Gauhati High Court
Md. Abu Bakkar Siddique vs The Union Of India And 11 Ors on 15 May, 2025
Author: M. Nandi
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/17
GAHC010068242025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1837/2025
MD. ABU BAKKAR SIDDIQUE
S/O- MD. MECHAR ALI, VILL.- KHALISABHITA HINDUPARA, P.O.
KHALISABHITA, P.S. LAKHIPUR, DIST. GOALPARA, ASSAM, PIN- 783330.
VERSUS
THE UNION OF INDIA AND 11 ORS
REPRESENTED BY THE MINISTRY OF HOME AFFAIRS, GOVERNMENT OF
INDIA, NEW DELHI-01.
2:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY THE CHIEF ELECTION COMMISSIONER
NEW DELHI-01.
3:THE STATE OF ASSAM
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
HOME DEPT
GUWAHATI
DISPUR
PIN- 781006.
4:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-06.
5:THE STATE CO-ORDINATOR OF NATIONAL REGISTER OF CITIZENS
(NRC)
ASSAM
BHANGAGARH
GUWAHATI-07.
Page No.# 2/17
6:THE DIRECTOR GENERAL OF POLICE
ASSAM
ULUBARI
GUWAHATI-781005.
7:THE DEPUTY COMMISSIONER OF POLICE (BORDER)
CITY
GUWAHATI
DIST. KAMRUP METRO
ASSAM
PIN- 781001.
8:THE SUPERINTENDENT OF POLICE (B)
GOALPARA
DIST. GOALPARA
ASSAM
PIN- 783101.
9:THE DISTRICT COMMISSIONER
KAMRUP METRO
ASSAM
HENGRABARI
GHY-36.
10:THE DISTRICT COMMISSIONER
GOALPARA
DIST.- GOALPARA
ASSAM
PIN- 783101.
11:THE ELECTORAL REGISTRATION OFFICER
SOUTH SALMARA MANKACHAR
P.O. HATSINGIMARI
DIST. SOUTH SALMARA MANKACHAR
ASSAM
PIN- 783135.
12:THE ELECTORAL REGISTRATION OFFICER
GOALPARA
DIST. GOALPARA
ASSAM
PIN- 783101
Advocate for the Petitioner : MR. M R KHANDAKAR, MR. A ROHMAN
Advocate for the Respondent : DY.S.G.I., SC, ECI,GA, ASSAM,SC, NRC,SC, F.T
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BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE MALASRI NANDI
JUDGMENT & ORDER (CAV)
Date : 15-05-2025
(M. Nandi, J)
Heard Mr. M.R. Khandakar, learned counsel for the petitioner. Also
heard Mr. G. Sarma, learned Standing Counsel for the FT matters and NRC;
Mr. M. Islam, learned counsel appears on behalf of Mr. A.I. Ali, learned
Standing Counsel for the ECI; Mr. K. Gogoi, learned Standing Counsel for the
CGC; and Mr. P. Sarma, learned Additional Senior Government Advocate,
Assam.
2. Though the case is fixed for admission, however, with the consent of both
sides, the matter is taken for final disposal.
3. Vide this application under Article 226/227 of the Constitution of India, the
petitioner has challenged the impugned order/opinion dated 06.03.2025, passed
in F.T. Case No.700/2015 by the learned Foreigners Tribunal No.2, Kamrup(M),
Guwahati.
4. The case of the petitioner as projected before the Tribunal is that he is the
son of Md. Macher Ali @ Mechar Ali and Fuljan Bibi @ Fuljan Necha. His
grandparents were Sonaullah Seikh @ Sonaulla and Moussamat Nessa. The
petitioner was born on 01.01.1988 at village – Katdanga under South Salmara
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Police Station in the district of Dhubri, Assam.
5. A reference has been made by the Deputy Commissioner of Police (B),
City, Guwahati against the petitioner suspecting him to be a foreigner from
Bangladesh who had entered into Assam/India illegally after 25.03.1971.
Accordingly, a case has been registered vide F.T. Case No.700/15. On receipt of
the notice from the Tribunal, the petitioner has appeared and contested the
case by filing written statement wherein he stated that the name of his
grandparents appeared in voter list of 1966. Similarly, in the NRC enquiry data
for the year 1951, the name of the grandfather and grandmother of the
petitioner are also reflected against village – Mohurichar, P.S – South Salmara,
district of Dhubri. The said NRC entry for the year 1951 was issued by the
Deputy Superintendent of Police (B) on 17.08.1987.
6. It is also stated in the written statement that the grandparents of the
petitioner casted their vote in the year 1970/1971. The father of the petitioner
was born on 01.10.1961 at village – Katdanga. In the similar way, the names of
the parents of the petitioner were recorded in the voter lists of 1997 and 2005.
After being eligible for casting vote, the name of the petitioner was inserted in
the voter lists for the first time in the year 2015 and 2023 along with his parents
Mechar Ali and Fuljan Necha from Jaleswar Legislative Assembly of village –
Kholisavita Hindupara in Golapara district.
7. In the course of trial, the petitioner examined himself as DW-1 and one
Mechar Ali as DW-2. The petitioner has also exhibited the following documents
before the Tribunal vide Ext.1 – NRC document, Ext.2 – voter list of 1966, Ext.3 –
voter list of 1970/1971, Ext.4 – voter list of 1997, Ext.5 -voter list of 2005, Ext.6 –
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voter list of 2015, Ext.7 – voter list of 2023, Ext.8 – Final result of NRC of the
applicants. In his evidence-in-affidavit, the petitioner has reiterated the same
thing whatever stated in his written statement.
8. Learned counsel for the petitioner has submitted that the Enquiry Officer
had never visited the residence and village of the petitioner and never asked the
petitioner to produce any document to prove his Indian citizenship at any point
of time before making the reference/forwarding the case to the learned
Tribunal. The Enquiry Officer in form no.1 dated 04.08.2015 opined that the
petitioner was not available in the address given before the Enquiry Officer but
it is nowhere mentioned that the petitioner had illegally entered into
Assam/India on or after 25.03.1971. As such, there was no fair enquiry and
reference against the petitioner in the instant case. It is further stated that the
reference dated 31.08.2015 made by the Deputy Commissioner of Police,
Guwahati is a faulty one and the same cannot be allowed under the law.
9. Further submission of learned counsel for the petitioner is that the Tribunal
issued notice to the petitioner in connection with F.T Case No.700/15 stating
that the petitioner had illegally entered into Assam/India on or after 25.03.1971
without any valid document as such no reference was made to the learned
Tribunal stating that the petitioner had illegally entered into Assam. It is also
stated that though notice was issued to the petitioner but without furnishing the
copy of enquiry report/reference and the main grounds for suspecting the
petitioner to be a foreigner in violation of the provisions of law.
10. The learned counsel for the petitioner further contended that the name of
the petitioner appeared in the voter lists of 2010, 2015, 2019, 2021 and 2023
along with his parents namely Mechar Ali and Fuljan Necha and his wife Rohima
Bibi and his younger brother Abul Hosen from village – Kholisavita, Hindupara
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under 39 Jaleswar LAC. The competent authority has also issued passport dated
09.10.2023 in the name of the father of the petitioner. The Electoral Registration
Officer has issued Electors Photo Identity Card (EPIC) to the petitioner on
01.10.2013. The petitioner has also obtained Aadhar Card and PAN Card issued
by the competent authority. Accordingly, the learned counsel for the petitioner
has prayed for setting aside the opinion/order rendered by the Tribunal.
11. According to the learned counsel for the petitioner, in spite of submission
of sufficient documents to prove the citizenship of the petitioner, the learned
Tribunal has not assigned any reason for not considering the evidences and the
documents exhibited by the petitioner. Accordingly, it has been submitted that
impugned opinion suffers from the vice of non-application of mind and as such,
the opinion of the Tribunal requires modification by this Court.
In support of his submission, learned counsel for the petitioner
has relied on the following case laws –
a) (2024) O Supreme SC 575 [ Rahim Ali @ Abdur Rahim Vs. State
of Assam ]
b) (2001) 3 GLT 12 [ Sona Kha @ Sona Khan Vs. Union of India
and Ors.]
c) (2017) 2 GLT 1065 [ Santosh Das Vs. Union of India and Ors.]
12. In response, learned counsel for the respondents support the order of the
Tribunal and contended that being a finding of fact based on appreciation of
evidence, the writ court may not interfere with such finding of fact which is
otherwise also fully justified in the facts and circumstances of the case.
13. Having heard the learned counsel for the parties, the question to be
decided whether the opinion rendered by the Tribunal is perverse and liable to
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be set aside by exercising the jurisdiction under Article 226 of the Constitution
of India.
14. Coming to question of reference issued to the petitioner vide form-1
notice dated 22.05.2015 by the Enquiry Officer, showing the name of the
petitioner – Md. Abu Bakkar Sidique, 25 years, S/o Md. Maser Ali. Address in the
Country of origin – not known. Name of the spouse – Nurjahan Nessa. Address
in India, Village – Kholisavita, P.S – Lakhipur, District – Goalpara.
15. As per form-1 notice, fingerprints and photograph of the petitioner were
taken. The Enquiry Officer opined that during enquiry, the suspected person Md.
Abu Bakkar Sidique could not produce any valid documents in support of his
Indian citizenship. Hence, prayer for registration of FT Case.
16. Subsequently, during final enquiry, it was reported by the Enquiry Officer
that the petitioner was not available in the address and accordingly, the case
was forwarded to the learned Tribunal for opinion. The petitioner has challenged
the notice issued by the Tribunal vide Annexure-3 in Police Case No.275/2015
which is reproduced as follows –
“Whereas, by the above reference, the competent authority has
brought an allegation against you that you have entered into
Assam after 25th March, 1971 without any valid documents and
Whereas, the reference reveals that you could not produce any
valid document during the period of enquiry/verification
regarding your Indian citizenship within the stipulated period of
time, and
Page No.# 8/17Whereas, on the grounds made on the reference, you are
suspected to be an illegal migrant.
Therefore, you are asked to appear in person or by a concerned
lawyer engaged by you before this Foreigner’s Tribunal on
28.11.2024 to file written statement ……”
17. From Annexure-3 notice, it is crystal clear that why the notice was issued
to the petitioner, as the petitioner has failed to produce any valid document
during the period of enquiry regarding his Indian citizenship. It also appears
from form-1 notice that he was interrogated by the Enquiry Officer and he was
asked to produce relevant documents to prove his Indian citizenship but he
failed to do so. Accordingly, a reference was made. Under such backdrop, we do
not find an illegality in issuing notice to the petitioner.
18. In this case, the petitioner has exhibited the aforesaid documents to prove
his link with his parents and grandparents. According to the petitioner, the name
of his grandfather was Sonaullah Seikh and Grandmother was Moussamat Nessa
but he could not recall when they died. When the petitioner was cross-
examined, the petitioner disclosed that the name of his parental grandmother is
late Suratan Nessa. DW-1 also replied in his cross-examination that he got
married to one Rahima Bibi and he has two sons and one daughter. They are
Ibrahim and Soriful. But he could not recollect the name of his daughter which
is in fact unusual.
19. Similarly, DW-2 also claimed that the petitioner is his son and his wife is
Rahima Begum. Two sons of the petitioner are Ibrahim and Soriful but he has
also failed to recollect the name of his granddaughter.
20. It is pertinent to say here that though the petitioner and his projected
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father DW-2 stated that the petitioner got married to one Rahima Bibi @ Begum
but as per enquiry report, the name of the spouse of the petitioner is shown as
Nurjahan Nessa, aged about 19 years. There is no whisper either in the written
statement or in the evidence of the petitioner whether Rahima Bibi @ Begum is
the second wife of the petitioner.
21. Proceeding to the voter lists of 1966 and 1970 vide Ext.2 and Ext.3, which
reveal the names of one Sonaullah Seikh, S/o Tarifullah and Moussamat Nessa,
W/o Sonaullah. Thereafter, the petitioner relied on the voter list of 1997 i.e.
after 27 years. It is not reflected in the written statement as well as in the
evidence of the witnesses why the petitioner has failed to produce any such
document in between 1970 to 1997 to show the fact that they were
continuously residing in the village – Katdanga or Kholisavita during such period.
As per 1997 voter list, the name of Mocher Ali, S/o Sonaullah, aged about 41
years and Fuljan Bibi, W/o Mocher Ali, aged about 35 years have appeared.
22. According to DW-1 and DW-2, Mocher Ali was born on 01.10.1961, if that
is so, he should be 36 years in the year 1997. It is also not clarified that though
DW-2 has attained the age of majority in the year 1979, but he casted his vote
for the first time in the year 1997.
23. The 2005 voter list vide Ext.5 shows the name of one Mecher Ali, S/o
Sonaullah Munshi, aged about 44 years and Fuljan Nessa, W/o Mecher Ali, aged
about 31 years. In 1997 voter list as we have already stated, the age of Mocher
Ali has been reflected as 41 years. After 8 years, the age of Mecher Ali was
shown as 44 years. Similarly, in 1997 voter list, the age of Fuljan Bibi has been
shown as 35 years. However, in 2005 voter list, the age of Fuljan Nessa has
been shown as 31 years. Under such backdrop, it cannot be said that Mocher Ali
and Mecher Ali and Fuljan Bibi and Fuljan Nessa are one and the same person.
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24. According to the petitioner, he was born on 01.10.1988 and accordingly,
he was eligible for casting vote in the year 2006. But the petitioner has casted
vote for the first time in the year 2015. There is also no clarification from the
side of the petitioner that why he has failed to produce any such document prior
to 2015.
25. Situated thus, it can be said that the petitioner has failed to discharge his
burden that he was continuously present in the State of Assam since his birth
with his projected parents.
26. In the case of Sarbananda Sonowal Vs. Union of India, reported in (2007) 1
SCC 174, it was held as follows –
“39. Status of a person, however, is determined according to
statute. The Evidence Act of our country has made provisions as
regards ‘burden of proof’. Different statutes also lay down as to
how and in what manner burden is to be discharged. Even some
penal statutes contain provisions that burden of proof shall be on
the accused. Only because burden of proof under certain
situations is placed on the accused, the same would not mean
that he is deprived of the procedural safeguard.”
27. In Hiten Pal Dalal Vs. Bratindranath Banerjee [(2001) 6 SCC 16], the
Hon’ble Supreme Court has categorically opined that –
“Presumptions are rules of evidence and do not conflict with the
presumption of innocence, because by the latter, all that is
meant is that the prosecution is obliged to prove the case against
the accused beyond reasonable doubt. The obligation on the
prosecution may be discharged with the help of presumptions of
Page No.# 11/17law or fact unless the accused adduces evidence showing the
reasonable possibility of the non-existence of the presumed fact.
23. In other words, provided the facts required to form the basis
of a presumption of law exist, no discretion is left with the court
but to draw the statutory conclusion, but this does not preclude
the person against whom the presumption is drawn from
rebutting it and proving the contrary. A fact is said to be proved
when, “after considering the matters before it, the court either
believes it to exist, or considers its existence so probable that a
prudent man ought, under the circumstances of the particular
case, to act upon the supposition that it exists.”
Moreover, there exists a difference between a burden of proof and onus of
proof.
28. In Anil Rishi vs. Gurbaksh Singh [2006 (5) SCALE 153], the Hon’ble
Supreme Court has held that –
“There is another aspect of the matter which should be borne in
mind. A distinction exists between a burden of proof and onus of
proof. The right to begin follows onus probandi. It assumes
importance in the early stage of a case. The question of onus of
proof has greater force, where the question is which party is to
begin. Burden of proof is used in three ways : (i) to indicate the
duty of bringing forward evidence in support of a proposition at
the beginning or later; (ii) to make that of establishing a
proposition as against all counter evidence; and (iii) an
indiscriminate use in which it may mean either or both of the
Page No.# 12/17others. The elementary rule in Section 101 is inflexible. In terms
of Section 102, the initial onus is always on the plaintiff and if he
discharges that onus and makes out a case which entitles him to
a relief, the onus shifts to the defendant to prove those
circumstances, if any, which would disentitle the plaintiff to the
same.”
29. Having regard to the fact that the Tribunal in the notice to be sent to the
proceedee is required to set out the main grounds; evidently the primary onus
in relation thereto would be on the State. However, once the Tribunal satisfied
itself about the existence of grounds, the burden of proof would be upon the
proceedee.
30. In Sarbananda Sonowal vs. Union of India, reported in (2005) 5 SCC 665,
the Hon’ble Supreme Court has held that the burden of proof would be upon the
proceedee as he would be possessing the necessary documents to show that he
is a citizen not only within the meaning of the provisions of the Constitution of
India but also within the provisions of the Citizenship Act.
It was stated –
“26. There is good and sound reason for placing the burden of
proof upon the person concerned who asserts to be a citizen of a
particular country. In order to establish one’s citizenship,
normally he may be required to give evidence of (i) his date of
birth (ii) place of birth (iii) name of his parents (iv) their place of
birth and citizenship. Sometimes the place of birth of his
grandparents may also be relevant like under Section 6-A(1)
(d) of the Citizenship Act. All these facts would necessarily be
Page No.# 13/17within the personal knowledge of the person concerned and not
of the authorities of the State. After he has given evidence on
these points, the State authorities can verify the facts and can
then lead evidence in rebuttal, if necessary. If the State
authorities dispute the claim of citizenship by a person and assert
that he is a foreigner, it will not only be difficult but almost
impossible for them to first lead evidence on the aforesaid
points. This is in accordance with the underlying policy of Section
106 of the Evidence Act which says that when any fact is
especially within the knowledge of any person, the burden of
proving that fact is upon him.”
31. Coming to the question of NRC document, according to the petitioner vide
Ext.1, the names of the petitioner’s grandfather and grandmother are reflected
along with other family members against village – Mohurichar, P.S – South
Salmara, Mouza/Circle- Dhubri. The said NRC entry for the year 1951 was issued
by the Superintendent of Police (B), Dhubri on 17.08.1987.
32. However, Mr. Sarma, learned counsel for FT matters has objected to the
fact by stating that NRC documents is not admissible in law by referring the
judgment of Abdul Mozid @ Mozid Ali Vs Union of India and Ors in WP(C)
6090/2016.
33. In the case of Abdul Mozid (supra), it was held as follows –
“11. Ext.1 is stated to be a true copy of national register of
citizens (NRC), 1951 issued by the Deputy Superintendent of
Police (B), Dhubri on 17.10.1985 containing the names of Haru
Dewani, Belaton Nessa, Madan Sheikh( Matin) and Hanif Sheikh.
Page No.# 14/17
NRC, 1951 was prepared on the basis of the Census Act,1948. As
per Section 15 of the Census Act, 1948, records of census are
not open to inspection and thus not admissible in evidence.
Therefore, in Bhanbhasa Sheikh Vs. Union of India, 1970 Assam
LR 206, a single Bench of this Court categorically held that NRCextracts produced to prove domicile in India is not admissible in
evidence for any purpose. We are in complete agreement with
the views expressed by the learned Single Judge in Bhanbhasa
Sheikh (supra). Therefore, Ext.1 is no evidence in the eye of law.”
34. Having regard to the observation as per judgment of Abdul Mozid (supra),
it can be said that Ext.1 vide NRC document has no value in the eye of law in
considering the citizenship of a person like the present petitioner.
35. In another case vide State of Assam and Another Vs. Ohab Ali [WP(C)
2641/2017], it was held as follows –
“16. On the other hand, from the impugned order, we find that
after narrating the case as projected by the respondent, the
Tribunal observed that State did not examine any witness and
failed to adduce any rebuttal evidence. Therefore, Tribunal
answers the reference against the State. We are afraid the
approach taken by the Tribunal is contrary to the law laid down
by the full Bench of this Court in State of Assam Vs. Moslem
Mondal, reported in (2013) 1 GLT 809. Under Section 9 of theForeigners Act, 1946, burden is on the proceedee to prove that
she is not a foreigner, but is citizen of India and this burden
never shifts. This burden has to be discharged by the proceedee
by adducing evidence which are admissible; which must be
Page No.# 15/17proved; and which must have relevance to the facts in issue. By
mere filling of documents without examining its admissibility and
without the documents being proved or without examining its
relevance, it cannot be said that the proceedee has discharged
his burden. Question of rebuttal evidence by the State will arise
only if the proceedee adduces evidence which are admissible,
proved and which have relevance.”
36. In view of the aforesaid discussion and the documents available in the
record, it is an admitted fact that apart from the discrepancy in the name, there
is discrepancy in the age of the petitioner’s projected grandparents and the
parents which would make the claim of the petitioner doubtful, as also observed
by the learned Tribunal in its opinion.
37. In this regard, we refer the case of Abul Kuddus Vs. Union of India and Ors.
vide WPC No. 1073/2016, which is reproduced as follows –
“20. A contention was raised during the hearing that
discrepancies in the name and age in the voter lists should not
be given and due weightage as because the entries were made
by the Electoral Authorities and not by the proceedee. However,
this aspect of the matter was gone into by this Court in the case
of Basiron Bibi Vs. Union of India , reported in (208) 1 GLT 372,
wherein it was held as under –
“Reliance placed in the case Abdul Matali @ Mataleb
(Md.) (Supra) can be of no assistance to the petitioner
in as much as, as it has already been clarified by this
Court in previous decisions that the said decision did
Page No.# 16/17not lay down any law and was a decision confined to
the facts and circumstances of the case. Regarding
discrepancies in the voters’ lists which the petitioner
contended were not her creation being entered into by
Officials of Election Commission and therefore, should
not be used adversely against the petitioner, such
contention is without any substance. The voters’ lists
were adduced as evidence by the petitioner herself to
prove her case that she was not a foreigner but a
citizen of India. Petitioner cannot insist that only that
portions of the voters’ lists which are in her favour
should be accepted and those portions going against
her should be overload. This is not how a document
put forward as a piece of evidence should be
examined. The document has to be appreciated as a
whole.”
38. It is pertinent to mention here that the documents which the petitioner
wanted to exhibit subsequently before the Tribunal cannot be taken into
consideration by the writ Court as those documents were not exhibited before
the Tribunal at the first instance.
39. In view of the above discussion as well as the documents available on the
record, the Court does not find any ground to interfere with the opinion
rendered by the Tribunal. Hence, the writ petition is dismissed.
40. It is reported that in terms of the order/opinion dated 06.03.2025 in F.T
Case No.700/2015, the petitioner was arrested and detained in the Detention
Camp at Matia, Goalpara. As the petitioner has failed to discharge his burden to
Page No.# 17/17
be a citizen of India, he is not entitled for bail.
41. The writ petition is disposed of accordingly.
42. Transmit the case records to the Tribunal.
JUDGE JUDGE Comparing Assistant
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