GUWAHATI, India, May 25 -- Gauhati High Court issued the following order on April 24:
1. Heard Mr. S. Ahmed, learned counsel for the petitioner. Also heard Ms. L. Devi, learned CGC for respondent no.1; Mr. G. Sarma, learned standing counsel for FT, Border matters and NRC for respondent nos. 2, 4 and 6; Mr. A.I. Ali, learned standing counsel for respondent no. 3; and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate for respondent no.5.
2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Sona Bhanu @ Sona Bhanu Khatun, has assailed the opinion dated 21.09.2018, passed by the learned Member, Foreigners Tribunal- 8th, Barpeta, Assam, in F.T. Case No. 125/2017, arising out of IM(D)T Case No. 2467/97, thereby declaring her to be an illegal migrant/foreigner under Section 2(a) of the Foreigners Act, 1946, having illegally entered into India (Assam) on or after 25.03.1971.
3. On service of notice, the petitioner had filed her written statement. In support of her defence, the petitioner had examined the following 6 (six) witnesses:- a. Sona Bhanu, the petitioner, as DW-1. b. A. Latif Khan, projected brother of petitioner as DW-2. c. Jahura Bibi, projected elder sister of petitioner as DW-3. d. Kaddus Ali, husband of the petitioner as DW-4. e. Abul Kalam, Gaonburah of village- Chengelia as DW-5. f. Sri Mohodar Deka, Gaonburah of village- Belbari as DW-6.
4. The DW-1 had exhibited 6 (six) documents as Ext.A to Ext.F; DW-2 had exhibited 1 (one) document as Ext.G; DW-3 had exhibited 3 (three) documents as Ext.H. Ext.I and Ext.J; DW-4 had exhibited 2 (two) documents as Ext.K and Ext.L; DW-5 had exhibited 1 (one) document (Ext.F); and DW-6 had exhibited 1 (one) document (Ext.E). The documents exhibited are as under:-
a. Certified copy of voter list of 1965 (Ext.A);
b. Certified copy of voter list of 1970 (Ext.B);
c. Certified copy of voter list of 1997 (Ext.C);
d. Certified copy of voter list of 1990 (Ext.D);
e. Gaonburah's certificate of village- Belbari Pathar (Ext.E);
f. Gaonburah's certificate of village- Chengaliya (Ext.F);
g. Elector Photo Identity Card (EPIC for short) of DW-2 (Ext.G);
h. Voter List of 1965 (Ext.H);
i. Gaonburah's Certificate (Ext.I);
j. EPIC of DW-3 (Ext.J);
k. EPIC of DW-4 (Ext.K);
l. Voter list of 1997 (Ext.L).
5. In the opinion, the learned Tribunal had referred to evidence of only 4 (four) DWs, i.e. DW-1 to DW-4 and failed in its duty to refer to the evidence of DW-5 and DW-6. Moreover, it is seen that while appreciating the evidence of DW-3, the learned Tribunal had made an error by relating Ext.J, Ext.H and Ext.K to DW-3. The DW-5 and DW-6 had exhibited their certificates, which were already exhibited by the petitioner as Ext.F and Ext.E respectively. However, the learned Tribunal had made an error in failing to discuss the evidence of DW-5 and DW-6. Such an error is found to have vitiated the opinion assailed in this writ petition.
6. It is well settled principle of trial before the Foreigners Tribunals that the said learned Tribunals should discuss the evidence of all the witnesses and should analyze all the documentary exhibits. However, in this case, by not appreciating the exhibits in its proper perspective, as discussed in paragraph 4 above, by wrong reference to the documents exhibited by DW-3 and DW-4 and by not discussing the evidence of DW-5 and DW-6 at all, the impugned opinion is found to be vitiated by perversity in misreading the evidence of DW-3 and DW-4 and by not considering the two vital witnesses, i.e. the Gaonburahs, i.e. DW-5 and DW-6.
*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=%2FE3WiyNUWFIaR1oBGE62Wi%2FAAvpb4KBuv9CzEJoEhXcNa%2FoA8wEWFSNEb%2FKdKuqf&caseno=WP(C)/5034/2019&cCode=1&cino=GAHC010164892019&state_code=6&appFlag=)
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