tribunal subject to furnishing a bail bond of Rs.5,000/- with one surety of like amount to the satisfaction of the Superintendent of Police (Border), Bongaigaon. The Superintendent of Police (Border), Bongaigaon shall take steps for capturing the fingerprints of both hands of the petitioner and the biometrics of the iris of his eyes. For the said purpose, the petitioner shall appear before the Superintendent of Police (Border), Bongaigaon before 23.08.2022 during office hours.

The petitioner shall not leave the jurisdiction of the Bongaigaon district without giving details of the place of destination and his place of stay to the Superintendent of Police (Border), Bongaigaon and without obtaining prior written permission from the said authority.

With the aforesaid direction the present writ petition stands disposed of. Send back the LCR. The Registry shall inform the Superintendent of Police (Border), Bongaigaon about this order forthwith. JUDGE JUDGE Comparing Assistant