Allowed

Sarala Das v. Union of India and 5 Ors.

Gauhati HC26 Apr 2022WP(C)/3849/2018

Case brief

AI extract

What is this about?

The Gauhati High Court set aside an order declaring the petitioner a foreigner. The Court found the Tribunal failed to appreciate evidence properly and unjustifiably rejected similar oral testimony, remanding the case for a fresh opinion.

What did the court decide?

Order dated 15.02.2017 set aside; matter remanded to Foreigners Tribunal for reappreciation of evidence including petitioner's documents and DW-2 testimony.

Sarala Das Vs Union of India and 5 Ors. — Constitutional and Fundamental Rights | Gauhati HC (2022)

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Page No.# 1/4

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GAHC010123082018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/3849/2018

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SARALA DAS

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W/O. NAGENDRA DAS, D/O. LT. RAJENDRA CHANDRA DAS, VILL. RONGPUR, PART-IV, P.O. HARINITILLA, P.S. UDHARBAND, SILCHAR, DIST. CACHAR, ASSAM.

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VERSUS

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UNION OF INDIA AND 5 ORS. REP. BY MINISTRY OF HOME AFFAIRS, NEW DELHI

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2:STATE OF ASSAM

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REP. BY THE MINISTRY OF HOME DISPUR GHY.

3:DY. COMMISSIONER

CACHAR

4:PRESIDING OFFICER

FOREIGNERS TRIBUNAL 3RD SILCHAR CACHAR ASSAM

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5:SUPDT. OF POLICE (B)

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SILCHAR CACHAR

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Page No.# 2/4

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6:OFFICER IN CHARGE UDHARBOND POLICE STATION SILCHAR DIST. CACHAR ASSA

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Advocate for the Petitioner : MR B KAUSHIK

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Advocate for the Respondent : ASSTT.S.G.I.

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BEFORE

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HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MR. JUSTICE NANI TAGIA

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ORDER

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26.04.2022

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[ N. Kotiswar Singh, J. ]

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Heard Mr. K. Biswakarma, learned counsel for the petitioner. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K. Dev Choudhury, learned Asstt. Solicitor General of India, for respondent No.1; Mr. A. Kalita, learned Special Counsel, FT, appearing for respondent Nos.2, 4, 5 and 6 and Ms. K. Phukan, learned Junior Government Advocate, Assam, appearing for respondent No.3.

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2. In this petition the petitioner has challenged the impugned order dated 15.02.2017 passed by the Foreigners' Tribunal 3^rd , Silchar, Cachar, Assam, in F.T.(D) Case No.95/2015, by which the petitioner was declared to be a foreigner, who had entered India (Assam) on or after 25.03.1971 from the specified territory.

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3. Learned counsel for the petitioner submits that though the petitioner had adduced a

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number of documents, the same had not been properly appreciated and as such, the

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Page No.# 3/4

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conclusion arrived by the learned Tribunal cannot be said to be based on proper application of mind and as such, the said opinion cannot stand the scrutiny of law.

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4. Learned special counsel, FT, also acknowledges that if the learned Tribunal had not properly appreciated the documents so exhibited and also not given reasons for not accepting the evidence, such an opinion runs the risk of being interfered with.

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5. We have examined the original records. We have also noted that the appreciation of evidence by the learned Tribunal was not proper. It is observed by us that the documents were not considered by the Tribunal as these were considered doubtful and not trustworthy by the Tribunal without assigning any reason why these are held doubtful and trustworthy. Unless proper and adequate reasons are given not to trust any document, it will not be proper to reject such documents as doubtful and not trustworthy.

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6. It has been submitted by the learned counsel for the petitioner that the petitioner had examined her paternal uncle as DW-2 but the said evidence was ignored by the learned Tribunal only on the ground that the evidence is similar to the testimony of the petitioner. The learned Tribunal while ignoring the oral testimony of the DW-2 had made the following observation:-

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“The D.W.2's evidence is just same leaping of the O.P.”

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We fail to understand as to the meaning of such a conclusion. Even if the evidence of DW-2 is similar to that of the petitioner, it cannot be a ground to ignore the same. Rather it will be deemed to be corroborated of the evidence of another witness, which would strengthen the case of the petitioner and not weaken the case.

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Page No.# 4/4

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7. Be that as it may, since we are remanding the matter, the learned Tribunal will reappreciate the evidence on record. We also make it clear that the Tribunal cannot reject the evidence of DW-2 on the ground that it is similar to what is deposed by the petitioner. The Tribunal has to take into consideration the evidence of the DW-2 even if it is similar to the one deposed by the O.P.

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8. For the reasons discussed above, we are remanding the matter to the learned Foreigners' Tribunal 3^rd , Silchar, Cachar for re-appreciating the evidences on record in accordance with law and pass a fresh opinion as regards the citizenship of the petitioner. All the evidences adduced by the petitioner, both oral and documentary must be considered as a whole to arrive at a decision.

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9. Accordingly, the present petition is allowed by setting aside the impugned order dated 15.02.2017 passed by the Foreigners' Tribunal 3^rd , Silchar, Cachar, Assam, in F.T.(D) Case No.95/2015. Consequently, the petitioner will appear before the learned Tribunal on 10.06.2022, whereupon the Tribunal after hearing the petitioner again will pass a fresh opinion.

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Sd/- Nani Tagia Sd/- N. Kotiswar Singh JUDGE JUDGE

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Comparing Assistant

Sarala Das v. Union of India and 5 Ors.

Case brief

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Sarala Das v. Union of India and 5 Ors.

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