B.K. SHARMA JUDGEMENT AND ORDER (CAV) By means of this writ petition v. Rampal Singh Bisen reported in (2010) 4 SCC 491, mere admission

#3. When the writ petition was entertained by order dated 1.8.2011, a direct ion was issued not to deport the petitioner from India subject, however, to the condition that he would surrender before the Superintendent of Police, Barpeta.

#4. The petitioner did not comply with the said order as recorded in the ord ers passed in this proceeding on 26.8.2011 and 9.9.2011. Thereafter he was arres ted by the Superintendent of Police (B), Barpeta on 22.9.2011 and was kept in th e detention camp at Goalpara.

#5. According to the petitioner, he is a citizen of India and it is his case that his father namely Hakim Uddin was enrolled in the voter list of 1966 and t hereafter again in 1970. It has also been stated that his mother and brothers na me, namely, Jarina Khatun and Asur Uddin also appeared in the voter list of 2005 . According to the petitioner, his name also appeared in the 1997 voter list. In paragraph 6 of the writ petition, he has named his wife as Hasina Banu and his 7 children. As regards the exparte proceeding against him, it has been stated in paragraph 7 of the writ petition that the petitioner had appeared before the Tr ibunal on 17.10.2006, 13.11.2006 and 4.12.2006 and prayed for time to file writt en statement and documents and accordingly time was allowed to him. However, he could not appear thereafter before the Tribunal as he was engaged in various bri ckfields.

#6. I have heard Mr. A.S. Choudhury, learned Sr. Counsel for the petitioner as well as Mr. H.K. Barman, learned State Counsel. I have also heard Mr. M. Bhag wati, learned CGC and have also perused the records of the Tribunal.

#7. The proceeding file of the Tribunal has revealed that the reference was initially registered on 22.8.2004 and thereafter various dates were fixed up to 14.7.2005. However, the petitioner did not take any steps. After scrapping of IM (D)T Act, 1983 by the Apex Court in Sarabanada Sonowal (I) reported in AIR 2005 SC 2920, the reference was adjudicated upon by the Foreigners Tribunal (2nd), Ba rpeta. Notice was duly served on the petitioner and he appeared on 17.10.2006 wi th the prayer for another date for submission of written statement. The prayer w as allowed fixing the matter on 13.11.2006, on which date also the petitioner pr ayed for another date and the same was allowed fixing the matter on 4.12.2006. On 4.12.2006, the petitioner prayed for time. The prayer was allowed as 8. a last chance fixing the matter on 19.12.2006. However, on all the dates fixed t hereafter namely 19.12.2006, 18.1.2007, 16.2.2007, 19.3.2007, 20.4.2007, 25.5.20 07, 5.7.2007, 19.7.2007, 9.8.2007 and finally on 21.8.2007, on which date the im pugned exparte order was passed, the petitioner did not appear without any steps . It will be pertinent to mention here that on 9.8.2007, the local verification officer, who had conducted the verification and furnished report suspecting the petitioner to be an illegal Bangladeshi migrant was examined and he proved the r eport (Ext-1) along with his signature [Ext-1(I)].

#9. As per the requirement of the provision of the Act i.e. Section 9 of the Foreigners Act, 1946, burden lies with the person concerned to prove his Indian citizenship. But in the instant case, the petitioner inspite of getting adequat e opportunity, did not discharge the said burden and consequently there was no o ption left for the Tribunal, but to proceed exparte against him.

#10. In view of the above, no fault can be attributed to the Tribunal for pro ceeding exparte against the petitioner. Coupled with this, the kind of explanati on furnished in the writ petition for non-appearance, which has been mentioned a bove, does not entitle the petitioner any fresh hearing. Needless to say that in the matter of determination of Indian citizenship in the back ground of large n umber of Bangladeshi nationals present in the State of Assam, the person concern ed will have to show his seriousness and cannot be allowed to urge untenable ple as towards assailing the exparte proceeding, which naturally resulted upon non-a ppearance of the petitioner.

#11. In the writ petition, the petitioner has placed reliance on the photocop ies of voter lists of 1966 and 1970 purportedly containing his father’s name. Me re inclusion of the name (Hakim Uddin) in the voter lists of 1966 and 1970 canno t establish the Indian citizenship of the petitioner unless it is established th e said Hakim Uddin is the father of the petitioner. Moreover, there is also no e xplanation as to why the name of said Hakimuddin does not appear in any other vo ter lists.

#12. The petitioner has also placed reliance on the voter list of 2005 showin g the name of Jarina Khatun and Ashuruddin, whom he claims to be his mother and brother. Inclusion of names of those two persons cannot lead to any inference th at the said two persons are his mother and brother. There is also no explanation as to why their names did not appear in any one of the voter lists pre and post 2005. There is also no explanation as to why the name of the petitioner does no t appear in any one of the voter lists. In the writ petition he has declared his age as 44 years as of 14.6.2011. If that be so, he was 38 years of age in 2005. In the voter list of 2005, the person concerned, namely Ashuruddin, whom the pe titioner claims to be his brother was 24 years of age. If his name could be enro lled, it is not understood as to why the name of the petitioner could not be enr olled. Placing reliance on Annexure-4 certificate purportedly issued by the Gao 13. nburha, it is the claim of the petitioner that his name was included in the vote r list of 1997. Even assuming that his name was included in 1997 voter list, sam e by itself cannot establish Indian citizenship of the petitioner. The records o f the Tribunal have revealed that the reference against the petitioner was also on the basis of verification done in respect of intensive revision of electoral roll for the particular assembly constituency with reference to 1.1.1997 as the qualifying date. Such revision was carried out as per the order of Election Comm ission of India. When draft electoral roll was published on 24.7.1997, a doubt a rose in respect of inclusion of name of the petitioner and accordingly an enquir y was conducted. It was pursuant there to, the reference was made against the pe titioner and thus, inclusion of the name of the petitioner in 1997 electoral rol l is of no consequence. Moreover, the petitioner cannot claim Indian citizenship only on the basis of that document.

#14. As noted above, the documents annexed to the writ petition are all photo copies. This Court sitting in writ jurisdiction cannot make a roving enquiry on the veracity of otherwise of the same. As has been held by the Apex Court in LIC I Vs. Rampal Singh Bisen reported in (2010) 4 SCC 491, mere admission of a docum ent in evidence does not amount to its proof. In other words, mere marking of ex hibit on a document does not dispense with its proof, which is required to be do ne in accordance with law. It was the duty of the petitioner to prove the docume nts by responding to the proceeding before the Tribunal. Mere filing of document s (photocopies) in the writ proceeding cannot partake the character of admissibl e evidence in a court of law. Such documents are required to be proved in accord ance to the provisions of Evidence Act, which the petitioner measurably failed. Above apart, under the law of evidence also, it is necessary that conten 15. ts of documents are required to be proved either by primary or by secondary evid ence. At the most, admission of documents may amount to admission of contents bu t not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Court. Contents of the documents cannot be proved by merely filing in a court.

#16. Be that as it may, even if the documents annexed to the writ petition ar e taken into account on their fresh value, same will not establish Indian citize nship of the petitioner.

#17. In view of the above, I do not find any merit in the writ petition and a ccordingly it is dismissed. The Superintendent of Police (B) Barpeta shall ensur e deportation of the petitioner from Assam, India and till such time, he shall b e confined in the detention camp. Simultaneously, the Deputy Commissioner of the District shall also ensure deletion the name of the petitioner, from the voter list.

#18. Let copies of this judgment and order be sent to the said two authoritie s. Another copy be sent to Union Government in the Home Department for appraisal . Another copy be furnished to Mr. H.K. Barman, learned State Counsel for his ne cessary follow up action.