Holding

The Supreme Court held that the Tribunal’s declaration of the appellant as a foreigner was unsustainable because the authorities failed to disclose any material basis for the allegation, and the appellant is declared an Indian citizen.

Summary

The appellant, Md. Rahim Ali, was declared a foreigner by the Foreigners Tribunal, Nalbari, on the basis that he failed to prove his Indian citizenship under Section 9 of the Foreigners Act, 1946. He challenged the Tribunal's order, arguing that the authorities had no material basis for the allegation of illegal migration and that his right to a fair hearing was violated. The Supreme Court examined the statutory framework, emphasizing that the burden of proof under Section 9 lies on the person making the allegation and that the authorities must disclose the material on which their suspicion is based. The Court found that the initiation of proceedings was based on vague, unsubstantiated allegations without any primary evidence being shared with the appellant. It held that minor discrepancies in name spellings and dates were insufficient to disbelieve the appellant's evidence of long‑standing residence and voter registration. Consequently, the Tribunal’s order and the High Court’s dismissal were set aside, and the appellant was declared an Indian citizen. The appeal was allowed.

Issues considered

The validity of the Tribunal's declaration of the appellant as a foreigner under Section 9 of the Foreigners Act, 1946.
Whether the authorities were required to disclose the material basis for their suspicion before invoking Section 9.
Whether minor discrepancies in documentary evidence can defeat the appellant's claim of Indian citizenship.
Whether the reverse burden of proof under Section 9 complies with principles of natural justice.

Legislation cited

Subjects

Illegal migrationCitizenshipIndian nationalitySection 9 of Foreigners Act, 1946Minor variations in spelling of names in government recordReverse burdenArbitrary discretion of authorityPrinciples of Natural JusticeAudi alteram partem

Judgment

[2024] 7 S.C.R. 2329 : 2024 INSC 511

Md. Rahim Ali @ Abdur Rahim
v.
The State of Assam & Ors.
(Civil Appeal No. 7332 of 2024)
11 July 2024
[Vikram Nath and Ahsanuddin Amanullah,* JJ.]

Issue for Consideration
The Foreigners Tribunal, Nalbari declared the appellant to be a
foreigner on the grounds that he failed to discharge his burden
under Section 9 of the Foreigners Act, 1946.

Headnotes†
Foreigners Act, 1946 – s.9 – Foreigners (Tribunal) Order,
1964 – Illegal Migrants (Determination by Tribunals)
Act, 1982 – The case against the appellant was initiated in
the year 2004 alleging that the appellant illegally migrated
to India after 25.03.1971 from Village Dorijahangirpur, Police
Station – Torail, District Mymansingh, Bangladesh and was
living in Village Kasimpur, Police Station, District-Nalbari
in the State of Assam – The initiation of the case against
the appellant was based on the report submitted by the
Sub-Inspector which in turn was based on the fact that in
his deposition he had stated that upon being directed by the
S.P. (B), Nalbari, he had undertaken an inquiry against the
appellant and asked him to show the documents regarding
his Indian nationality – However, appellant failed to do so –
Reference was made to the Tribunal – By ex-parte order
dated 19.03.2012, the Tribunal held that the appellant had failed
to discharge his burden under Section 9 of the Act and failed
to prove that he is not a foreigner – Aggrieved, appellant filed
writ petition, which was dismissed – Correctness:
Held: Undisputedly, the appellant is not a foreigner recognised
as a national by the law of more than one foreign country –
Thus, the appellant’s case would not fall under Section 8 of the
Act – Section 9 of the Act stipulates if in a case not falling under
Section 8 of the Act, any question arises as to whether a person is
or is not a foreigner or is or is not a foreigner of a particular class,

* Author
2330 [2024] 7 S.C.R.

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the person concerned must prove that he/she is not a foreigner or
not a foreigner of that particular class – In the instant case, it was
specifically alleged that the appellant had come to Assam from
Village-Dorijahangirpur, Police Station-Torail, District-Mymansingh
in Bangladesh while making a reference to the Tribunal – Hence,
it was incumbent on the authority making the reference to provide
details as to how it had received such information as also its
bona fide belief of such factum being true – In other words, the
authority had been, as claimed, able to trace the appellant’s place
of origin – Surely then, the authority had some material to back its
assertion – The record does not show such material was given either
to the appellant or the Tribunal by the authority – In the absence
of the basic/primary material, it cannot be left to the untrammelled
or arbitrary discretion of the authorities to initiate proceedings,
which have life-altering and very serious consequences for the
person, basis hearsay or bald and vague allegation(s) – Under
the garb of and by taking recourse to Section 9 of the Act, the
authority, or for that matter, the Tribunal, cannot give a go-by to
the settled principles of natural justice – Audi alteram partem does
not merely envisage a fair and reasonable opportunity of being
heard – In opinion of this Court, it would encompass within itself
the obligation to share material collected with the person/accused
concerned – The evidence produced before the Tribunal by the
appellant to indicate that his parents had been resident in India
much prior to 01.01.1966 whereas his siblings and he himself
much prior to 25.03.1971, has been disbelieved only on the
ground of mismatch of actual English spelling of the names and
discrepancy in dates – As far as the discrepancy(ies) in dates and
spellings are concerned, this Court is of the view that the same
are minor in nature – The appellant had produced a document
showing that his father and mother had been resident of Village
Dolur Pather since 1965; that his sibling had also been declared
not to be a foreigner by the Tribunal, and; his elder brother and
he were both voters as per the 1985 Electoral Roll relating to 41
Bhabanipur Legislative Assembly Constituency – For and on
the strength of the totality of reasons, the Tribunal’s order
dated 19.03.2012 as also the Impugned Judgment dated 23.11.2015
passed by the High Court are set aside – Putting an authoritative
quietus to the issue, the appellant is declared an Indian citizen
and not a foreigner. [Paras 36, 37, 41, 43, 54, 55]
Evidence – Imposing reverse burden – discussed.
[2024] 7 S.C.R. 2331

Md. Rahim Ali @ Abdur Rahim v. The State of Assam & Ors.

Case Law Cited
Mukesh Singh v. State (Narcotic Branch of Delhi) [2020] 9
SCR 245 : (2020) 10 SCC 120; Union of India v. Ghaus Mohammad
(1961) SCC OnLine SC 2 – followed.

Mangilal v. State of Madhya Pradesh [2004] 1 SCR 1 : (2004) 2
SCC 447; Noor Aga v. State of Punjab [2008] 10 SCR 379 : (2008)
16 SCC 417; Sarbananda Sonowal v. Union of India [2006] Supp.
10 SCR 167 : (2007) 1 SCC 174 – relied on.

Abdul Kuddus v. Union of India [2019] 8 SCR 669 : (2019) 6
SCC 604; Sarbananda Sonowal v. Union of India [2005] Supp.
1 SCR 472 : (2005) 5 SCC 665; Tolaram Relumal v. State of
Bombay [1955] 1 SCR 158; Krishi Utpadan Mandi Samiti v. Pilibhit
Pantnagar Beej Ltd. [2003] Supp. 6 SCR 344 : (2004) 1 SCC
391; Govind Impex Pvt. Ltd. v. Appropriate Authority, Income Tax
Dept. [2010] 14 SCR 523 : (2011) 1 SCC 529; Commissioner of
Customs (Import), Mumbai v. Dilip Kumar & Company [2018] 7
SCR 1191 : (2018) 9 SCC 1; London and North Eastern Railway
Co. v. Berriman 1946 AC 278, 295; Sri Krishna Coconut case,
AIR 1967 SC 973; Karnataka State Financial Corporation v.
N Narasimhaiah [2008] 4 SCR 853 : (2008) 5 SCC 176; Fateh
Mohd. v. Delhi Administration [1963] Supp. 2 SCR 560; Masud
Khan v State of Uttar Pradesh [1974] 1 SCR 793 : (1974) 3 SCC
469 – referred to.

London and North Eastern Rly. Co. v. Berriman, 1946 AC 278 :
(1946) 1 All ER 255 (HL); Tuck & Sons v. Priester (1887) 19
QBD 629 : 56 LJ QB 553 (CA) – referred to.

List of Acts
Citizenship Act, 1955; Foreigners Act, 1946; Foreigner (Tribunal)
Order, 1964; Illegal Migrants (Determination by Tribunals) Act, 1982;
Evidence Act, 1872; Constitution of India.

List of Keywords
Illegal migration; Citizenship; Indian nationality; Section 9 of
Foreigners Act, 1946; Minor variations in spelling of names
in government record; Reverse burden; Arbitrary discretion of
authority; Principles of Natural Justice; Audi alteram partem.
2332 [2024] 7 S.C.R.

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Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7332 of 2024
From the Judgment and Order dated 23.11.2015 of the Gauhati High
Court in WPC No. 2668 of 2012
Appearances for Parties
Kaushik Choudhury, Saksham Garg, Parth Davar, Shaantanu Jain,
Advs. for the Appellant.
Shuvodeep Roy, Sai Shashank, Deepayan Dutta, Advs. for the
Respondents.
Judgment / Order of the Supreme Court

Judgment
Ahsanuddin Amanullah, J.
I.A. No.58315 of 2017 [Condonation of Delay] is allowed, keeping
in mind the peculiar facts and circumstances herein. I.A. No.58325
of 2017 [Exemption from filing Certified Copy of the Impugned
Judgment], being formal in nature, is also allowed.
2. Leave granted.
3. The present appeal arises out of the Final Judgment and Order
passed by a Division Bench of the Gauhati High Court at Guwahati
(hereinafter referred to as the “High Court”) in Writ Petition (Civil)
No.2668 of 2012 dated 23.11.2015 (hereinafter referred to as the
“Impugned Judgment”) by which the Writ Petition filed by the appellant
was dismissed and the order passed by the Foreigners Tribunal,
Nalbari (hereinafter referred to as the “Tribunal”) dated 19.03.2012
passed in F.T. (Nal) Case No.(N)/1096/06 declaring the appellant to
be a foreigner on the grounds that he failed to discharge his burden
under Section 9 of the Foreigners Act, 1946 (hereinafter referred
to as the “Act”) and failed to prove that he is not a foreigner, was
affirmed.
THE FACTUAL PRISM:
4. The appellant claims that his parents’ names appeared in the Voter
List of the year 1965 at Sl. Nos.71 & 72 showing the address as
House No.17 in Village Dolur Pather, P.S. - Patacharkuchi, in the
[2024] 7 S.C.R. 2333

Md. Rahim Ali @ Abdur Rahim v. The State of Assam & Ors.

then district of Kamrup under 48 Bhabanipur Legislative Assembly
Constituency in the State of Assam. It is further his claim that his
parents’ names also appeared in the Voter List of the year 1970
at Sl. Nos.79 & 80 showing the same address. The appellant was
born in the Village Dolur under Patacharkuchi Police Station in the
District of Barpeta and his name was enrolled alongwith his family
members in the voter list of 1985 which appeared in the additional
amended voter list of 1985 at Sl. No.552 showing the same address.
However, upon getting married in the year 1997, he left the joint family
and shifted to his present place of residence i.e., village Kashimpur,
P.O.-Kendu Kuchi, P.S. - Nalbari, in the district of Nalbari in the
State of Assam. As a result of this, the appellant’s name was in the
Voter List of the year 1997 at Sl. No.105 showing the address as
House No.38 in Village Kashimpur, P.S. - Nalbari in the district of
Nalbari under 61 No. Dharmapur LAC. In the year 2006, doubting
his nationality, a case was registered in the Tribunal, Nalbari, being
F.T. (Nal) Case No.(N)/1096/06, Police Reference No.948/04 and
notice was served upon him.
5. The appellant’s daughter was issued a certificate by the Gaonbura
of Kashimpur Village stating the residential status of the appellant/
his daughter on 07.09.2010.
6. The appellant, on receipt of notice from the Tribunal, appeared on
18.07.2011, praying for time to file Written Statement but the same
could not be done as the appellant claimed to be suffering from
serious health issues.
7. On 12.09.2011, the Gaonbura of Village Dolur Pathar issued certificate
to the appellant regarding his residential status. By ex-parte order
dated 19.03.2012, the Tribunal held that the appellant had failed
to discharge his burden under Section 9 of the Act and failed to
prove that he is not a foreigner. The appellant also obtained a
medical certificate issued by the consultant doctor of Civil Hospital,
Nalbari dated 24.04.2012 stating that he was suffering from Chronic
Bronchitis Respiration disturbance from 25.11.2011 to 24.04.2012.
Upon becoming aware of the order dated 19.03.2012 of the Tribunal
from his counsel, the appellant filed Writ Petition (Civil) No.2668
of 2012 on 30.05.2012 before the High Court.
8. In the said writ petition, the High Court by its interim order
dated 06.06.2012 stayed the operation of the Tribunal’s order
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dated 19.03.2012 directing the authority not to deport the appellant
during the pendency of the proceedings before itself. However,
ultimately vide the order dated 23.11.2015, the High Court dismissed
the Writ Petition, which is assailed herein.
SUBMISSIONS BY THE APPELLANT:
9. Learned counsel for the appellant submitted that he has been
subjected to unfair treatment by the Tribunal as though he had
entered appearance upon notice, one opportunity was required to be
given to him since he was faced with serious penal consequences
like detention and/or deportation from the country, which was not
done. Further, it was submitted that even the High Court in the
Impugned Judgment has gone on technicalities by accepting minor
discrepancies in the documents which were not of the nature to lead
to a presumption in law that the same were not correct and were
merely differences in the spellings and date of birth. Even the medical
certificate, which is disputed, has been issued by the consultant of
the hospital, who was never examined. It was urged that as is known
to everybody, on the prescription given to a patient, a doctor writes
his opinion, record of which may not be maintained meticulously or
even casually in a hospital which is at the level of the District, as
may be done in big hospitals in cities.
10. It was submitted that the High Court has erroneously presumed that
the ground for not appearing before the Tribunal was not genuine.
Learned counsel contended that even if for the sake of argument
it is presumed that the reason for his absence was not genuine, it
cannot take away the basic fundamental right of the appellant to be
heard, that too in such an important case, where the appellant stood
not only to lose his nationality but also separation from his family
and possible deportation to a foreign State which would obviously
not accept him because he was born in India and thus, there was
no occasion for any foreign country to accept him as its citizen.
11. It was submitted that earlier also, this Court in the present
proceedings by order dated 28.07.2017 had directed the Tribunal
to decide the nationality of the appellant on merit by holding an
enquiry and submit a report after hearing the appellant and the
same has been done resulting in the Tribunal passing an opinion
and order on 16.11.2017 which has again declared the appellant
to be a foreigner.
[2024] 7 S.C.R. 2335

Md. Rahim Ali @ Abdur Rahim v. The State of Assam & Ors.

12. It was submitted that such declaration is totally perverse in the face
of overwhelming evidence to show that the appellant besides being
born in India and being a resident in India for his entire life and his
blood relatives i.e., siblings and parents having been Indian citizens
much prior to the cut-off date, the appellant has still been singled out
to be declared a foreigner which does not stand to reason. Another
point which learned counsel canvassed was that there was no
occasion for the appellant’s name to figure in the National Register
of Citizens (hereinafter referred to as the “NRC”) as he was declared
a foreigner way back in the year 2012 and as per the judgment of
this Court in Abdul Kuddus v Union of India (2019) 6 SCC 604,
a person whose name is not included in the NRC and is declared
a foreigner by the Tribunal can only move before the High Court in
writ proceedings, the relevant being Paragraph 27.1
SUBMISSIONS BY THE STATE [RESPONDENTS NO.1 AND 3]:
13. Per contra, learned counsel for the State of Assam submitted that
because of the grave threat to the economy, demography and
culture on account of unabated and large-scale illegal migration from
Bangladesh, this Court in Sarbananda Sonowal v Union of India
(2005) 5 SCC 665 [hereinafter referred to as Sarbananda Sonowal I ]
had held that ‘…there can be no manner of doubt that the State of
Assam is facing “external aggression and internal disturbance” on
account of large-scale illegal migration of Bangladeshi nationals.
It, therefore, becomes the duty of India to take all measures for
protection of the State of Assam from such external aggression and
internal disturbance as in Article 355 of the Constitution…’.
14. It was submitted that the present was a case of illegal migration
of a Bangladeshi national to India (Assam) after the cut-off date of
25.03.1971 and has to be dealt with utmost caution, considering
the adverse consequence of illegal migration on the whole country
in general and the respondent-State in particular. It was further
submitted that the present proceedings against the appellant have
been initiated under the Act, which under Section 9 provides that

1 ‘27. As stated above, a person aggrieved by the opinion/order of the Tribunal can challenge the findings/
opinion expressed by way of a writ petition wherein the High Court would be entitled to examine the issue
with reference to the evidence and material in the exercise of its power of judicial review premised on the
principle of “error in the decision-making process”, etc. This serves as a necessary check to correct and
rectify an “error” in the orders passed by the Tribunal.’
2336 [2024] 7 S.C.R.

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the onus is on the person proceeded against/alleged foreigner to
prove that he is not a foreigner.
15. Learned counsel contended that the justification for placing the
burden upon the alleged foreigner has been dealt with by this Court
in Sarbananda Sonowal I (supra) at Paragraph 26.2
16. Learned counsel submitted that the proceeding against the appellant
was initiated on the basis of inquiry conducted in the year 2004
and due to the appellant failing to produce any document before
the Inquiry Officer, the case was referred to the Tribunal and after
service of notice, the appellant had appeared on 18.07.2011 and
prayed for time to file written statement which was allowed and the
matter was fixed for 11.08.2011, on which date his counsel filed a
petition for further time and the matter was fixed for 09.09.2011, but
thereafter the appellant remained absent on all subsequent dates.
Thus, learned counsel contended that the appellant failed to discharge
the burden cast upon him under Section 9 of the Act and the Tribunal
had no option but to proceed and pass an ex-parte order/opinion
on 19.03.2012 holding him to be a foreigner.
17. Learned counsel submitted that in the Writ Petition before the High
Court, the appellant placed reliance on the medical certificate of
Swahid Mukunda Kakati Civil Hospital, Nalbari dated 24.04.2012
to the effect that he was under treatment from ‘25.11.2011 till now’.
The High Court, after verification, found the authenticity of the said
certificate to be fake and held that the appellant had taken recourse
to falsehood with production of fake medical certificate and on
that count alone, the writ petition was dismissed which cannot be
said to be unreasonable warranting interference. It was submitted
that in compliance of the order of this Court in the present matter
on 28.07.2017 directing the Tribunal to examine the documents

2 ‘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 within 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.’
[2024] 7 S.C.R. 2337

Md. Rahim Ali @ Abdur Rahim v. The State of Assam & Ors.

filed by the appellant and to undertake an inquiry and submit report,
the Tribunal undertook such exercise and submitted its opinion
finally holding that the appellant had entered India illegally on or
after 25.03.1971 i.e., the cut-off date and thus, was an illegal migrant
post the cut-off date.
18. It was submitted that this Court may also consider the fact that the
proceedings against the appellant had already taken two decades to
reach this stage and any further delay would defeat the very object
and purpose of the Act which is speedy detection and deportation
of illegal migrants/foreigners staying in India. He also reiterated the
fact that because the appellant was declared to be a foreigner prior
to the preparation of the Draft and Supplementary NRC List, his
name was not included in the same. Learned counsel submitted that
this Court in Abdul Kuddus (supra) had settled the position that the
proceedings before the Tribunal being quasi-judicial in nature, the
findings thereof would operate as res judicata over the administrative
process of inclusion in NRC List and any person aggrieved by the
findings/opinion of the Tribunal would have to invoke the power of
judicial review under writ jurisdiction. Thus, he contended that if
any further liberty is given to the appellant to again challenge the
fresh report dated 16.11.2017 of the Tribunal in writ proceedings, a
time-limit be fixed so that closure could be given to the proceedings.
ANALYSIS, REASONING AND CONCLUSION:
19. Having considered the matter, the Court finds that grave miscarriage
of justice has occasioned in the instant case. We may note that
Section 8 of the Act reads as follows:
“8. Determination of nationality.—(1) When a foreigner
is recognised as a national by the law of more than one
foreign country or where for any reason it is uncertain
what nationality if any is to be ascribed to a foreigner, that
foreigner may be treated as the national of the country
with which he appears to the prescribed authority to be
most closely connected for the time being in interest or
sympathy or if he is of uncertain nationality, of the country
with which he was last so connected:
Provided that where a foreigner acquired a nationality by
birth, he shall, except where the Central Government so
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directs either generally or in a particular case, be deemed
to retain that nationality unless he proves to the satisfaction
of the said authority that he has subsequently acquired by
naturalization or otherwise some other nationality and still
recognized as entitled to protection by the Government of
the country whose nationality he has so acquired.
(2) A decision as to nationality given under sub-section
(1) shall be final and shall not be called in question in
any Court:
Provided that the Central Government, either of its own
motion or on an application by the foreigner concerned,
may revise any such decision.”
20. Undisputedly, the appellant is not a foreigner3 recognised as a national
by the law of more than one foreign country. Thus, the appellant’s
case would not fall under Section 8 of the Act. That being the position
as regards Section 8 of the Act, we venture forward.
21. There is judicial clarity as regards the scope and nature of proceedings
before the Tribunal under the Act, as delineated by the judgments
in Abdul Kuddus (supra) and Sarbananda Sonowal I (supra). For
the purposes of proper appreciation, it is worthwhile to reproduce
Section 9 of the Act which reads as under:
“9. Burden of proof – If in any case not falling under
section 8 any question arises with reference to this Act
or any order made or direction given thereunder, whether
any person is or is not a foreigner of a particular class or
description the onus of proving that such person is not a
foreigner or is not a foreigner of such particular class or
description, as the case may be, shall, notwithstanding
anything contained in the Indian Evidence Act, 1872 (1
of 1872), lie upon such person.”
22. In Abdul Kuddus (supra), it has been explained that after the
preparation and publication of NRC for the State of Assam, as set out
in Paragraphs 2 to 8 of the Schedule to the Citizenship (Registration
of Citizens and Issue of National Identity Cards) Rules, 2003 made

3 A ‘foreigner’ under Section 2(a) of the Act means “a person who is not a citizen of India”.
[2024] 7 S.C.R. 2339

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under Section 18 of the Citizenship Act, 1955 (hereinafter referred to
as the “Citizenship Act”), the right to appeal before the Tribunal under
Paragraph 8 would not be available to persons whose nationality
and citizenship status, either as an Indian or as a foreign national,
has already been adjudicated and declared under the Foreigners
(Tribunal) Order, 1964 (hereinafter referred to as the “1964 Order”)
issued under Section 3 of the Act. In the present case, it is not in
dispute that the matter was decided by the Tribunal and at the first
round, the verdict was against the appellant based on an ex-parte
proceeding. Later, in view of the interim order of this Court, after
giving an opportunity to the appellant, the matter was again gone into
by the Tribunal and a report submitted to this Court which reiterated
its earlier decision that the appellant is a foreigner.
23. Thus, the Court, for completeness of adjudication, has to trace its
steps back to the proceeding right to the stage of inception i.e., the
very initiation of proceedings before the Tribunal under the Act.
24. A reference to Section 6A of the Citizenship Act is warranted:
“6A. Special provisions as to citizenship of persons covered
by the Assam Accord.―(1) For the purposes of this section
(a) “Assam” means the territories included in the State
of Assam immediately before the commencement of the
Citizenship (Amendment) Act, 1985 (65 of 1985);
b) “detected to be a foreigner” means detected to be
a foreigner in accordance with the provisions of the
Foreigners Act, 1946 (31 of 1946) and the Foreigners
(Tribunals) Order, 1964 by a Tribunal constituted under
the said Order;
c) “specified territory” means the territories included in
Bangladesh immediately before the commencement of the
Citizenship (Amendment) Act, 1985 (65 of 1985);
(d) a person shall be deemed to be Indian origin, if he, or
either of his parents or any of his grandparents was born
in undivided India;
(e) a person shall be deemed to have been detected to
be a foreigner on the date on which a Tribunal constituted
under the Foreigners (Tribunals) Order, 1964 submits its
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opinion to the effect that he is a foreigner to the officer or
authority concerned.
(2) Subject to the provisions of sub-sections (6) and (7),
all persons of Indian origin who came before the lst day
of January, 1966 to Assam from the specified territory
(including such of those whose names were included in
the electoral rolls used for the purposes of the General
Election to the House of the People held in 1967) and who
have been ordinarily resident in Assam since the dates of
their entry into Assam shall be deemed to be citizens of
India as from the lst day of January, 1966.
(3) Subject to the provisions of sub-sections (6) and (7),
every person of Indian origin who―
(a) came to Assam on or after the lst day of January, 1966
but before the 25th day of March, 1971 from the specified
territory; and
(b) has, since the date of his entry into Assam, been
ordinarily resident in Assam; and
(c) has been detected to be a foreigner;
shall register himself in accordance with the rules made
by the Central Government in this behalf under section 18
with such authority (hereafter in this sub-section referred
to as the registering authority) as may be specified in
such rules and if his name is included in any electoral roll
for any Assembly or Parliamentary constituency in force
on the date of such detection, his name shall be deleted
therefrom.
Explanation.―In the case of every person seeking
registration under this sub-section, the opinion of the
Tribunal constituted under the Foreigners (Tribunals)
Order, 1964 holding such person to be a foreigner, shall
be deemed to be sufficient proof of the requirement
under clause (c) of this subsection and if any question
arises as to whether such person complies with any
other requirement under this sub-section, the registering
authority shall,―
[2024] 7 S.C.R. 2341

Md. Rahim Ali @ Abdur Rahim v. The State of Assam & Ors.

(i) if such opinion contains a finding with respect to such
other requirement, decide the question in conformity with
such finding;
(ii) if such opinion does not contain a finding with respect
to such other requirement, refer the question to a Tribunal
constituted under the said Order having jurisdiction in
accordance with such rules as the Central Government
may make in this behalf under section 18 and decide the
question in conformity with the opinion received on such
reference.
(4) A person registered under sub-section (3) shall have,
as from the date on which he has been detected to be a
foreigner and till the expiry of a period of ten years from
that date, the same rights and obligations as a citizen of
India (including the right to obtain a passport under the
Passports Act, 1967 (15 of 1967) and the obligations
connected therewith), but shall not entitled to have his
name included in any electoral roll for any Assembly or
Parliamentary constituency at any time before the expiry
of the said period of ten years.
(5) A person registered under sub-section (3) shall be
deemed to be a citizen of India for all purposes as from
the date of expiry of a period of ten years from the date
on which he has been detected to be a foreigner.
(6) Without prejudice to the provisions of section 8―
(a) if any person referred to in sub-section (2) submits in
the prescribed manner and form and to the prescribed
authority within sixty days from the date of commencement
of the Citizenship (Amendment) Act, 1985 (65 of 1985), a
declaration that he does not wish to be a citizen of India,
such person shall not be deemed to have become a citizen
of India under that sub-section;
(b) if any person referred to in sub-section (3) submits in
the prescribed manner and form and to the prescribed
authority within sixty days from the date of commencement
of the Citizenship (Amendment) Act, 1985(65 of 1985),
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or from the date on which he has been detected to be a
foreigner, whichever is later, a declaration that he does not
wish to be governed by the provisions of that sub-section
and sub-sections (4) and (5), it shall not be necessary
for such person to register himself under sub-section (3).
Explanation.― Where a person required to file a declaration
under this sub-section does not have the capacity to enter
into a contract, such declaration may be filed on his behalf
by any person competent under the law for the time being
in force to act on his behalf.
(7) Nothing in sub-sections (2) to (6) shall apply in relation
to any person―
(a) who, immediately before the commencement of the
Citizenship (Amendment) Act, 1985 (65 of 1985), is a
citizen of India;
(b) who was expelled from India before the commencement
of the Citizenship (Amendment) Act, 1985, under the
Foreigners Act, 1946 (31 of 1946).
(8) Save as otherwise expressly provided in this section, the
provisions of this section shall have effect notwithstanding
anything contained in any other law for the time being in
force.”
25. From the aforesaid, it is clear that a cut-off date of 25.03.1971 was
fixed with regard to deciding the status of persons who had come
to Assam on or after 01.01.1966 but before 25.03.1971 from the
“specified territory”4 and from the date of entry have been ordinarily
resident in Assam and been detected to be foreigners. Such persons
were required to register themselves with the Registering Authority
in accordance with rules made by the Central Government under
Section 18 of the Citizenship Act.
26. In the Explanation to Sub-section (3) of Section 6A of the Citizenship
Act, it has been provided that the opinion of the Tribunal constituted

4 Section 6A(1)(c) of the Citizenship Act states: ‘“specified territory” means the territories included in
Bangladesh immediately before the commencement of the Citizenship (Amendment) Act, 1985 (65 of
1985)’
[2024] 7 S.C.R. 2343

Md. Rahim Ali @ Abdur Rahim v. The State of Assam & Ors.

under the 1964 Order holding the person to be a foreigner shall
be deemed sufficient proof of the requirement under clause (c) of
the sub-section aforesaid [viz. Section 6A(3)(c), Citizenship Act]
and the same would also suffice for any other requirement of the
Sub-section. If a question arises as to whether the person complies
with any other requirement under this Sub-section, and the opinion
of the Tribunal contains a finding qua such other requirement, the
Registering Authority will decide the question in accordance with the
opinion of the Tribunal. However, the Registering Authority is required
to refer the matter to the Tribunal, if the opinion of the Tribunal is
silent as to the other requirements, and thereupon the question is
to be decided by the Registering Authority in conformity with the
opinion received from the Tribunal.
27. The very initiation of the proceeding was under the 1964 Order. It is
worthwhile to point out that the 1964 Order has been subjected to
multiple amendments. Para 3 of the 1964 Order has also undergone
variation – a different version was in existence when the Tribunal
examined the matter. However, as we are expounding the law, it is
deemed appropriate to refer to the position as it prevails on date.
Para 3 of the 1964 Order, last amended by GSR dated 30.08.2019,
reads as under:
“3. Procedure for disposal of questions.—(1) The Tribunal
shall serve on the person to whom the question relates,
a copy of the main grounds5 on which he is alleged
to be a foreigner and give him a reasonable opportunity
of making a representation and producing evidence in
support of his case and after considering such evidence
as may be produced and after hearing such persons
as may desire to be heard, the Tribunal shall submit its
opinion to the officer or authority specified in this behalf
in the order of reference.
(2) The Foreigners Tribunal shall serve a show-cause
notice on the person to whom the question relates, that
is, the proceedee.

5 This was brought in by GSR dated 30.09.1965 and has remained since then. In other words, when notice
was served on the appellant, this portion of the 1964 Order was in existence.
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(3) The notice referred to in sub-para (2) shall be served
within ten days of the receipt of the reference of such
question by the Central Government or any competent
authority.
(4) The notice shall be served in English and also in the
official language of the State indicating that the burden is
on the proceedee to prove that he or she is not a foreigner.
(5)(a) The notice shall be served at the address where the
proceedee last resided or reportedly resides or works for
gain, and in case of change of place of residence, which
has been duly intimated in writing to the investigating
agency by the alleged person, it shall be served at such
changed address by the Foreigners Tribunal.
(b) if the proceedee is not found at the address at the
time of service of notice, the notice may be served on any
adult member of the family of the proceedee and it shall
be deemed to be served on the proceedee;
(c) where the notice is served on the adult member of the
family of the proceedee, the process server shall obtain
the signature or thumb impression of the adult member
on the duplicate of the notice as a token of proof of the
service;
(d) if the adult member of the family of the proceedee
refuses to put a signature or the thumb impression, as the
case may be, the process server shall report the same to
the Foreigners Tribunals;
(e) if the proceedee or an available adult member of his
or her family refuses to accept the notice, the process
server shall give a report to the Foreigners Tribunal in that
regard along with the name and address of a person of
the locality, who was present at the time of making such
an effort to get the notices served, provided such person
is available and willing to be a witness to such service
and the process server shall obtain the signature or thumb
impression of such witness, if he or she is present and
willing to sign or put his or her thumb impression, as the
case may be;
[2024] 7 S.C.R. 2345

Md. Rahim Ali @ Abdur Rahim v. The State of Assam & Ors.

(f) if the proceedee has changed the place of residence
or place of work, without intimation to the investigating
agency, the process server shall affix a copy of the notice
on the outer door or some other conspicuous part of the
house in which the proceedee ordinarily resides or last
resided or reportedly resided or personally worked for gain
or carries on business, and shall return the original to the
Foreigners Tribunal from which it was issued with a report
endorsed thereon or annexed thereto stating that he has
so affixed the copy, the circumstances under which he did
do, and the name and address of the person (if any) by
whom the house was identified and in whose presence
the copy was affixed;
(g) where the proceedee or any adult member of his or
her family or her is not found at the residence, a copy of
the notice shall be pasted in a conspicuous place of his or
her residence, witnessed by one respectable person of the
locality, subject to his or her availability and willingness to
be a witness in that regard and the process server shall
obtain the signature or the thumb impression of that person
in the manner in which such service is affected;
(h) where the proceedee resides outside the jurisdiction
of the Foreigners Tribunal, the notice shall be sent for
service to the officer incharge of the police station within
whose jurisdiction the proceedee resides or last resided
or is last known to have resided or worked for gain and
the process server shall then cause the service of notice
in the manner as provided hereinabove;
(i) if no person is available or willing to be the witness of
service of notice or refuses to put his or her signature or
thumb impression the process server shall file a signed
certificate or verification to that effect, which shall be
sufficient proof of such non-availability, unwillingness and
refusal;
(j) on receipt of the signed certificate or verification referred
to in clause (i) the Foreigners Tribunals shall return such
references with such directions as it thinks fit to the
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competent authority for tracing out the proceedee and
produce before the said Tribunal.
(6) Where the proceedee appears or is brought before the
Foreigners Tribunal and he produces the documents in
support of his claim, the Foreigners Tribunal may release
such person on bail and decide the matter accordingly.
(7) In case where notice is duly served, the proceedee
shall appear before the Foreigners Tribunal in person or
by a counsel engaged by him or her, as the case may be,
on every hearing before the Foreigners Tribunal.
(8) The Foreigners Tribunal shall give the proceedee ten
days time to give reply to the show-cause notice and
further ten days time to produce evidence in support of
his or her case.
(9) The Foreigners Tribunal may refuse a prayer for
examination of witnesses on Commission for production
of documents if, in the opinion of the Foreigners Tribunal,
such prayer is made to delay the proceedings.
(10) The Foreigners Tribunal shall take such evidence
as may be produced by the concerned Superintendent
of Police.
(11) The Foreigners Tribunal shall hear such persons as,
in its opinion, are required to be heard.
(12) The Foreigners Tribunal may grant adjournment of
the case on any plea sparingly and for reasons to be
recorded in writing.
(13) Where the proceedee fails to produce any proof in
support of his or her claim that he or she is not a foreigner
and also not able to arrange for bail in respect of his or
her claim, the proceedee shall be detained and kept in
internment or detention centre;
(14) The Foreigners Tribunal shall dispose of the case
within a period of sixty days of the receipt of the reference
from the competent authority.
(15) After the case has been heard, the Foreigners Tribunal
shall submit its opinion as soon thereafter as may be
[2024] 7 S.C.R. 2347

Md. Rahim Ali @ Abdur Rahim v. The State of Assam & Ors.

practicable, to the officer or the authority specified in this
behalf in the order of reference.
(16) The final order of the Foreigners Tribunal shall contain
its opinion on the question referred to which shall be a
concise statement of facts and the conclusion.”
(emphasis supplied)
28. The case against the appellant was initiated in the year 2004 alleging
that the appellant illegally migrated to India after 25.03.1971 from
Village- Dorijahangirpur, Police Station - Torail, District- Mymansingh,
Bangladesh and was living in Village Kasimpur, Police Station,
District - Nalbari in the State of Assam in S.P. Reference No.948/2004.
It appears that the State examined a Sub-Inspector of Police Sh.
Bipin Dutta, who was the Investigating Officer in the case and in his
evidence, has stated that on 12.05.2004, he was posted at Nalbari
Police Station when the S.P. (B) Nalbari, directed him to enquire into
the nationality of the appellant pursuant to which on 17.05.2004, he
opened a Case Diary and went to the house of the appellant, informed
him about the enquiry and filled up Form No.I. This reference was
made by the Superintendent of Police under Section 8(1) of the
Illegal Migrants (Determination by Tribunals) Act, 1982 (hereinafter
referred to as the “IMDT Act”), suspecting the appellant to be an
illegal migrant on the ground that on being asked, he could not
produce any documentary evidence in support of his/her entry into
India, prior to 01.01.1966.
29. Thus, IMDT Case No.692/05 was registered before the then IMD
Tribunal, Nalbari. The same case was re-registered under the 1964
Order as F.T.(Nal) Case No.(N)1096/06 upon the IMDT Act being
declared unconstitutional by this Court in Sarbananda Sonowal I
(supra) on 12.07.2005.
30. Consequently, the notice issued under Section 8(1), IMDT Act became
a nullity and therefore F.T.(Nal) Case No.(N) 1096/06 was started
and a reference was made to the Tribunal. The Tribunal answered
the reference by order dated 19.03.2012 as under:
“This is a reference u/s 2(1) of the Foreigner’s Tribunal
(Order) 1964 for opinion whether O.P. Md. Rahim Ali son
of Late Solimuddin Ali of Village Kasimpur Police Statin
and District nalbari, Assam is a foreigner or not. The
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reference is that O.P. Ms. Rahim Ali illegally migrated to
India after 25th March, 1971 from village Darijahangirpur
Police Station Tarail District Mymansingh Bangladesh and
is living in village Kasimpur Police Station and District
nalbari, Assam.
Notice was serve upon the O.P. and the O.P. appeared in
the case and prayed time for filing written statement by
submitting petition. Thereafter 0.P. became absent without
step for which the case preceded ex-parte.
State examined S.I. of police Sri Bipin Dutta who is I/O of
this case and he deposed in his evidence that on 12.5.04
he was at Nabari Police Station and on that day, S.P. (B)
Nalbari, directed him to enquire the nationality of suspect
Ms. Rahim Ali of village Kasimpur Police Station Nalbari.
On 17.5.04 he opened the Case Diary and went to the
house of suspect Rahim Ali with staff. He met the suspect
in his house and informed, him about the enquiry and
filled up Form No.I as per version of suspect. Then we
asked the suspect to show the documents regarding his
India nationality. Then suspect told him that he has no
documents in his hand and he can show the documents if
time allowed. Then he recorded the statement of suspect
Rahim Ali and witness Samin Bore and kept in the Case
Diary. He gave 7 days time to the suspect to show the
documents but, the suspect failed to do so. Then he filled
up Form No.II and submitted his report to the authority
with the case diary. Form enquiry it reveals that suspect.
Rahim Ali illegally migrated to Assam from Bangladesh
after 25th march, 1971.
O.P. has failed to discharges his burden U/s 9 of the
Foreigner’s Act and failed to prove that he is not a
foreigner.
Considering the above, I am of the opinion that
O.P. Md. Rahim Ali is a foreigner.
Sd/- B.K. Sarma
Member, F.T. Balbari”
(sic)
[2024] 7 S.C.R. 2349

Md. Rahim Ali @ Abdur Rahim v. The State of Assam & Ors.

31. Some repetition in narration is inescapable. As obvious from the
above, the initiation of the case against the appellant was based on
the report submitted by the Sub-Inspector Sh. Bipin Dutta which in
turn was based on the fact that in his deposition he had stated that
upon being directed by the S.P. (B), Nalbari, he had undertaken an
inquiry against the appellant and asked him to show the documents
regarding his Indian nationality, whereupon the appellant had asked for
time and was given 7 days’ time, but did not show any document(s)
and thus, Sh. Bipin Dutta filled up Form No.II and submitted his
report along with the case diary before the authority.
32. It is further stated that from such inquiry it is revealed that the appellant
had illegally migrated to Assam from Bangladesh after 25.03.1971
and based on the same, the opinion given was that the appellant
was a foreigner.
33. Section 9 of the Act stipulates if in a case not falling under Section 8
of the Act, any question arises as to whether a person is or is not a
foreigner or is or is not a foreigner of a particular class, the person
concerned must prove that he/she is not a foreigner or not a foreigner
of that particular class. This provision prevails notwithstanding
anything in the Indian Evidence Act, 1872.
34. However, the question is that does Section 9 of the Act empower
the Executive to pick a person at random, knock at his/her/their
door, tell him/her/they/them ‘We suspect you of being a foreigner.’,
and then rest easy basis Section 9? Let us contextualise this to the
facts at hand. The originating point of inquiry is the S.P. (B) Nalbari’s
direction to Sub-Inspector Dutta on 12.05.2004. The pleadings
and the record are silent as to what was the basis of the S.P. (B)
Nalbari’s direction? What materials or information had come to his
knowledge or possession that warranted his direction? Obviously,
the State cannot proceed in such manner. Neither can we as a Court
countenance such approach.
35. First, it is for the authorities concerned to have in their knowledge
or possession, some material basis or information to suspect that a
person is a foreigner and not an Indian. In the present case, though
it is mentioned that from inquiry it was revealed that the appellant
had migrated illegally to the State of Assam from Bangladesh
after 25.03.1971 but nothing has come on record to indicate even
an iota of evidence against him, except for the bald allegation that
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he had illegally migrated to India post 25.03.1971. It is also not
known as to who, if any person, had alleged that the appellant had
migrated to India after 25.03.1971 from Village - Dorijahangirpur,
Police Station - Torail, District - Mymansingh in Bangladesh. It needs
no reiteration that a person charged or accused would generally
not be able to prove to the negative, if he/she is not aware of
the evidence/material against him/her which leads to the person
being labelled suspect. Ipso facto just an allegation/accusation
cannot lead to shifting of the burden to the accused, unless he/
she is confronted with the allegation as also the material backing
such allegation. Of course, at such stage, the evidentiary value of
the material would not be required to be gone into, as the same
would be done by the Tribunal in the reference. However, mere
allegation, that too, being as vague as to mechanically reproduce
simply the words which mirror the text of provisions in the Act
cannot be permitted under law. Even for the person to discharge
the burden statutorily imposed on him by virtue of Section 9 of the
Act, the person has to be intimated of the information and material
available against him, such that he/she can contest and defend
the proceedings against him.
36. In the present case, it was specifically alleged that the appellant had
come to Assam from Village - Dorijahangirpur, Police Station - Torail,
District - Mymansingh in Bangladesh while making a reference to
the Tribunal. Hence, it was incumbent on the authority making the
reference to provide details as to how it had received such information
as also its bona fide belief of such factum being true. In other words,
the authority had been, as claimed, able to trace the appellant’s place
of origin. Surely then, the authority had some material to back its
assertion. The record does not show such material was given either
to the appellant or the Tribunal by the authority.
37. In the absence of the basic/primary material, it cannot be left to
the untrammelled or arbitrary discretion of the authorities to initiate
proceedings, which have life-altering and very serious consequences
for the person, basis hearsay or bald and vague allegation(s). In
neither round of the proceedings before the Tribunal, whether it be
the initial ex-parte one, or even after the matter was referred by this
Court to the Tribunal to hear the appellant and pass an order, has it
been revealed as to how and from where such specific allegation,
down to the alleged village of origin of the appellant in Bangladesh
[2024] 7 S.C.R. 2351

Md. Rahim Ali @ Abdur Rahim v. The State of Assam & Ors.

was brought to or came to the knowledge of the authorities. Nor do
we locate any supporting material.
38. In the present case, clearly the authorities concerned have gravely
faulted by construing the words ‘a copy of the main grounds on which
he is alleged to be a foreigner’ in Para 3(1) of the 1964 Order to
mean the allegations levelled against the person. This error at the
very inception stage is enough to render a fatal blow to the entire
exercise undertaken. The term ‘main grounds’ is not synonymous or
interchangeable with the term ‘allegation(s)’. There is no, and there
cannot be any, ambiguity that ‘main grounds’ is totally distinct and
different from the ‘allegation’ of being ‘a foreigner’.
39. For avoidance of doubt, we may restate that this does not imply
that strict proof of such allegation has to be given to the accused
person but the material on which such allegation is founded has to
be shared with the person. For obvious reasons and as pointed out
hereinbefore, at this stage, the question of the evidentiary nature of
the material and/or its authenticity is not required. However, under
the garb of and by taking recourse to Section 9 of the Act, the
authority, or for that matter, the Tribunal, cannot give a go-by to the
settled principles of natural justice. Audi alteram partem does not
merely envisage a fair and reasonable opportunity of being heard.
In our opinion, it would encompass within itself the obligation to
share material collected with the person/accused concerned. It is
no longer res integra that principles of natural justice need to be
observed even if the statute is silent on that aspect, as laid down in
Mangilal v State of Madhya Pradesh (2004) 2 SCC 447:
‘10. Even if a statute is silent and there are no positive words
in the Act or the Rules made thereunder, there could be
nothing wrong in spelling out the need to hear the parties
whose rights and interest are likely to be affected by the
orders that may be passed, and making it a requirement
to follow a fair procedure before taking a decision, unless
the statute provides otherwise. The principles of natural
justice must be read into unoccupied interstices of the
statute, unless there is a clear mandate to the contrary. No
form or procedure should ever be permitted to exclude the
presentation of a litigant’s defence or stand. Even in the
absence of a provision in procedural laws, power inheres in
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every tribunal/court of a judicial or quasi-judicial character,
to adopt modalities necessary to achieve requirements of
natural justice and fair play to ensure better and proper
discharge of their duties. Procedure is mainly grounded on
the principles of natural justice irrespective of the extent of
its application by express provision in that regard in a given
situation. It has always been a cherished principle. Where
the statute is silent about the observance of the principles
of natural justice, such statutory silence is taken to imply
compliance with the principles of natural justice where
substantial rights of parties are considerably affected. The
application of natural justice becomes presumptive, unless
found excluded by express words of statute or necessary
intendment. Its aim is to secure justice or to prevent
miscarriage of justice. Principles of natural justice do not
supplant the law, but supplement it. These rules operate
only in areas not covered by any law validly made. They
are a means to an end and not an end in themselves. …’
(emphasis supplied)
40. The initial infirmity of there being nothing on record as regards what
grounds or material were actually available with the authorities to
question the appellant’s status as to his nationality, is fatal to the
projected case. The appellant had obtained documents/certificates
from various officers with regard to his/his parents’ continuous
presence in India much prior to the date 25.03.1971, which were
produced before the Tribunal and have been noted by the Tribunal in
its report dated 16.11.2017. Another relevant aspect is the prevalent
situation on the ground where uninformed/illiterate persons or
persons not being well-informed, in the absence of any requirement
to obtain and hold an official document and without possessing
property in their own names, would not have any official document
issued by the government, State or Central. It is neither difficult nor
inconceivable to fathom such scenario amongst the rural populace,
including within Assam.
41. The evidence produced before the Tribunal by the appellant to indicate
that his parents had been resident in India much prior to 01.01.1966
whereas his siblings and he himself much prior to 25.03.1971,
has been disbelieved only on the ground of mismatch of actual
[2024] 7 S.C.R. 2353

Md. Rahim Ali @ Abdur Rahim v. The State of Assam & Ors.

English spelling of the names and discrepancy in dates. As far as
the discrepancy(ies) in dates and spellings are concerned, we are
of the view that the same are minor in nature. Variation in name
spelling is not a foreign phenomenon in preparation of the Electoral
Roll. Further, the Electoral Roll has no acceptance in the eyes of
law insofar as proof of date of birth is concerned. A casual entry by
the enumerators when noting and entering the name(s) and dates
of birth(s) as also the address(es) of the person(s) while making
preparatory surveys for the purposes of preparing the Electoral Rolls
cannot visit the appellant with dire consequences. Moreover, in our
country, sometimes a title is prefixed or suffixed to a name such that
the same person may be known also by one or two aliases. The
Tribunal seems to have been totally oblivious to all this.
42. The State of Assam, as per the Census 2011, boasts of 72.19%
literacy rate, with females at 66.27% and males at 77.85%. However,
this was not the case during the 1960s or even 1970s. Not just in
Assam but in many States, it is seen that names of people, even
on important government documents can have and do have varied
spellings depending on them being in English or Hindi or Bangla or
Assamese or any other language, for that matter. Moreover, names of
persons which are written either by the persons preparing the Voters
List or by the personnel making entries into different Government
records, the spelling of the name, based upon its pronunciation, may
take on slight variations. It is not uncommon throughout India that
different spellings may be written in the regional/vernacular language
and in English. Such/same person will have a differently spelt name
in English and the local language. This is more pronounced where
due to specific pronunciation habits or styles there can be different
spellings for the same name in different languages viz. English/Hindi/
Urdu/Assamese/Bangla etc.
43. The appellant had produced a document showing that his father
and mother had been resident of Village Dolur Pather since 1965;
that his sibling had also been declared not to be a foreigner by
the Tribunal, and; his elder brother and he were both voters as
per the 1985 Electoral Roll relating to 41 Bhabanipur Legislative
Assembly Constituency. Further, upon his marriage, the appellant
came to Village Kasimpur in District - Nalbari, Assam where his name
appeared in the Electoral Roll of 1997 for 61 Dharmapur Legislative
Assembly Constituency.
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44. From an overall discussion on the Report/opinion of the Tribunal
dated 16.11.2017, it is clear that there are minor discrepancy(ies)
in the appellant’s documents, however their authenticity is not in
doubt. In the considered opinion of this Court, the same would further
buttress the appellant’s claim, that not being in the wrong, and being
an ignorant person, he, truthfully and faithfully produced the official
records as they were in his possession. We do not see any attempt
by the appellant to get his official records prepared meticulously
without any discrepancy. The conduct of an illegal migrant would
not be so casual.
45. The debate has long been settled that penal statutes must
be construed strictly [Tolaram Relumal v State of Bombay
(1955) 1 SCR 158 at Para 8;6 Krishi Utpadan Mandi Samiti v
Pilibhit Pantnagar Beej Ltd. (2004) 1 SCC 391 at Paras 57-58;7
Govind Impex Pvt. Ltd. v Appropriate Authority, Income Tax Dept.

6 ‘8. The question that needs our determination in such a situation is whether Section 18(1) makes
punishable receipt of money at a moment of time when the lease had not come into existence, and
when there was a possibility that the contemplated lease might never come into existence. It may be
here observed that the provisions of Section 18(1) are penal in nature and it is a well-settled rule of
construction of penal statutes that if two possible and reasonable constructions can be put upon a
penal provision, the court must lean towards that construction which exempts the subject from penalty
rather than the one which imposes penalty. It is not competent to the court to stretch the meaning of an
expression used by the legislature in order to carry out the intention of the legislature. As pointed out
by Lord Macmillan in London and North Eastern Railway Co. v. Berriman [1946 AC 278, 295] “where
penalties for infringement are imposed it is not legitimate to stretch the language of a rule, however,
beneficient its intention, beyond the fair and ordinary meaning of its language”.’
7 ‘57. Although the dictionary meaning of business may be wide, in our opinion, for the purpose of
considering the same in the context of regulatory and penal statute like the Act, the same must be read
as carrying on a commercial venture in agricultural produce. The rule of strict construction should be
applied in the instant case. The intention of the legislature in directing the trader to obtain licence is
absolutely clear and unambiguous insofar as it seeks to regulate the trade for purchase and sale. Thus
a person who is not buying an agricultural produce for the purpose of selling it whether in the same
form or in the transformed form may not be a trader. Furthermore, it is well known that construction of
a statute will depend upon the purport and object of the Act, as has been held in Sri Krishna Coconut
case [AIR 1967 SC 973] itself. Therefore, different provisions of the statute which have the object of
enforcing the provisions thereof, namely, levy of market fee, which was to be collected for the benefit of
the producers, in our opinion, is to be interpreted differently from a provision where it requires a person
to obtain a licence so as to regulate a trade. It is now well known that in case of doubt in construction of
a penal statute, the same should be construed in favour of the subject and against the State.
58. In the case of London and North Eastern Rly. Co. v. Berriman [1946 AC 278 : (1946) 1 All ER 255
(HL)] , Lord Simonds quoted with approval (at All ER p. 270 C-D) the following observations of Lord
Esher, M.R. in the case of Tuck & Sons v. Priester [(1887) 19 QBD 629 : 56 LJ QB 553 (CA)], QBD at
p. 638:
“We must be very careful in construing that section, because it imposes a penalty. If there is
a reasonable interpretation which will avoid the penalty in any particular case we must adopt
that construction. If there are two reasonable constructions we must give the more lenient
one. That is the settled rule for the construction of penal sections.”
It is trite that fiscal statute must not only be construed literally, but also strictly. It is further well known that
if in terms of the provisions of a penal statute a person becomes liable to follow the provisions thereof it
should be clear and unambiguous so as to let him know his legal obligations and liabilities thereunder.’
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(2011) 1 SCC 529 at Para 11,8 and; Commissioner of Customs
(Import), Mumbai v Dilip Kumar & Company (2018) 9 SCC 1 at
Para 249]. Equally, ‘If special provisions are made in derogation to the
general right of a citizen, the statute, in our opinion, should receive
strict construction. …’10 The consequences which would befall the
person declared as a foreigner are no doubt penal and severe. The
moment a person is declared to be a foreigner, he/she is liable to
be detained and deported to the country of his/her origin. Thus, the
same would necessarily pre-suppose existence of material to (a) prove
the person is not an Indian national, and (b) establish or identify his/
her country of origin. Herein, on the facts, the authorities have not
been able to succeed either on (a) or on (b). Another possibility is
that if the foreign country refuses to accept the foreigner, he would
be rendered stateless, and languish for the remainder of his life in
confinement.
46. Notably, under the Constitution of India, Part III [Fundamental Rights]
distinguishes between citizens and non-citizens. Articles 14, 20, 21,
22, 25 and 27 are available to all persons. We have kept in mind
Articles 1411 and 2112 of the Constitution while penning down this
judgment.

8 ‘11. Mr Salve submits that a statute providing for penal prosecution has to be construed strictly. He
refers to Clause 12 aforesaid and contends that it shall govern the field. Mr Bhatt submits that it is
Clause 1 of the lease deed which shall govern the issue. We do not have the slightest hesitation in
accepting the broad submission of Mr Salve that a penal statute which makes an act a penal offence or
imposes penalty is to be strictly construed and if two views are possible, one favourable to the citizen is
to be ordinarily preferred but this principle has no application in the facts of the present case. There is
no serious dispute in regard to the interpretation of Explanation to Section 269-UA(f) of the Act and in
fact, we are proceeding on an assumption that it will cover only such cases where exists provision for
extension in lease deed.’
9 ‘24. In construing penal statutes and taxation statutes, the Court has to apply strict rule of interpretation.
The penal statute which tends to deprive a person of right to life and liberty has to be given strict
interpretation or else many innocents might become victims of discretionary decision-making. Insofar as
taxation statutes are concerned, Article 265 of the Constitution [“265. Taxes not to be imposed save
by authority of law.— No tax shall be levied or collected except by authority of law.”] prohibits the State
from extracting tax from the citizens without authority of law. It is axiomatic that taxation statute has to
be interpreted strictly because the State cannot at their whims and fancies burden the citizens without
authority of law. In other words, when the competent Legislature mandates taxing certain persons/certain
objects in certain circumstances, it cannot be expanded/interpreted to include those, which were not
intended by the legislature.’
10 Karnataka State Financial Corporation v N Narasimhaiah (2008) 5 SCC 176 at Para 18.
11 ‘14. Equality before law.— The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.’
12 ‘21. Protection of life and personal liberty.— No person shall be deprived of his life or personal liberty
except according to procedure established by law.’
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47. In Mukesh Singh v State (Narcotic Branch of Delhi) (2020) 10
SCC 120, a Bench of 5 learned Judges held:
‘11.3. Now so far as the observations made by this Court
in para 13 in Mohan Lal [Mohan Lal v. State of Punjab
(2018) 17 SCC 627 : (2019) 4 SCC (Cri) 215] that in the
nature of reverse burden of proof, the onus will lie on
the prosecution to demonstrate on the face of it that the
investigation was fair, judicious with no circumstance that
may raise doubt about its veracity, it is to be noted that
the presumption under the Act is against the accused as
per Sections 35 and 54 of the NDPS Act. Thus, in the
cases of reverse burden of proof, the presumption can
operate only after the initial burden which exists on the
prosecution is satisfied. At this stage, it is required to be
noted that the reverse burden does not merely exist in
special enactments like the NDPS Act and the Prevention
of Corruption Act, but is also a part of the IPC — Section
304-B and all such offences under the Penal Code are to
be investigated in accordance with the provisions of CrPC
and consequently the informant can himself investigate
the said offences under Section 157 CrPC.’
(emphasis supplied)
48. Before Mukesh Singh (supra), 2 learned Judges of this Court, in
Noor Aga v State of Punjab (2008) 16 SCC 417, had examined the
imposition of a reverse burden, on an accused, under the Narcotic
Drugs and Psychotropic Substances Act, 1985. While holding the
provisions concerned imposing reverse burden as not ultra vires the
Constitution, it was held:
’54. Provisions imposing reverse burden, however, must
not only be required to be strictly complied with but also
may be subject to proof of some basic facts as envisaged
under the statute in question.
xxx
56. The provisions of the Act and the punishment prescribed
therein being indisputably stringent flowing from elements
such as a heightened standard for bail, absence of any
provision for remissions, specific provisions for grant of
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minimum sentence, enabling provisions granting power to
the court to impose fine of more than maximum punishment
of Rs 2,00,000 as also the presumption of guilt emerging
from possession of narcotic drugs and psychotropic
substances, the extent of burden to prove the foundational
facts on the prosecution i.e. “proof beyond all reasonable
doubt” would be more onerous. A heightened scrutiny
test would be necessary to be invoked. It is so because
whereas, on the one hand, the court must strive towards
giving effect to the parliamentary object and intent in the
light of the international conventions, but, on the other, it
is also necessary to uphold the individual human rights
and dignity as provided for under the UN Declaration of
Human Rights by insisting upon scrupulous compliance
with the provisions of the Act for the purpose of upholding
the democratic values. It is necessary for giving effect to
the concept of “wider civilisation”. The court must always
remind itself that it is a well-settled principle of criminal
jurisprudence that more serious the offence, the stricter is
the degree of proof. A higher degree of assurance, thus,
would be necessary to convict an accused. In State of
Punjab v. Baldev Singh [(1999) 6 SCC 172: 1999 SCC
(Cri) 1080] it was stated: (SCC p. 199, para 28)
“28. … It must be borne in mind that severer the
punishment, greater has to be the care taken to see that
all the safeguards provided in a statute are scrupulously
followed.”
(See also Ritesh Chakarvarti v. State of M.P. [(2006) 12
SCC 321: (2007) 1 SCC (Cri) 744])
57. It is also necessary to bear in mind that superficially
a case may have an ugly look and thereby, prima facie,
shaking the conscience of any court but it is well settled
that suspicion, however high it may be, can under no
circumstances, be held to be a substitute for legal
evidence.
58. Sections 35 and 54 of the Act, no doubt, raise
presumptions with regard to the culpable mental state on
the part of the accused as also place the burden of proof
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in this behalf on the accused; but a bare perusal of the
said provision would clearly show that presumption would
operate in the trial of the accused only in the event the
circumstances contained therein are fully satisfied. An
initial burden exists upon the prosecution and only when
it stands satisfied, would the legal burden shift. Even then,
the standard of proof required for the accused to prove
his innocence is not as high as that of the prosecution.
Whereas the standard of proof required to prove the guilt of
the accused on the prosecution is “beyond all reasonable
doubt” but it is “preponderance of probability” on the
accused. If the prosecution fails to prove the foundational
facts so as to attract the rigours of Section 35 of the Act,
the actus reus which is possession of contraband by the
accused cannot be said to have been established.
xxx
63. Placing persuasive burden on the accused persons
must justify the loss of protection which will be suffered
by the accused. Fairness and reasonableness of trial as
also maintenance of the individual dignity of the accused
must be uppermost in the court’s mind.’
(emphasis supplied)
49. In Sarbananda Sonowal v Union of India (2007) 1 SCC 174
[hereinafter referred to as Sarbananda Sonowal II], it was held:
‘55. There cannot, however, be any doubt whatsoever that
adequate care should be taken to see that no genuine
citizen of India is thrown out of the country. A person
who claims himself to be a citizen of India in terms of the
Constitution of India or the Citizenship Act is entitled to
all safeguards both substantive and procedural provided
for therein to show that he is a citizen.
56. 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.
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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.
57. In Hiten P. Dalal v. Bratindranath Banerjee [(2001)
6 SCC 16: 2001 SCC (Cri) 960] this Court categorically
opined: (SCC pp. 24-25, paras 22-23)
“22. … 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 law
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’.
Therefore, the rebuttal does not have to be conclusively
established but such evidence must be adduced before the
court in support of the defence that the court must either
believe the defence to exist or consider its existence to be
reasonably probable, the standard of reasonability being
that of the ‘prudent man’.”
xxx
60. 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
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satisfied itself about the existence of grounds, the burden
of proof would be upon the proceedee.
61. In Sonowal I [(2005) 5 SCC 665] this Court clearly 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.’
(emphasis supplied)
50. Evidently, our understanding and exposition of the law in the preceding
paragraphs can be read with Sarbananda Sonowal I (supra) and
Sarbananda Sonowal II (supra). It embodies meaning as to what
is expected of the authorities till the stage of Section 9 of the Act
arrives. The statutory burden would kick in thereafter.
51. 5 learned Judges of this Court in Union of India v Ghaus Mohammad,
1961 SCC OnLine SC 2 held:
‘6. Section 9 of this Act is the one that is relevant. That
section so far as is material is in these terms:
“xxx”
It is quite clear that this section applies to the present case
and the onus of showing that he is not a foreigner was
upon the respondent. The High Court entirely overlooked
the provisions of this section and misdirected itself as to
the question that arose for decision. It does not seem to
have realised that the burden of proving that he was not
a foreigner, was on the respondent and appears to have
placed that burden on the Union. This was a wholly wrong
approach to the question.’
52. However, the above conclusion was premised on what the Court
noted in the preceding paragraph in Ghaus Mohammad (supra):
‘2. The High Court observed that: “There must be prima
facie material on the basis of which the authority can
proceed to pass an order under Section 3(2)(c) of the
Foreigners Act, 1946. No doubt if there exists such a
material and then the order is made which is on the
face of it a valid order, then this Court cannot go into the
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question whether or not a particular person is a foreigner
or, in other words, not a citizen of this country because
according to Section 9 of the Citizenship Act, 1955, this
question is to be decided by a prescribed authority and
under the Citizenship Rules, 1956, that authority is the
Central Government”. The High Court then examined the
materials before it and held, “in the present case there was
no material at all on the basis of which the proper authority
could proceed to issue an order under Section 3(2)(c) of
the Foreigners Act, 1946”. In this view of the matter the
High Court quashed the order.’
53. We need not be detained on Ghaus Mohammad (supra) as it is
clear that therein, the Punjab High Court (Circuit Bench) at Delhi
had conflated the Act with the Citizenship Act. Fateh Mohd. v Delhi
Administration, 1963 Supp (2) SCR 560 by a 4-Judge Bench and
Masud Khan v State of Uttar Pradesh (1974) 3 SCC 469 [3-Judge
Bench] followed Ghaus Mohammad (supra). We are of the opinion
that the facts therein were also different than what stares us in the
case at hand. No doubt the principles of law stand, yet we see no
real difficulty in our formulations hereinabove harmonising with what
has been held in the gamut of case-law. As such, the burden under
Section 9 of the Act would operate in the manner delineated by us,
factoring in the imperative to maintain consistency amongst Ghaus
Mohammad (supra), Sarbananda Sonowal I (supra), Sarbananda
Sonowal II (supra), Mukesh Singh (supra) and this judgment.
54. For and on the strength of the totality of reasons afore-indicated, this
Court finds that the report/opinion of the Tribunal dated 16.11.2017,
as sought by this Court through order dated 28.07.2017,13 is wholly
unsustainable. Accordingly, the report/opinion dated 16.11.2017 is
quashed. As the report/opinion dated 16.11.2017 has been examined
threadbare by us, we have no hesitation in setting aside the
Tribunal’s order dated 19.03.2012 as also the Impugned Judgment

13 ‘In the peculiar facts of the case, we would request the Foreign Tribunal, Nalbari, to examine the
documents filed by the petitioner on the basis of which the petitioner is claiming that he is not a foreigner
but a national of this country. The petitioner shall appear before the Tribunal on 21.08.2017 and give the
copies of the documents which are filed along with this petition. The Tribunal shall thereafter undertake
an inquiry into those documents and submit its report.
List the matter after four months.
In the meantime, the petitioner shall not be deported.’
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dated 23.11.2015 passed by the High Court. In any event, once
this Court had passed the order dated 28.07.2017 (supra) calling
for a fresh report/opinion, the sequitur logically would translate into
the Tribunal’s order dated 19.03.2012 and the Impugned Judgment
becoming susceptible to being quashed. It is so ordered.
55. This Court has found that the inferences drawn by the Tribunal do
not falsify the appellant’s claim. In view of detailed analysis, the
discrepancy(ies) in the material produced by the appellant can be
termed minor. The same were not sufficient to lead the Tribunal to
doubt and disbelieve the appellant and the version put forth by him.
Thus, we are not inclined to remand the matter to the Tribunal for
another round of consideration. Putting an authoritative quietus to the
issue, the appellant is declared an Indian citizen and not a foreigner.
56. Necessary consequences in law shall follow.
57. The appeal would, accordingly, stand allowed on the aforementioned
terms, without any order as to costs.
58. Let a copy of the judgment be circulated to the Tribunals constituted
under the 1964 Order by the Registrar General of the High Court.

Result of the case: Appeal allowed.

†
Headnotes prepared by: Ankit Gyan