WP(C) 3369/2010 BEFORE HON’BLE MR. JUSTICE B K SHARMA The two petitioners are the husband and wife. They have invoked the writ jurisdi ction of this Court making a grievance against the judgment and order dated 09.0 4.2010 passed by the Foreigner’s Tribunal, Nagaon in FT Case No.109/2007 (State Vs. Musstt. Asia Begum) and FT Case No.110/2007 (State Vs. Md. Abdul Aziz) by wh ich, they have been declared to be ’Foreigners (Bangladeshi Nationals entering i nto Assam after 25th March, 1971) making them liable for deportation to Banglade sh. [2] According to the petitioners, they are Indian citizens being the permanent resident of Ward No.12, Hedayet Nagar, Nagaon Town in the district of Nagaon. However, on the basis of the report furnished by the competent authorit y the aforesaid two FT cases were registered against them. Along with the said 2 cases, 2 other cases vide FT Case Nos.2127/2007 and 1111/2007 were also registe red against Ambia Khatun and Abdul Hasim respectively. The petitioner No.2 claim s that Abdul Hasim is his own brother and Ambia Khatun is the wife of the said b rother. [3] According to the petitioners, on receipt of the reference from t he competent authority, the Foreigners’ Tribunal issued Notice to each one of th em but in the Notice addressed to the petitioner No.2 his father was indicated a s Md. Abdul Ali although, petitioner No.2 is the son of Md. Abdul Roshid. On the other hand, in the notice that was issued to Abdul Hashim i.e. brother of petit ioner No.2, his father was indicated as Md. Abdul Roshid. [4] In the proceeding before the Tribunal all the suspected foreigne rs submitted their joint written statement interalia contending that the Police has referred false case against the petitioners and that they are all citizens o f India by birth. It was contended that the name of the father of the petitioner No.2 had appeared in the National Register of Citizens. The petitioners also pl aced reliance on the documents of the years 1965, 1968 and 1971 including the vo ter list. In Para-6 of the writ petition it has been stated that the petitioner had signed the written statement as Abdul Aziz as per instruction of his engaged lawyer but he normally signs as Abdul Azit and thus, he is known both as Abdul Azit and Abdul Aziz. [5] In Para-7 of the writ petition, the petitioners have stated that although, they had instructed the engaged counsel to file evidence-on-affidavit but he did not do so stating that the same was not necessary. However, common o ral evidence of the petitioners’ witnesses was taken in all the 4 FT cases. [6] In Para-8 the allegation made against the engaged counsel is tha t he did not conduct the cases of the petitioners properly by not submitting wri tten evidence-on-affidavit and that he also misguided the petitioner No.2 to sig n as Abdul Aziz instead of Abdul Azit. [7] In the proceeding before the Tribunal 8 witnesses were examined on behalf of all the 4 suspected foreigners including the present 2 petitioners. The State also examined 2 witnesses. The Tribunal on the basis of the materials on record has passed the impugned judgment and order dated 09.04.2010 declaring the 2 petitioners to be Foreign Nationals while the other 2 suspected foreign ers have declared to be Indian Citizens . [8] The petitioners upon a reference to the evidence on record have contended that the finding recorded by the Tribunal is perverse and contrary to the evidence on record. Mr. A R Sikdar, learned counsel for the petitioners subm itted that the evidence adduced before the Tribunal will go to show that the pet itioners are Indian citizens and not foreigners as has been held by the Tribunal . According to him, the minor discrepancies in the names of the parents of the p etitioners cannot lead to the interference that the petitioners are foreigners a nd living in India unauthorisedly. [9] Ms R Chakraborty, learned Additional Sr. Government Advocate, As sam, on the other hand, submitted that the Tribunal having recorded its finding on the basis of materials on record the Writ Court will not seat an appeal over the finding unless it is shown to be perverse and/or based on no evidence at all . [10] I have considered the rival submissions, made by the learned cou nsel for the parties and the entire materials on record including the records of the Foreigners’ Tribunal. The particular reference got initiated against the pe titioners on the basis of the suspicion and the subsequent enquiry conducted by the authorities. The records have revealed that at the time of enquiry statement s of the petitioners and other witnesses were recorded. On being asked, they c ould not produce any document to show that they are Indian citizens by birth. Ac cordingly, report was furnished recording that the petitioners are suspected for eigners. Thereafter, the matter was referred to the Foreigners’ Tribunal, which in turn issued Notices to the petitioners. [11] Although, separate proceedings were initiated against the petiti oners and the two others, but they filed a joint written statement and the 4 ref erences were tried together. In the written statement filed, the plea taken was that the name of the petitioner No.2’s father (Abdul Roshid Ali) appears in the NIC of 1951 and that his said father was issued with a summon in connection with a criminal case in the year 1968. Further statement made in the written stateme nt was that the name of his father appeared in the voter list of 1971 and that t he petitioners have also exercised their right of franchise. As regards the peti tioner No.1, it was stated in the written statement that she is the wife of peti tioner No.2 and that there are sufficient proof of she being an Indian citizen. [12] It is on the above basis the petitioners had contended that they are Indian citizens by birth. The documents that were produced are the Exhibits -1 to 9. [13] Exhibit-1 is the purported copy of the NRC of 1951 containing th e name of one Ah. Roshid Ali, whom the petitioner No.2 claims to be his father. Exhibit-2 is a summons to witness and is dated 02.08.1968 and the person named i n the summons is Abdul Roshid, whom the petitioner No.2 claims to be his father. Exhibit-3 being illegible does not through any light. Exhibit-4 is a certified copy of the voter list of 1971(extract only) showing the name of Ah. Rashid Mir and Khatebanu as wife of Ah. Roshid Mir. According to the petitioner No.2, they are his parents. The Exhibit No.5 is a certificate dated 24.03.2008, issued by o ne Makbul Hussain, Ward Commissioner, Nagaon, certifying that Abdul Hashem is th e son of Abdul Roshid and is a resident of the particular locality and that the name of Abdul Roshid was included in the voter list of 2005. Exhibit-6 is anothe r certificate to the same effect but in the name of the petitioner No.2. Exhibit -7 is another certified copy of voter list of 1965 (extract only) showing the na me of one Yasin Ali, son of Omed Ali. Exhibit-8 is a birth certificate dated 05. 01.2005 certifying date of birth of Md. Abdul Azit on 02.05.1957. Thus, the cert ificate was issued nearly 50 years after the petitioner No.2 was born. Exhibit-9 is another certificate on a plain paper certifying Ambia Khatun as the daughter of Ah Kadir and her marriage with Ah. Hasen and that the name of her grandfathe r had appeared in the 1970 voter list. [14] Above are the documents on the basis of which, the petitioners c ontended before the Tribunal that they are Indian citizens by birth. Although th e petitioner No.2 has declared his age as 54 years in the affidavit filed in sup port of the writ petition, but he did not submit any document before the Tribuna l to show that he has been a voter after attaining the age of voting right. The most vital document is the NRC of 1951 in which, the name of the father of the p etitioner No.2 appears. However, there is nothing to show that the said person i s the father of the petitioner No.2. [15] Even if the petitioners are in possession of any voter list of p ost 25th March, 1971, but unless the linkage is established to pre 25.03.1971 pe riod, same by itself will not establish their Indian citizenship and that too by birth. [16] The petitioners merely by producing certain documents both certi fied and photocopies cannot establish their Indian citizenship. Mere filing or e xhibiting of a document in Court does not amount to proof of its contents. Admis sion of a document in Court may amount to admission of its contents but not thei r truth. Documents not having been produced and marked as required under the Evi dence Act, same cannot be relied upon. [17] It was the duty of the petitioners to have proved the documents (Exhibit-1 to 9) in accordance with law. The documentary evidence was required t o be proved by the petitioners in accordance with the provisions of the Evidence Act, which admittedly, they did not. As has been held by the Apex Court in LIC of India Vs. Ram Pal Sing Bisen reported in 2010 (4) SCC 491, under the law of e vidence, it is necessary that contents of documents are required to be proved ei ther by primary or by secondary evidence. At the most, admission of documents ma y amount to admission of contents but not its truth. [18] Documents having not been produced and marked as required under the Evidence Act, same cannot be relied upon by the Court. Contents of the docum ent cannot be proved by mere filing in a Court. Detail procedure has been laid d own in Section 61 to 65, 67 and 73 of the Evidence Act, 1872 towards proof of th e contents of a document. Mere filing or exhibiting of a document in Court does not amount to proof of its contents. In the said decision it has further been he ld that there is also requirement of serving Notice of admission or denial of do cuments as contemplated under Order 12 Rule 2 of the CPC. [19] Be that as it may, since the petitioner No.2 have miserably fail ed to establish that Abdul Roshid is his father, merely by showing some document s containing the name of Abdul Roshid will not establish that he is the son of s aid person and that he was born and brought up in Assam, India. Going by the nat ure of unabated infiltration into Assam, it is not unlikely that a part of the f amily remains in Bangladesh while part of it migrates to Assam. In such a case, the family members remaining in Bangladesh cannot come and say that they are Ind ian citizens. [20] The blame on the advocate by the petitioners is not at all belie vable. They all along participated in the proceeding before the Tribunal and at no point of time expressed any reservation on the conduct of their engaged couns el. They did not adduce any evidence-on-affidavit. Their written statement befor e the Tribunal is also not supported by any verification and/or affidavit. [21] As against the claim of the petitioner No.2 that his father is A bdul Roshid, the NRC of 1951 (Exhibit-1) names Ah. Roshidali. Again in Exhibit-4 voter list of 1971 the name is of Ah Roshid Mir and not Abdul Roshid. [22] As recorded by the Tribunal in its impugned judgment and order, the CW-1 i.e. the Sub-inspector of Police (Border), who had carried out the inve stigation as per the order of Superintendent of Police (Border), Nagaon, categor ically stated in his deposition that he had recorded the statement of the petiti oner No.2 and he in his statement disclosed his father to be Abdul Ali (Exhibit- E). In the Notice from the Tribunal also, the name of the petitioner number 2’s father was indicated as Abdul Ali and the petitioner dully received the same wit hout any reservation. [23] The Tribunal has discussed the evidence-on-record towards not be lieving the story of the petitioners that Abdul Roshid is the father of the peti tioner No.2. OPW No.3 Md. Ali in his deposition stated that he is the maternal u ncle of Abdul Aziz i.e. the petitioner No.2 and that the name of the mother of the petitioner No.2 is Fatema Khatoon. On the other hand, Abdul Aziz i.e. petiti oner No.2 in his deposition specifically stated that his mother is Khateban Ness a. Exhibit-4 is the certified copy (Extract only) of the voter list of 1971 show ing the name of Khate Banu, whom the petitioner claims to be his mother. When su ch variations are there, even in the names of nearer ones, the Tribunal has righ tly disbelieved the story made out by the petitioners. As regards the Exhibit-8 birth certificate, the Tribunal has rightly disbelieved the same, as the same wa s issued nearly 50 years after the petitioner No.2 was born. It will be pertinen t to mention here that the petitioner No.1 involved in FT Case No.109/2007 did n ot examine herself. [24] OPW No.3 Abdul Sattar, claiming himself to be the brother of the petitioner No.1 stated in his deposition that the name of his father is Yasin A li son of Akram Ali. A certified copy of the voter list of 1965 was exhibited as Exhibit-7. This document contains the name of Yasin Ali son of Umed Ali. Thus, there is variation in the name of the father of Yasin Ali. As discussed in the impugned judgment of the Tribunal, Yasin Ali had sworn an affidavit on 02.04.198 8 to the effect that the name of his father has wrongly recorded in the Electora l Roll of 1965. Thus, on the basis of such nature of evidence, it was sought to be established that the father of Yasin Ali and for that matter of the petitione r No.1 is Akram Ali and not Umed Ali. The Tribunal has rightly observed that su ch an affidavit cannot substitute the name of Akram Ali in place of Umed Ali, wh ich name appears in the voter list of 1965. The Tribunal has rightly recorded it s finding that the petitioner No.1 has miserably failed to establish that she is the daughter of Yasin Ali, son of Umed Ali and thus Exhibit-7 voter list of 196 5 cannot establish her Indian citizenship. [25] Mr. A R Sikdar, learned counsel for the petitioners strenuously argued that since the other two suspected foreigners, one of whom is the brother of petitioner No.2 has been held to be Indian citizen by the same very impugned judgment and order, the petitioners are also required to be declared Indian cit izens, I am afraid, such an argument is totally misplaced. Firstly, if the Tribu nal has committed anything wrong in declaring the other two suspected foreigners to be Indian citizens, such a wrong committed by the Tribunal cannot give any b enefit to the petitioners and secondly, going by the magnitude and intensity of foreigners problem in Assam things cannot be taken lightly in a situation which, part of the family remains in Bangladesh while the other part migrates to Assam . This aspect of the matter has been discussed above. [26] There is yet another aspect of the matter. The Tribunal is the f act-finding authority and it has passed the impugned judgment and order on the b asis of the materials and evidence available on record. It is not for the Writ C ourt to re-appreciate the said findings so as to return another independent find ing. It also cannot seat on appeal over the assessment of evidence and findings recorded by the Tribunal. It is not a case of perverse finding and or a finding arrived at on the basis of no evidence at all. [27] For all the aforesaid reasons, I do not find any merit in the wr it petition and accordingly, it is dismissed. Consequently, the Superintendent o f Police, (B), Nagaon shall immediately take the petitioners into custody and de tain them in the detention camp till such time they are deported/pushed back to Bangladesh. The Deputy Commissioner, Nagaon shall also ensure the deletion of th eir names from the voter list, if any. [28] Let copies of this judgment and order be sent to Superintendent of Police, (B) and Deputy Commissioner, Nagaon, Assam and so also to the Union o f India in the Ministry of Home Affairs. In addition, another copy shall also be furnished to Ms. R Chakraborty, learned State Counsel for her necessary follow up action. [29] Let the matter be listed immediately after vacation for furnishi ng compliance report by the aforesaid authorities i.e. Superintendent of Police, (B), and Deputy Commissioner, Nagaon, Assam. Registry shall send down the recor ds to the Tribunal alongwith a copy of their judgment and order.