Full Judgment Text
REPORTABLE
2025 INSC 730
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2686 OF 2025
(Arising out of SLP (Crl.) No.5598/2019)
ROFIQUL HOQUE …APPELLANT(S)
VERSUS
THE UNION OF INDIA & ORS. …RESPONDENT(S)
J U D G M E N T
MANOJ MISRA, J.
1. Leave granted.
1
2. This appeal arises from proceedings under the
2
vide
Foreigners Act, 1946 , whereunder, order dated
04.03.2017, the appellant was declared foreigner, who
entered India illegally after 25.03.1971, by the Foreigners
3
Tribunal , Jorhat, Assam. The aforesaid order of the
Signature Not Verified
1
1 Case No.FT/SVR/62/14
2
2 1946 Act
3
3 Tribunal
Digitally signed by
RAJNI MUKHI
Date: 2025.05.19
17:19:46 IST
Reason:
SLP (Crl) No.5598/2019 Page 1 of 20
4
Tribunal was challenged before the Guwahati High Court
5
under Article 226 of the Constitution of India through
W.P.(C) No.2207/2017, which was dismissed vide
impugned order dated 20.11.2017.
3. Aggrieved by the declaration that appellant is a
foreigner and dismissal of the writ petition challenging
such declaration, this appeal has been filed.
Facts
4. Before adverting to the issues that fall for our
consideration in this appeal it would be apposite to
briefly refer to the relevant facts. They are as follows:
(i) Based on a preliminary enquiry, the
Superintendent of Police (Border), Sivasagar
made a reference to the Tribunal, inter alia,
alleging that the appellant is a foreigner
illegally residing in Assam, India.
(ii) On the aforesaid reference, notice was issued
by the Tribunal calling upon the appellant to
show cause as to why he be not declared a
foreigner.
4
4 High Court
5
5 The Constitution
SLP (Crl) No.5598/2019 Page 2 of 20
(iii)
The appellant contested the notice by filing a
written statement on 15.06.2016, inter alia ,
stating (a) that he is son of Md. Majut Ali, a
resident of Daobhangi village under Gauripur
police station in the district of Dhubri; (b)
Joynal Abdin Seikh was his grandfather and
Moriyom Bibi was his grandmother; (c) his own
mother’s name is Sopia Bibi (Begum); (d) his
grandfather’s name was enlisted in the voters
list of 1966 whereas his grandmother’s name
was enlisted in the voters list of 1970; (e) he
was born in the year 1996 and as such he is a
citizen of India.
(iv) To support his case, the appellant submitted
school certificate (Ext-1); extract of voters list of
1966 in respect of Gauripur Assembly
Constituency (Ext-2); extract of voters list of
1970 in respect of Gauripur Assembly
Constituency (Ext-3); extract of voters list of
1993 in respect of Gauripur Assembly
SLP (Crl) No.5598/2019 Page 3 of 20
Constituency (Ext-4); extract of voters list of
2010 in respect of Gauripur Assembly
Constituency (Ext-5); and extract of voters list
of 2016 in respect of Gauripur Assembly
Constituency (Ext-6).
(v) Ext-1 was a duplicate school leaving certificate
dated 03.05.2014 issued by headmaster of
number 1236 Khagrabari LP School certifying
that (a) Rofiqul Hoque is son of Majut Ali
(father) and Sopia Bibi (mother) of Daobhangi
village under Gauripur Police Station; (b) his
date of birth is 20.07.1996; and (c) he left the
school on 31.12.2004.
(vi) The Tribunal held appellant to be a foreigner.
While holding so the Tribunal, inter alia ,
observed that place of residence of Joynal
Abdin as reflected in the voter lists was at
variance with what was claimed by the
appellant. For example, in the voter list of 1993
Joynal Abdin was shown as a resident of
SLP (Crl) No.5598/2019 Page 4 of 20
6
Kekurchar village whereas the appellant was
resident of village Daobhangi. The Tribunal
noted that appellant nowhere stated that his
grandfather shifted from one village to the
other. The Tribunal thus opined that it is
difficult to hold that Joynal Abdin Seikh son of
Rahim Munshi of Daobhangi village and Joynal
Abdin Seikh son of Rahim Seikh of Kekurchar
village were one and the same person.
High Court’s Analysis of the Evidence
5. In the writ petition preferred against the Tribunal’s
order, the High Court considered the entire evidence
produced by the appellant. It highlighted defects in the
evidence led by the appellant, which are enumerated
below:
(i) The school leaving certificate (Ext-1) was an
unreliable document, inter alia , for the
following reasons: a) it was duplicate, therefore
not acceptable without proof of loss of original;
b) there was no logical reason for its issuance
6
6 Referred to as ‘Bhekarchar’ in the voter list of 1993.
SLP (Crl) No.5598/2019 Page 5 of 20
on 03.05.2014, after 10 years of appellant
having left the school; and c) the headmaster of
the school was not examined to prove its
contents.
(ii)
The voter list of 1966 (Ext-2) discloses only the
name of Joynal Abdin Seikh son of Rahim
Munshi which, in isolation, cannot be of much
help to the appellant.
(iii)
The voter list of 1970 (Ext-3), though includes
names of Joynal Abdin Seikh son of Rahim
Munshi and Moriyom Bibi wife of Joynal,
discloses age of Moriyom Bibi as 27 years,
which is surprising because if she had been of
that age her name would have been found in
the voter list of 1966.
(iv) In the voter list of 1993 (Ext-4), though names
of Maziber Ali and Majut Ali are shown as sons
of Joynal Abdin, age of Majut Ali is shown 30
years, which is surprising for it to have
appeared for the first time at that age.
SLP (Crl) No.5598/2019 Page 6 of 20
(v)
In the voter list of 1966 Joynal Abdin was
shown aged 38 years. If he had been the same
person in the voter list of 1993, his age ought
to have been 65 years whereas in the 1993
voter list, his age was shown as 70 years. The
High Court therefore expressed doubt as to
whether Joynal Abdin Seikh as mentioned in
1966 voter list is one and the same person as
mentioned in 1993 voter list.
(vi) Additionally, the High Court noticed that as per
the affidavit of the appellant, Joynal Abdin
Seikh was a resident of Daobhangi village
whereas in the voter list of 1993, Joynal Abdin
was shown as a resident of Kekurchar village,
which is altogether different from the village of
which the appellant claims to be a resident.
Further, the High Court noticed that in the
1993 voters list, the name of the mother of the
appellant, namely, Sopia Bibi, is conspicuous
by its absence.
SLP (Crl) No.5598/2019 Page 7 of 20
(vii)
As regards the voters list of 2010, the High
Court observed that here Majut Ali’s age is
shown as 45 years whereas in 1993 list it was
30 years therefore, in the 2010 voters list, it
ought to have been 47 years. Besides above,
there was a noticeable change in respect of the
place of residence because in 1993 list, the
village of domicile is shown as Kekurchar
whereas in 2010 voter list it is Daobhangi.
(viii)
In respect of the voter list of 2016, though
names of Majut Ali and Sopia Bibi appeared,
there appeared overwriting in the age of Sopia
Bibi where 45 was written over 30. The High
Court, therefore, expressed doubt on the
genuineness of the document itself.
(ix)
Based on the above analysis of the evidence,
the High Court observed that “net result of the
above discussion is that petitioner had failed to
discharge his burden under section 9 of the
Foreigners Act, 1946 to prove that he was not a
SLP (Crl) No.5598/2019 Page 8 of 20
foreigner but a citizen of India ”. The High Court
further observed: “the narrative presented by
the petitioner suffered from multiple material
contradictions and omissions rendering the
same not only suspicious but highly
improbable .” Consequently, the High Court
declined to interfere with the order passed by
the Tribunal dated 04.03.2017.
6. Pursuant to the order of the High Court, the appellant
was detained. After nearly 2 years of the High Court’s
order, the appellant filed SLP (Crl.) No.5598/2019 along
with an application seeking permission to file additional
documents.
The pleas taken before this Court are (a) that after the
7.
order of the High Court, the appellant had a permanent
account number in his favour, which was issued by the
Income Tax Department on 26.12.2017; and (b) that his
name appeared at serial no.7 in the draft NRC published
by the competent authority on 30.07.2018, consequently,
he could no longer be considered a foreigner.
SLP (Crl) No.5598/2019 Page 9 of 20
8. On 03.07.2019, this Court condoned the delay and
issued notices to the respondents. Thereafter, on
26.07.2019, in view of appellant’s name figuring in the
draft NRC published on 30.07.2018 (wrongly transcribed
as 31.07.2018 in the order), this Court directed release of
the appellant from the Detention Centre, subject to
certain conditions.
Submissions on behalf of Appellant
9. The contention of the learned counsel for the appellant
is that once the name of the appellant stands included in
the draft NRC, the order of the Tribunal, declaring him a
foreigner, and of the High Court, affirming the order of
the Tribunal, cannot be sustained. Moreover, the
Tribunal and the High Court adopted a pedantic
approach in holding that the appellant had failed to
discharge the burden. Otherwise also, minor
discrepancies in the voter list are to be ignored as these
entries are not within the control of the voter. As regards
change of place of residence, it was argued, a citizen of
the country is free to travel from one place to the other
SLP (Crl) No.5598/2019 Page 10 of 20
and therefore, on mere change of domicile from one
village to the other the nationality cannot be doubted.
Submissions on behalf of respondents
10. Per contra, on behalf of the respondents, it was
submitted that a declaration made by the Tribunal that a
person is a foreigner does not get effaced or annulled by
mere inclusion of that person’s name in the draft NRC
because the proceedings of the Tribunal are quasi-
judicial in nature and once a declaration is made by it,
the same can be set aside only by a superior court and
not by the Registering Authority. It was also argued on
behalf of the respondents that the discrepancies in the
documents furnished by the appellant by way of proof of
his citizenship were not only in respect of residence of the
persons through whom the appellant claimed to be a
citizen but also in respect of the school certificate, which
was found doubtful and bogus. Therefore, as by Section 9
of the 1946 Act burden is on the proceedee, the finding of
the Tribunal cannot be faulted.
SLP (Crl) No.5598/2019 Page 11 of 20
11. We have considered the rival submissions and
have perused the materials on record.
Issues
12. Two issues arise for our consideration in this
appeal, namely, (a) whether the findings returned by the
Tribunal and the High Court suffer from any legal
infirmity as to warrant an interference in exercise of this
Court’s power under Article 136 of the Constitution of
India? (b) whether on inclusion of the name of the
appellant in the draft NRC published by the competent
authority in the year 2018, the declaration made by the
Tribunal, as affirmed by the High Court, would be
rendered invalid?
Discussion/ Analysis
13. Issue (a) - As regards the claim of the appellant
that the Tribunal and the High Court adopted a pedantic
approach in discarding the documents for minor
discrepancies and, therefore, their finding stands vitiated,
it be noticed that Section 9 of the 1946 Act places the
burden of proof on the proceedee to prove that he is not a
SLP (Crl) No.5598/2019 Page 12 of 20
7
foreigner . Consequently, the burden was on the
appellant to establish by cogent documents or other
evidence that either he himself had entered the territory
of Assam prior to 25.03.1971 or his ancestors had
entered the territory prior to the said date.
14. In that regard, the appellant traced his ancestry
from Joynal Abdin Seikh by claiming him to be his
grandfather. Voter lists were produced to show that
Joynal’s name was there prior to the cut-off date and the
subsequent voter lists reflected that appellant was part of
that family.
15. The Tribunal as well as the High Court have
considered these documents and have found that those
earlier voter lists relate to a person located in some other
village than the one of which the appellant claimed to be
a resident. In such circumstances, the appellant ought to
have stated in his affidavit, or demonstrated by some
documentary evidence, that his ancestors had migrated
from that village to the other village where the appellant
was reported to be residing, but, according to the
7
7 Sarbananda Sonowal v. Union of India and another, (2005) 5 SCC 665
SLP (Crl) No.5598/2019 Page 13 of 20
Tribunal, there was no such claim by the appellant in his
affidavit. Therefore, the Tribunal discarded the probative
value of those voter list entries. Interestingly, the school
leaving certificate on which heavy reliance was placed by
the appellant was also doubted as there appeared no
reason for it to have been obtained 10 years after passing
from the institution. Moreover, the headmaster of the
school was not called for to prove the authenticity of the
certificate of which duplicate was produced.
16. For the foregoing reasons, if the Tribunal and the
High Court held that the appellant could not discharge
his burden of proving that he is not a foreigner, the view
taken by them cannot be held perverse, or manifestly
erroneous, or unreasonable, as to warrant interference
under Article 136 of the Constitution of India.
17. That apart, it is not the case of the appellant that
any material/ admissible evidence was ignored or there
was misreading of any of the documents produced by the
appellant. We are, therefore, of the view that the findings
SLP (Crl) No.5598/2019 Page 14 of 20
returned by the Tribunal and the High Court do not
suffer from any legal infirmity.
Issue (a) is decided in the above terms.
18.
19. Issue (b) - As regards the effect of inclusion of
the name of the appellant in the draft NRC, which was
published by the competent authority in 2018, it would
be apposite to notice Rule 4 A of the Citizenship
(Registration of Citizens and Issue of National Identity
8
Cards) Rules, 2003 as inserted by GSR No.803 (E), dated
09.11.2009, with effect from 09.11.2009. Rule 4 A reads
thus:
“ 4A. Special provisions as to National
Register of Indian Citizens in State of Assam
– (1) Nothing in rule 4 shall, on and after the
commencement of the Citizenship (Registration
of Citizens and Issue of National Identity Cards)
Amendment Rules, 2009, apply to the State of
Assam.
(2) The Central Government shall, for the
purpose, of the National Register of Indian
Citizens in the State of Assam, cause to carry
out throughout the State of Assam for
preparation of the National Register of Indian
Citizens in the State of Assam by inviting
applications from all the residents, for collection
of specified particulars relating to each family
and individual, residing in a local area in the
State including the citizenship status based on
the National Register of Citizens 1951 and the
8
8 2003 Rules
SLP (Crl) No.5598/2019 Page 15 of 20
th
[electoral rolls upto the midnight of the 24 day
of March, 1971].
(3) The Registrar General of Citizens
Registration shall notify the period and
duration of the enumeration in the Official
Gazette.
(4) The manner of preparation of the
National Register of Indian Citizens in the
State of Assam shall be such as specified in
the Schedule appended to these rules.”
(Emphasis supplied)
Sub-rule (4) of Rule 4 A provides that the manner
20.
of preparation of the National Register of Indian Citizens
in the State of Assam shall be such as specified in the
Schedule appended to these rules.
21. The Schedule attached to the 2003 Rules is titled
“Special Provision As To Manner Of Preparation Of
National Register Of Indian Citizen In State Of Assam”.
22. Paragraph 3 of the aforesaid Schedule provides as
under:
“3. Scrutiny of applications – (1) The scrutiny
of applications received under sub-paragraph
(3) of paragraph 2 shall be made by comparing
the information stated in the application form
with the official records and the persons, of
whom the information is found in order, shall
be eligible for inclusion of their names in the
consolidated list.
(2) The names of persons who have been
declared as illegal migrants or foreigners by
the competent authority shall not be
included in the consolidated list:
SLP (Crl) No.5598/2019 Page 16 of 20
Provided that the names of persons who
came in the State of Assam after 1966 and
th
before the 25 March, 1971 and registered
themselves with the Foreigner Registration
Regional Officer and who have not been
declared as illegal migrants or foreigners by
the competent authority shall be eligible to
be included in the consolidated list .
(3) The names of persons who are originally
inhabitants of the State of Assam and their
children and descendants, who are Citizens of
India, shall be included in the consolidated list
if the citizenship of such persons is ascertained
beyond reasonable doubt and to the satisfaction
of the registering authority;
(4) The Local Registrar of Citizens Registration
may, in case of any doubt in respect of parental
linkage or any particular mentioned in the
application received under sub – paragraph (3)
of paragraph 2, refer the matter to the District
Magistrate for investigation and his decision
and Local Registrar of Citizens Registration
shall also inform the same to the individual or
the family;
(5) The Local Registrar of Citizens Registration
may, in respect of a person who- (a) was
residing in a place other than the State of
th
Assam up to the midnight of the 24 day of
March, 1971; or
(b)has shifted from one district to another
within the State of Assam up to the midnight of
th
the 24 day of March, 1971,
verify information relating to such person
through inter-state correspondence, or, as the
case may be, through inter-district
correspondence.”
(Emphasis supplied)
23. Sub-para (2) to paragraph 3 makes it clear that
the names of persons who have been declared as illegal
migrants or foreigners by the competent authority shall
not be included in the consolidated list.
SLP (Crl) No.5598/2019 Page 17 of 20
24. Admittedly, the draft NRC was published in 2018
and by that time, the appellant had already been declared
a foreigner by the Tribunal.
25. Interpreting the consequence of such declaration,
a three-Judge Bench of this Court in
Abdul Kuddus vs.
9
, held:
Union of India and others
11. It is obvious to us that the persons
“
covered by the sub-para (2) to para 3 of the
Schedule i.e. persons who have been declared
to be illegal migrants or foreigners by the
competent authority fall in a separate and
distinct class and in such cases, no enquiry or
investigation is required to be conducted in
terms of sub-para (4). Such persons cannot,
in terms of the specific language used in sub-
para (2) to para 3 of the schedule, be included
in the National Register of Citizens. The
reason as is evident is that their citizenship
status has already been determined by the
competent authority. A person once declared
an illegal migrant or a foreigner cannot claim
or put forth the claim to the citizenship of
India on the basis that he/she has been
residing in the state of Assam”.
In (supra), this Court also
26. Abdul Kuddus
expounded the expression “competent authority”, as used
in sub-para (2) of para 3 of the Schedule to the 2003
Rules, in the following terms:
9
9 (2019) 6 SCC 604
SLP (Crl) No.5598/2019 Page 18 of 20
“ 22. ... The Foreigners Act and the Citizenship
Act including the Rules framed under the two
Acts have to be read harmoniously as both the
Acts are inter-related and sister enactments.
Pertinently, the rules framed under the
Citizenship Act are subordinate legislation. The
expression competent authority used in sub-
para (2) to para 3 of the Schedule to the 2003
rules would obviously and without a doubt has
reference to the duly constituted authority
under the Foreigners Act. …
Thus, the competent authority referred to in
sub-para (2) to para 3 of the Schedule would
be, without a doubt, the Tribunal
constituted under the Foreigners Act i.e.
1964 Order ”.
(Emphasis supplied)
27. In view of the decision of this Court in Abdul
Kuddus (supra), firstly, consequent to the declaration by
the Tribunal that appellant is a foreigner, the name of the
appellant could not have been included in the draft NRC
and, secondly, even if it has been included, it would not
annul the declaration made by the Tribunal.
28. For the reasons detailed above, the inclusion of
the name of the appellant in the draft NRC would have no
bearing on the order passed by the Tribunal, affirmed by
the High Court, declaring the appellant a foreigner.
29. Issue (b) is decided in the above terms.
SLP (Crl) No.5598/2019 Page 19 of 20
30. In light of the discussion above, and our
conclusions on the issues referred to above, we are of the
view that there is no merit in this appeal. The same is,
accordingly, dismissed. The release order which was
passed at an interim stage stands discharged.
Consequently, the appellant shall be treated and dealt
with as a foreigner. Pending applications, if any, stand
disposed of.
.......................................... J
(Sanjay Karol)
............................................. J.
(Manoj Misra)
New Delhi;
May 19, 2025
SLP (Crl) No.5598/2019 Page 20 of 20
2025 INSC 730
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2686 OF 2025
(Arising out of SLP (Crl.) No.5598/2019)
ROFIQUL HOQUE …APPELLANT(S)
VERSUS
THE UNION OF INDIA & ORS. …RESPONDENT(S)
J U D G M E N T
MANOJ MISRA, J.
1. Leave granted.
1
2. This appeal arises from proceedings under the
2
vide
Foreigners Act, 1946 , whereunder, order dated
04.03.2017, the appellant was declared foreigner, who
entered India illegally after 25.03.1971, by the Foreigners
3
Tribunal , Jorhat, Assam. The aforesaid order of the
Signature Not Verified
1
1 Case No.FT/SVR/62/14
2
2 1946 Act
3
3 Tribunal
Digitally signed by
RAJNI MUKHI
Date: 2025.05.19
17:19:46 IST
Reason:
SLP (Crl) No.5598/2019 Page 1 of 20
4
Tribunal was challenged before the Guwahati High Court
5
under Article 226 of the Constitution of India through
W.P.(C) No.2207/2017, which was dismissed vide
impugned order dated 20.11.2017.
3. Aggrieved by the declaration that appellant is a
foreigner and dismissal of the writ petition challenging
such declaration, this appeal has been filed.
Facts
4. Before adverting to the issues that fall for our
consideration in this appeal it would be apposite to
briefly refer to the relevant facts. They are as follows:
(i) Based on a preliminary enquiry, the
Superintendent of Police (Border), Sivasagar
made a reference to the Tribunal, inter alia,
alleging that the appellant is a foreigner
illegally residing in Assam, India.
(ii) On the aforesaid reference, notice was issued
by the Tribunal calling upon the appellant to
show cause as to why he be not declared a
foreigner.
4
4 High Court
5
5 The Constitution
SLP (Crl) No.5598/2019 Page 2 of 20
(iii)
The appellant contested the notice by filing a
written statement on 15.06.2016, inter alia ,
stating (a) that he is son of Md. Majut Ali, a
resident of Daobhangi village under Gauripur
police station in the district of Dhubri; (b)
Joynal Abdin Seikh was his grandfather and
Moriyom Bibi was his grandmother; (c) his own
mother’s name is Sopia Bibi (Begum); (d) his
grandfather’s name was enlisted in the voters
list of 1966 whereas his grandmother’s name
was enlisted in the voters list of 1970; (e) he
was born in the year 1996 and as such he is a
citizen of India.
(iv) To support his case, the appellant submitted
school certificate (Ext-1); extract of voters list of
1966 in respect of Gauripur Assembly
Constituency (Ext-2); extract of voters list of
1970 in respect of Gauripur Assembly
Constituency (Ext-3); extract of voters list of
1993 in respect of Gauripur Assembly
SLP (Crl) No.5598/2019 Page 3 of 20
Constituency (Ext-4); extract of voters list of
2010 in respect of Gauripur Assembly
Constituency (Ext-5); and extract of voters list
of 2016 in respect of Gauripur Assembly
Constituency (Ext-6).
(v) Ext-1 was a duplicate school leaving certificate
dated 03.05.2014 issued by headmaster of
number 1236 Khagrabari LP School certifying
that (a) Rofiqul Hoque is son of Majut Ali
(father) and Sopia Bibi (mother) of Daobhangi
village under Gauripur Police Station; (b) his
date of birth is 20.07.1996; and (c) he left the
school on 31.12.2004.
(vi) The Tribunal held appellant to be a foreigner.
While holding so the Tribunal, inter alia ,
observed that place of residence of Joynal
Abdin as reflected in the voter lists was at
variance with what was claimed by the
appellant. For example, in the voter list of 1993
Joynal Abdin was shown as a resident of
SLP (Crl) No.5598/2019 Page 4 of 20
6
Kekurchar village whereas the appellant was
resident of village Daobhangi. The Tribunal
noted that appellant nowhere stated that his
grandfather shifted from one village to the
other. The Tribunal thus opined that it is
difficult to hold that Joynal Abdin Seikh son of
Rahim Munshi of Daobhangi village and Joynal
Abdin Seikh son of Rahim Seikh of Kekurchar
village were one and the same person.
High Court’s Analysis of the Evidence
5. In the writ petition preferred against the Tribunal’s
order, the High Court considered the entire evidence
produced by the appellant. It highlighted defects in the
evidence led by the appellant, which are enumerated
below:
(i) The school leaving certificate (Ext-1) was an
unreliable document, inter alia , for the
following reasons: a) it was duplicate, therefore
not acceptable without proof of loss of original;
b) there was no logical reason for its issuance
6
6 Referred to as ‘Bhekarchar’ in the voter list of 1993.
SLP (Crl) No.5598/2019 Page 5 of 20
on 03.05.2014, after 10 years of appellant
having left the school; and c) the headmaster of
the school was not examined to prove its
contents.
(ii)
The voter list of 1966 (Ext-2) discloses only the
name of Joynal Abdin Seikh son of Rahim
Munshi which, in isolation, cannot be of much
help to the appellant.
(iii)
The voter list of 1970 (Ext-3), though includes
names of Joynal Abdin Seikh son of Rahim
Munshi and Moriyom Bibi wife of Joynal,
discloses age of Moriyom Bibi as 27 years,
which is surprising because if she had been of
that age her name would have been found in
the voter list of 1966.
(iv) In the voter list of 1993 (Ext-4), though names
of Maziber Ali and Majut Ali are shown as sons
of Joynal Abdin, age of Majut Ali is shown 30
years, which is surprising for it to have
appeared for the first time at that age.
SLP (Crl) No.5598/2019 Page 6 of 20
(v)
In the voter list of 1966 Joynal Abdin was
shown aged 38 years. If he had been the same
person in the voter list of 1993, his age ought
to have been 65 years whereas in the 1993
voter list, his age was shown as 70 years. The
High Court therefore expressed doubt as to
whether Joynal Abdin Seikh as mentioned in
1966 voter list is one and the same person as
mentioned in 1993 voter list.
(vi) Additionally, the High Court noticed that as per
the affidavit of the appellant, Joynal Abdin
Seikh was a resident of Daobhangi village
whereas in the voter list of 1993, Joynal Abdin
was shown as a resident of Kekurchar village,
which is altogether different from the village of
which the appellant claims to be a resident.
Further, the High Court noticed that in the
1993 voters list, the name of the mother of the
appellant, namely, Sopia Bibi, is conspicuous
by its absence.
SLP (Crl) No.5598/2019 Page 7 of 20
(vii)
As regards the voters list of 2010, the High
Court observed that here Majut Ali’s age is
shown as 45 years whereas in 1993 list it was
30 years therefore, in the 2010 voters list, it
ought to have been 47 years. Besides above,
there was a noticeable change in respect of the
place of residence because in 1993 list, the
village of domicile is shown as Kekurchar
whereas in 2010 voter list it is Daobhangi.
(viii)
In respect of the voter list of 2016, though
names of Majut Ali and Sopia Bibi appeared,
there appeared overwriting in the age of Sopia
Bibi where 45 was written over 30. The High
Court, therefore, expressed doubt on the
genuineness of the document itself.
(ix)
Based on the above analysis of the evidence,
the High Court observed that “net result of the
above discussion is that petitioner had failed to
discharge his burden under section 9 of the
Foreigners Act, 1946 to prove that he was not a
SLP (Crl) No.5598/2019 Page 8 of 20
foreigner but a citizen of India ”. The High Court
further observed: “the narrative presented by
the petitioner suffered from multiple material
contradictions and omissions rendering the
same not only suspicious but highly
improbable .” Consequently, the High Court
declined to interfere with the order passed by
the Tribunal dated 04.03.2017.
6. Pursuant to the order of the High Court, the appellant
was detained. After nearly 2 years of the High Court’s
order, the appellant filed SLP (Crl.) No.5598/2019 along
with an application seeking permission to file additional
documents.
The pleas taken before this Court are (a) that after the
7.
order of the High Court, the appellant had a permanent
account number in his favour, which was issued by the
Income Tax Department on 26.12.2017; and (b) that his
name appeared at serial no.7 in the draft NRC published
by the competent authority on 30.07.2018, consequently,
he could no longer be considered a foreigner.
SLP (Crl) No.5598/2019 Page 9 of 20
8. On 03.07.2019, this Court condoned the delay and
issued notices to the respondents. Thereafter, on
26.07.2019, in view of appellant’s name figuring in the
draft NRC published on 30.07.2018 (wrongly transcribed
as 31.07.2018 in the order), this Court directed release of
the appellant from the Detention Centre, subject to
certain conditions.
Submissions on behalf of Appellant
9. The contention of the learned counsel for the appellant
is that once the name of the appellant stands included in
the draft NRC, the order of the Tribunal, declaring him a
foreigner, and of the High Court, affirming the order of
the Tribunal, cannot be sustained. Moreover, the
Tribunal and the High Court adopted a pedantic
approach in holding that the appellant had failed to
discharge the burden. Otherwise also, minor
discrepancies in the voter list are to be ignored as these
entries are not within the control of the voter. As regards
change of place of residence, it was argued, a citizen of
the country is free to travel from one place to the other
SLP (Crl) No.5598/2019 Page 10 of 20
and therefore, on mere change of domicile from one
village to the other the nationality cannot be doubted.
Submissions on behalf of respondents
10. Per contra, on behalf of the respondents, it was
submitted that a declaration made by the Tribunal that a
person is a foreigner does not get effaced or annulled by
mere inclusion of that person’s name in the draft NRC
because the proceedings of the Tribunal are quasi-
judicial in nature and once a declaration is made by it,
the same can be set aside only by a superior court and
not by the Registering Authority. It was also argued on
behalf of the respondents that the discrepancies in the
documents furnished by the appellant by way of proof of
his citizenship were not only in respect of residence of the
persons through whom the appellant claimed to be a
citizen but also in respect of the school certificate, which
was found doubtful and bogus. Therefore, as by Section 9
of the 1946 Act burden is on the proceedee, the finding of
the Tribunal cannot be faulted.
SLP (Crl) No.5598/2019 Page 11 of 20
11. We have considered the rival submissions and
have perused the materials on record.
Issues
12. Two issues arise for our consideration in this
appeal, namely, (a) whether the findings returned by the
Tribunal and the High Court suffer from any legal
infirmity as to warrant an interference in exercise of this
Court’s power under Article 136 of the Constitution of
India? (b) whether on inclusion of the name of the
appellant in the draft NRC published by the competent
authority in the year 2018, the declaration made by the
Tribunal, as affirmed by the High Court, would be
rendered invalid?
Discussion/ Analysis
13. Issue (a) - As regards the claim of the appellant
that the Tribunal and the High Court adopted a pedantic
approach in discarding the documents for minor
discrepancies and, therefore, their finding stands vitiated,
it be noticed that Section 9 of the 1946 Act places the
burden of proof on the proceedee to prove that he is not a
SLP (Crl) No.5598/2019 Page 12 of 20
7
foreigner . Consequently, the burden was on the
appellant to establish by cogent documents or other
evidence that either he himself had entered the territory
of Assam prior to 25.03.1971 or his ancestors had
entered the territory prior to the said date.
14. In that regard, the appellant traced his ancestry
from Joynal Abdin Seikh by claiming him to be his
grandfather. Voter lists were produced to show that
Joynal’s name was there prior to the cut-off date and the
subsequent voter lists reflected that appellant was part of
that family.
15. The Tribunal as well as the High Court have
considered these documents and have found that those
earlier voter lists relate to a person located in some other
village than the one of which the appellant claimed to be
a resident. In such circumstances, the appellant ought to
have stated in his affidavit, or demonstrated by some
documentary evidence, that his ancestors had migrated
from that village to the other village where the appellant
was reported to be residing, but, according to the
7
7 Sarbananda Sonowal v. Union of India and another, (2005) 5 SCC 665
SLP (Crl) No.5598/2019 Page 13 of 20
Tribunal, there was no such claim by the appellant in his
affidavit. Therefore, the Tribunal discarded the probative
value of those voter list entries. Interestingly, the school
leaving certificate on which heavy reliance was placed by
the appellant was also doubted as there appeared no
reason for it to have been obtained 10 years after passing
from the institution. Moreover, the headmaster of the
school was not called for to prove the authenticity of the
certificate of which duplicate was produced.
16. For the foregoing reasons, if the Tribunal and the
High Court held that the appellant could not discharge
his burden of proving that he is not a foreigner, the view
taken by them cannot be held perverse, or manifestly
erroneous, or unreasonable, as to warrant interference
under Article 136 of the Constitution of India.
17. That apart, it is not the case of the appellant that
any material/ admissible evidence was ignored or there
was misreading of any of the documents produced by the
appellant. We are, therefore, of the view that the findings
SLP (Crl) No.5598/2019 Page 14 of 20
returned by the Tribunal and the High Court do not
suffer from any legal infirmity.
Issue (a) is decided in the above terms.
18.
19. Issue (b) - As regards the effect of inclusion of
the name of the appellant in the draft NRC, which was
published by the competent authority in 2018, it would
be apposite to notice Rule 4 A of the Citizenship
(Registration of Citizens and Issue of National Identity
8
Cards) Rules, 2003 as inserted by GSR No.803 (E), dated
09.11.2009, with effect from 09.11.2009. Rule 4 A reads
thus:
“ 4A. Special provisions as to National
Register of Indian Citizens in State of Assam
– (1) Nothing in rule 4 shall, on and after the
commencement of the Citizenship (Registration
of Citizens and Issue of National Identity Cards)
Amendment Rules, 2009, apply to the State of
Assam.
(2) The Central Government shall, for the
purpose, of the National Register of Indian
Citizens in the State of Assam, cause to carry
out throughout the State of Assam for
preparation of the National Register of Indian
Citizens in the State of Assam by inviting
applications from all the residents, for collection
of specified particulars relating to each family
and individual, residing in a local area in the
State including the citizenship status based on
the National Register of Citizens 1951 and the
8
8 2003 Rules
SLP (Crl) No.5598/2019 Page 15 of 20
th
[electoral rolls upto the midnight of the 24 day
of March, 1971].
(3) The Registrar General of Citizens
Registration shall notify the period and
duration of the enumeration in the Official
Gazette.
(4) The manner of preparation of the
National Register of Indian Citizens in the
State of Assam shall be such as specified in
the Schedule appended to these rules.”
(Emphasis supplied)
Sub-rule (4) of Rule 4 A provides that the manner
20.
of preparation of the National Register of Indian Citizens
in the State of Assam shall be such as specified in the
Schedule appended to these rules.
21. The Schedule attached to the 2003 Rules is titled
“Special Provision As To Manner Of Preparation Of
National Register Of Indian Citizen In State Of Assam”.
22. Paragraph 3 of the aforesaid Schedule provides as
under:
“3. Scrutiny of applications – (1) The scrutiny
of applications received under sub-paragraph
(3) of paragraph 2 shall be made by comparing
the information stated in the application form
with the official records and the persons, of
whom the information is found in order, shall
be eligible for inclusion of their names in the
consolidated list.
(2) The names of persons who have been
declared as illegal migrants or foreigners by
the competent authority shall not be
included in the consolidated list:
SLP (Crl) No.5598/2019 Page 16 of 20
Provided that the names of persons who
came in the State of Assam after 1966 and
th
before the 25 March, 1971 and registered
themselves with the Foreigner Registration
Regional Officer and who have not been
declared as illegal migrants or foreigners by
the competent authority shall be eligible to
be included in the consolidated list .
(3) The names of persons who are originally
inhabitants of the State of Assam and their
children and descendants, who are Citizens of
India, shall be included in the consolidated list
if the citizenship of such persons is ascertained
beyond reasonable doubt and to the satisfaction
of the registering authority;
(4) The Local Registrar of Citizens Registration
may, in case of any doubt in respect of parental
linkage or any particular mentioned in the
application received under sub – paragraph (3)
of paragraph 2, refer the matter to the District
Magistrate for investigation and his decision
and Local Registrar of Citizens Registration
shall also inform the same to the individual or
the family;
(5) The Local Registrar of Citizens Registration
may, in respect of a person who- (a) was
residing in a place other than the State of
th
Assam up to the midnight of the 24 day of
March, 1971; or
(b)has shifted from one district to another
within the State of Assam up to the midnight of
th
the 24 day of March, 1971,
verify information relating to such person
through inter-state correspondence, or, as the
case may be, through inter-district
correspondence.”
(Emphasis supplied)
23. Sub-para (2) to paragraph 3 makes it clear that
the names of persons who have been declared as illegal
migrants or foreigners by the competent authority shall
not be included in the consolidated list.
SLP (Crl) No.5598/2019 Page 17 of 20
24. Admittedly, the draft NRC was published in 2018
and by that time, the appellant had already been declared
a foreigner by the Tribunal.
25. Interpreting the consequence of such declaration,
a three-Judge Bench of this Court in
Abdul Kuddus vs.
9
, held:
Union of India and others
11. It is obvious to us that the persons
“
covered by the sub-para (2) to para 3 of the
Schedule i.e. persons who have been declared
to be illegal migrants or foreigners by the
competent authority fall in a separate and
distinct class and in such cases, no enquiry or
investigation is required to be conducted in
terms of sub-para (4). Such persons cannot,
in terms of the specific language used in sub-
para (2) to para 3 of the schedule, be included
in the National Register of Citizens. The
reason as is evident is that their citizenship
status has already been determined by the
competent authority. A person once declared
an illegal migrant or a foreigner cannot claim
or put forth the claim to the citizenship of
India on the basis that he/she has been
residing in the state of Assam”.
In (supra), this Court also
26. Abdul Kuddus
expounded the expression “competent authority”, as used
in sub-para (2) of para 3 of the Schedule to the 2003
Rules, in the following terms:
9
9 (2019) 6 SCC 604
SLP (Crl) No.5598/2019 Page 18 of 20
“ 22. ... The Foreigners Act and the Citizenship
Act including the Rules framed under the two
Acts have to be read harmoniously as both the
Acts are inter-related and sister enactments.
Pertinently, the rules framed under the
Citizenship Act are subordinate legislation. The
expression competent authority used in sub-
para (2) to para 3 of the Schedule to the 2003
rules would obviously and without a doubt has
reference to the duly constituted authority
under the Foreigners Act. …
Thus, the competent authority referred to in
sub-para (2) to para 3 of the Schedule would
be, without a doubt, the Tribunal
constituted under the Foreigners Act i.e.
1964 Order ”.
(Emphasis supplied)
27. In view of the decision of this Court in Abdul
Kuddus (supra), firstly, consequent to the declaration by
the Tribunal that appellant is a foreigner, the name of the
appellant could not have been included in the draft NRC
and, secondly, even if it has been included, it would not
annul the declaration made by the Tribunal.
28. For the reasons detailed above, the inclusion of
the name of the appellant in the draft NRC would have no
bearing on the order passed by the Tribunal, affirmed by
the High Court, declaring the appellant a foreigner.
29. Issue (b) is decided in the above terms.
SLP (Crl) No.5598/2019 Page 19 of 20
30. In light of the discussion above, and our
conclusions on the issues referred to above, we are of the
view that there is no merit in this appeal. The same is,
accordingly, dismissed. The release order which was
passed at an interim stage stands discharged.
Consequently, the appellant shall be treated and dealt
with as a foreigner. Pending applications, if any, stand
disposed of.
.......................................... J
(Sanjay Karol)
............................................. J.
(Manoj Misra)
New Delhi;
May 19, 2025
SLP (Crl) No.5598/2019 Page 20 of 20