Rofiqul Hoque vs Union Of India

2025 INSC 730 REPORTABLE

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)

JUDGMENT

MANOJ MISRA, J.

1. Leave granted.

2. This appeal arises from proceedings1 under the

Foreigners Act, 19462, whereunder, vide order dated

04.03.2017, the appellant was declared foreigner, who

entered India illegally after 25.03.1971, by the Foreigners

Tribunal3, Jorhat, Assam. The aforesaid order of the

Signature Not Verified 11 Case No.FT/SVR/62/14 Digitally 2 signed by 2 1946 Act RAJNI MUKHI Date: 2025.05.19 3 IST 3 Tribunal 17:19:46 Reason:

SLP (Crl) No.5598/2019 Page 1 of 20

Tribunal was challenged before the Guwahati High Court 4

under Article 226 of the Constitution of India 5 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.

44 High Court 55 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 Kekurchar6 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

66 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.

7.The pleas taken before this Court are (a) that after the

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 foreigner7. 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 77 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.

18. Issue (a) is decided in the above terms.

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

Cards) Rules, 20038 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

88 2003 Rules

SLP (Crl) No.5598/2019 Page 15 of 20 [electoral rolls upto the midnight of the 24 th 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)

20. Sub-rule (4) of Rule 4 A provides that 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.

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 before the 25th 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 Assam up to the midnight of the 24 th day of March, 1971; or

(b)has shifted from one district to another within the State of Assam up to the midnight of the 24th 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.

Union of India and others9, held:

“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”.

26. In Abdul Kuddus (supra), this Court also

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:

99 (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

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