Saturday 3 January 2015

Admission of documents may amount to admission of contents but not its truth

 As has been held by the Apex Court in LICI Vs. Rampal Singh Bisen reported in (2010) 4 SCC 491, admission of documents in evidence does not amount to its proof, in other words, merely making of exhibit or a document does not dispense with its proof, which is required to be done in accordance with law. The documentary evidence adduced by the petitioner was also required to be proved in accordance with the provisions of the Evidence act which he failed to do. Under the Law of Evidence it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may also to admission of contents but not its truth. Apart from the aforesaid position of the case, the documents were also not produced and marked as required under the Evidence Act. Needless to say that the contents of the documents cannot be proved by merely filing in a Court.

IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C) NO.22/2014

 Rezia Khatun, The Union of India,

BEFORE
HON’BLE MR. JUSTICE B.K. SHARMA

Date of Judgment : .03.2014

Read original judgment here; click here


1. The petitioner, who has been declared to be a foreigner (illegal Bangladeshi migrant) by the Foreigners Tribunal, Goalpara, Assam, vide order dated 05.10.2013 in F.T Case No. 2941/G/10 (ERO Case No. 242 53/38) (State of Assam Vs. Rezia Khatun), has filed the instant writ petition challenging the said order.
2. As has been claimed in the writ petition, the petitioner aged 36 years is a Citizen of India by birth. She has placed reliance on the voter lists of 1966, 1970, 1975, 1989, 1985 and 1997, purportedly containing the name of her grandparents and uncle. According to the petitioner, her father died in an accident in the year 1974, and as such, his name did not appear in any voter list after 1970. She was brought up by her uncle Ajgor Ali. Her mother remarried with one Abdul Aziz and her name appeared in the voter list of 1979 and 1985.
3. According to the petitioner, she got married with one Sahjahan Ali in the year 1988 and their names appeared in the voter list of 1993 and 1997.
4. Above are the documents on the basis of which the petitioner claims to be an Indian Citizen by birth. However, the learned Tribunal having rejected the claim of the petitioner and having answered the reference in favour of the State by the aforesaid order, the petitioner has invoked the writ jurisdiction of this Court.
5. I have heard Mr. M.I. Hussain, learned counsel for the petitioner and Mr. M. Bhagabati, learned CGC. I have also heard Mr.
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N. Upadhyay, learned State Counsel. I have also perused the entire materials on record including the records received from the tribunal. My findings and conclusion are as follows.
6. As has been held by the Apex Court in Sarbananda Sonowal Vs. Union of India reported in AIR 2005 SC 2920, 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 authority of the State. As per the provisions of Section 9 of the Foreigners act, 1946, the burden of proof that he is an Indian citizen is on the proceedee. In the aforesaid case, dealing with the “Burden of Proof”, the apex Court in the aforesaid case of Sarbananda Sonowal, has made the following observation.
“18. Though in a criminal case the general rule is that the burden of proof is on the prosecution but if any fact is especially within the knowledge of the accused, he has to lead evidence to prove the said fact. In Shambhu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404 it was held as follows:
"Section 106 is an exception to S. 101. The latter with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and
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S. 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge."
In Collector of Customs, Madras v. D. Bhoormull, AIR 1974 SC 859, proceedings were initiated under Section 167(8)(c) of the Customs Act for confiscation of contraband or smuggled goods and it was observed:
"..............Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the accused, it is not obliged to prove them as part of its primary burden."
"...............On the principle underlying S. 106 Evidence Act, the burden to establish those facts is cast on the person concerned; and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty.
In State of West Bengal v. Meer Mohd. Umar, 2000(8) SCC 382, it was held that the legislature engrafted special rule in Section 106 of the Evidence Act to meet certain exceptional cases in which not only it would be impossible but disproportionately difficult for the prosecution to
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establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience. This principle was reiterated in Sanjai @ Kaka v. State (NCT of Delhi), (2001) 3 SCC 190 and Ezhil v. State of Tamil Nadu, AIR 2002 SC 2017.
In R. v. Oliver, 1943 All ER 800, the accused was charged with having sold sugar as a whole-sale seller without the necessary licence. It was held that whether the accused had a licence was a fact peculiarly within his own knowledge and proof of the fact that he had a licence lay upon him. It was further held that in the circumstances of the case the prosecution was under no necessity to give prima facie evidence of non-existence of a licence. In this case reference is made to some earlier decisions and it will be useful to notice the same. In R. v. Turner, (1916) 5 M & S 206 : 14 Digest 430, the learned Judge observed as follows:
"I have always understood it to be a general rule, that, if a negative averment be made by one party, which is peculiarly within the knowledge of the other, the party within whose knowledge it lies and who asserts the affirmative, is to prove it, and not he who avers the negative."
In Williams v. Russel, (1993) 149 LT 190, the learned Judge held as under:
"On the principle laid down in R. v. Turner and numerous other cases where it is an offence to do an act without lawful authority, the person who sets up the lawful authority must prove it and the prosecution need not prove the absence of lawful authority. I think the onus of the
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negative averment in this case was on the accused to prove the possession of the policy required by the statute."
19. Section 9 of the Foreigners Act regarding burden of proof is basically on the same lines as the corresponding provision is in U.K. and some other Western nations and is based upon sound legal principle that the facts which are peculiarly within the knowledge of a person should prove it and not the party who avers the negative.”
7. The issue relating to citizenship, particularly in Assam, will have to be considered keeping in mind that there is large scale illegal migration of Bangladeshi nationals to Assam. In this connection, the Apex Court has made the following significant observation in paragraph 38 of Sarbananda Sonowal (Supra).
“38. This being the situation, 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 Union of India to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution. Having regard to this constitutional mandate, the question arises whether the Union of India has taken any measures for that purpose.
45. As mentioned earlier, the influx of Bangladeshi nationals who have illegally migrated into Assam pose a threat to the integrity and security of north-eastern region. Their presence has changed the demographic character of that region and the local people of Assam have been reduced
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to a status of minority in certain districts.............................”
8. In the instant case, the learned Tribunal appreciating the evidence on record has held the petitioner to be a foreign national who illegally entered Assam after the cut-off date i.e. 25/03/1971. Such findings of fact cannot be lightly interfered with exercising writ jurisdiction unless it is shown to be a perverse finding or the finding being not based on the evidence on record. The writ Court exercising extra ordinary jurisdiction under Article 226 of the Constitution of India cannot sit on appeal over the findings of facts recorded by the Tribunal. Needless to say that this Court exercising its jurisdiction under Article 226 of the Constitution of India cannot re-appreciate the evidence produced before the Tribunal and on the basis of such re-appreciation of evidence arrived at a finding different from that recorded by such Tribunal. The set and laid down principle is that a question of fact once decided by the Tribunal on the basis of evidence on record, it is not appropriate for the High Court under Article 226 to re-appreciate the evidence and come to a different conclusion.
9. Keeping in mind the above principles, it is to be seen as to whether the findings arrived at by the Tribunal on the basis of evidence on record can be said to be perverse or devoid of appreciation of evidence on record or there is any error of law which has apparent on the face of the record. It is a well established principle that a finding of fact cannot be challenged under Article 226 on the ground that the evidence before the Tribunal was insufficient or inadequate to sustain the findings, as a writ Court is not a Court of appeal. So also errors in appreciation
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of documents or affidavits, or errors in drawing inferences, or omission to draw inferences; in other-words, errors of a Court of appeal only can examine and correct, are not amenable to correction in a certiorari proceeding. But, if it is shown that in recording the said findings, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which had influenced the impugned findings, the same can be assailed in a writ petition.
10. Before the Tribunal, the petitioner in her written statement, contended that her father’s name is late Rajab Ali and his name appeared in the voter list of 1966. According to the said written statement, she was born in 1974. In the written statement she had further contended that her father’s name also appeared in the voter list of 1970 and he died in 1974 due to an accident. Referring to the 1985 voter list, she also claimed in her written statement that her uncle’s name (Asgor Ali) appeared therein. She also stated that she was given on marriage to one Sahjahan Ali in the year 1988 and her name was first included in the voter list of 1993 followed by 1997. In support of her above claim, she produced the voter lists of 1966; 1970; 1975; 1979; 1985; 1989; 1993-1994 and 1997 (all photocopies).
11. The learned Tribunal appreciating the evidence on record has returned the following findings:-
“Thus to determine the above noted issue I have discussed entire evidence on record. The evidence on record and the written statement of the respondent along with in chief statement on affidavit becomes highly contradictory with that of primary evidence as well as cross examination
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of the respondent. Respondent in her very first line of her cross examination stated that after only 6 months of marriage she casted her first vote at house of her husband. During further cross examination she admitted that after one year 2/3 months of marriage she attained puberty at the house of her husband. Generally girls attained puberty at the age of 9/10 or 10/11 years of age. It is also a fact some girls attained puberty at age of 8 years and in case of some girls it goes to 12 years. So, we can consider 10/11 years range of attaining puberty. In her written statements as well as Para 6 of in chief evidence the learned advocate with his own hand writing stated that respondent was given marriage in 1988. If at all she was given marriage in year 1988, the respondent must have casted her first vote in 1989. The respondent did not furnish voter list of 1989 of village Simulbari because she was given marriage with Shahjahan Ali S/O Late Sulmat Ali of village Simulbari. When the respondent claimed her casting first vote, it is her bounden duty to produce voter list of 1989 of village Simulbari. On the other hand if at all she attained her puberty after 1 year 2/3 months of marriage then she must have attained her puberty at age of 10/11 years and her birth year is reflected to be 1980 or 1979 and not prior to that. The voter list produced by respondent of Simulbari 1997 shows her age to be 20 years and her enrolment was with her husband Shahjahan Ali and with other family members. The another voter list of 1997 from Garo Bhatkhowa shows her enrolment with her husband were shown to be 30 years. Interesting fact is both voter list are of one and same year one is from Simulbari and other is from Garo Bhatkhowa. The cross-examination of respondent
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shows that first she was taken to Simulbari and due to quarrel with Parents in law she along with her husband went to Garo Bhatkhowa. When Simulbari voter list of 1997 shows her age to be 20 years it proves the fact that her name was not at all either in 1989 noter list or 1993/1994 voter list on the ground that from 1989 the minimum age required for adult franchise is 18 years. If her name would have been enrolled in voter list of 1994, her age would have become 21 years on 1-1-1997. The voter list from Simulbari shows her age to be 20 years on 1-1-97 shows her marriage took place just before 1997 enrolment and not prior to that. As a result we calculated her age to be 10 years on 1-1-2005 at age of 18 years.
The respondent is totally illiterate woman who put her thumb impression on the written statement deposition etc. When the learned advocate state that marriage of respondent took place in 1988 under the circumstance the onus is upon the respondent as well as on the learned advocate to prove the same producing Kabin Nama of marriage that was not done in present case at hand. For argument we have considered her marriage to be in 1988 but cannot ignore her age to be 8/9 years as because in her oral evidence i.e. in cross examination she categorically admitted the fact that after one year 2/3 months of marriage she attained her puberty and as such her first son was born after two years of marriage. She also further admitted that her marriage was held at her minor age. If we consider that her birth year shall come to be 1979 or 1980. The Ld. Advocate at the time of preparation of evidence in chief in Para 4 tactfully avoided the year of death of father of
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respondent which is available in para 4 of written statement where it was stated that ‘her father was died in 1974 (approx) caused by accident’. In para 4 of statement of affidavit state that for death of her father at her childhood her mother Akaton Nessa got remarried with one Abdul Aziz of village Haldibari. So, she was brought up by her paternal uncle Azgor Ali. By producing Xerox copy of extract electoral roll 1979 of village Haldibari respondent proved the fact that Akaton Nessa her mother become W/O Abdul Aziz in that year. The learned advocate also in his written statement stated that the respondent was born in 1974. Thus it was burden of respondent to prove that she was born in 1994 by producing primary evidence. If at all respondent would have been born in 1974, she would attained puberty prior to 1985 and her age would have not proposed to be 20 years in 1997 from the side of her husband.”
12. The learned Tribunal has also discussed about the assertion made by the petitioner that her father expired in 1974 and subsequently her mother married another person. But, she failed to show the enrollment of her parents name (Rajab Ali and Akatun Nessa). In the voter list of 1997, one pertaining to village Simulbari and the other Bhatkhowa, the petitioner’s age is shown as 20 and 30 years, respectively. To prove one’s citizenship as envisaged u/s 9 of the Foreigners Act, 1946, the proceedee will have to discharge the burden of proof with cogent and trustworthy evidence. As discussed in the impugned order, there is apparent contradiction and no trustworthy evidence. With such contradictions, it will be too dangerous to declare the petitioner to
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be an Indian Citizen that too by birth. On perusal of the impugned order in reference to the evidence on record, it cannot be said to be a case of any wrong appreciation of evidence and/or record of perverse finding opposed to the evidence on record.
13. Above being the position, this Court exercising writ jurisdiction, cannot interfere with the same. As has been held by the Apex Court in LICI Vs. Rampal Singh Bisen reported in (2010) 4 SCC 491, admission of documents in evidence does not amount to its proof, in other words, merely making of exhibit or a document does not dispense with its proof, which is required to be done in accordance with law. The documentary evidence adduced by the petitioner was also required to be proved in accordance with the provisions of the Evidence act which he failed to do. Under the Law of Evidence it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may also to admission of contents but not its truth. Apart from the aforesaid position of the case, the documents were also not produced and marked as required under the Evidence Act. Needless to say that the contents of the documents cannot be proved by merely filing in a Court.
14. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed, without however, any order as to costs.
15. Registry may transmit the case records to the Tribunal.
16. The Superintendent of Police (B), Goalpara and the Deputy Commissioner, Goalpara are directed to take appropriate action in
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the matter towards deportation of the petitioner from India and deletion of her name from the voter list, if found to have entered.
17. Let copies of this judgment and order be furnished to the Superintendent of Police (B), Goalpara and the Deputy Commissioner, Goalpara. Another copy be sent to the Union of India in the Ministry of Home. An extra copy of this judgment and order may also be furnished to Mr. N. Upadhyay, learned State Counsel for his necessary follow up action.
18. List after one month for furnishing reports by the Superintendent of Police (B), Goalpara and the Deputy Commissioner, Goalpara.

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