SIRAJUL HOQUEversusTHE STATE OF ASSAM & ORS.

                         [2019] 3 S.C.R. 1047                              1047


                         SIRAJUL HOQUE                                     A
                                   v.
                  THE STATE OF ASSAM & ORS.
                  (Criminal Appeal No. 267 of 2019)
                        FEBRUARY 14, 2019                                  B
         [R. F. NARIMAN AND VINEET SARAN, JJ.]
      Foreigners’ Act, 1946:
       s.9 – Burden of proof – Citizenship status of proceedee –
Appellant declared foreigner by the Foreigner’s Tribunal holding           C
that there was discrepancy in the name of the grandfather – Upheld
by the High Court – On appeal held: Appellant’s great grandfather’s
name and father’s name appear the same throughout the document
– However, only discrepancy is found in grand father’s name – In
some of the documents Kefatullah later became Kematullah and in
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NRC Registration details of the year 1971, grandfather noted to be
Kefatullah – Appellant also produced Permanent Account Number,
including photo identity cards issued by the Election Commission
of India, identity cards issued to his brother including voters lists in
which his name appears – In view thereof, it cannot be said that
Kematullah is not the same despite being named Kefatullah in some          E
of the documents – Grandfather and fathers’ identity etc. established
successfully by the appellant – Further, the mere fact that the father
may later have gone to another village is no reason to doubt this
document – Thus, the judgment of the High Court as well as
Foreigner’s Tribunal set aside.
                                                                           F
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 267 of 2019.
     From the Judgment and Order dated 13.06.2017 of the High Court
at Guwahati (The High Court of Assam, Nagaland, Mizoram and
Arunachal Pradesh) in W.P. (C) No. 1011 of 2017.                           G
      Pijush K. Roy, Mrs. Kakali Roy, Rajan K. Chourasia, Advs. for
the Appellant.
     Tushar Mehta, SG, Ms. Madhvi Diwan, ASG, Shuvodeep Roy,
Riju K. Sarkar, Ms. Aishwarya Bhati, Ms. Shraddha Deshmukh,
Damodar Solanki, B.V. Balaram Das, Advs. for the Respondents.              H
                              1047
1048                SUPREME COURT REPORTS                          [2019] 3 S.C.R.


 A           The Judgment of the Court was delivered by
             R. F. NARIMAN, J. 1. Leave granted.
              2. The present appeal raises an issue as to whether the appellant
       herein has been declared to be a foreigner incorrectly. By the Foreigner’s
       Tribunal judgment dated 19.01.2017, after referring to some of the
 B     documents produced by the appellant, and after finding that there was a
       discrepancy in the name of the grandfather and the fact that the
       grandfather and the father later lived in different villages, the Tribunal
       declared the appellant to be a foreigner. The High Court dismissed the
       writ petition filed against the same judgment stating:
 C           “Having said that we may look into the written statement filed by
             the petitioner before the Tribunal. In a proceeding before the
             Foreigners’ Tribunal where the citizenship status of the proceedee
             is being questioned, that too, by the State, the proceedee must
             disclose all material facts within his special knowledge relevant
 D           for establishing his citizenship at the first instance itself i.e., in the
             written statement. In other words, he must be able to plead about
             his identity as a citizen of India. This would be as per the
             requirement of Section 9 of the Foreigners’ Act, 1946, which is in
             pari materia to the provision of Section 106 of the Evidence Act,
             1872. Thereafter, the material facts pleaded in the written
 E           statement are required to be proved in accordance with law by
             adducing cogent and reliable evidence. In the written statement,
             petitioner did not even mention his name; not to speak of his date
             of birth or year of birth. All that he stated was that he was born
             at Village-Sagolchora in the district of Dhubri and that his parents
 F           were voters in the voters’ list of 1997. His grand-parents were
             voters of 1966-1970. Only in the verification column, he described
             his name as Sirajul Haque. This is all that the petitioner stated in
             the written statement. This is not only inadequate but does not in
             any manner lead to the identification of the petitioner as an
             individual, not to speak of identification of the petitioner as a citizen
 G           of India. It is not a case of violation of the principles of natural
             justice or procedural impropriety. Neither can it be said to be a
             case of perversity.”
             3. We have heard learned counsel for both sides extensively and
       have gone through the documents produced by the appellant ourselves.
 H     On a perusal of the same, we find that a number of documents have
        SIRAJUL HOQUE v. THE STATE OF ASSAM & ORS.                                 1049
                    [R. F. NARIMAN, J.]

been relied upon by the appellant starting with a voters’ list of his              A
grandfather Kematullah in villge Sotobashjani. There is no doubt that
the great grandfather’s name Amtullah appears as Amtullah throughout
the document. Equally, there is no doubt about the father’s name which
appears as Hakim Ali throughout. The only discrepancy found is that in
some of the documents Kefatullah later becomes Kematullah. However,
                                                                                   B
what is important to note is that his father’s name Amtullah continues as
Amtullah and the other family members associated continued as such.
Also produced are NRC Registration details of the year 1971 of the
grandfather who is noted to be Kefatullah in this document. Other voters
lists are then produced where the letter F becomes the letter M with
other family names remaining the same. In fact, the appellant has himself          C
produced a document of 1981 from the Income Tax Department giving
his Permanent Account Number. Apart from these documents, certain
other later documents have also been produced including photo identity
cards issued by the Election Commission of India and identity cards
issued to his brother including voters lists in which the appellant’s name
                                                                                   D
appears.
        4. Having gone through these documents, we are of the view that
it is not possible to state that Kematullah is not the same despite being
named Kefatullah in some of the documents. This being so, the
grandfather’s identity, father’s identity etc. has been established
successfully by the appellant. Further, the mere fact that the father may          E
later have gone to another village is no reason to doubt this document.
       5. We, therefore, set aside the judgment of the High Court as well
as the Foreigner’s Tribunal and allow the appeal.
        6. As a result thereof, the appellant is liable to be set free at once.    F
Nidhi Jain                                                       Appeal allowed.




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