Anowar Hussain @ Anar Hussain v. The Union of India and 6 Ors

ORDER Date : 24.10.2024 (K.R. Surana, J) Heard Mr. P.K. Roychoudhury, learned counsel for the petitioner. Also heard Mr. P.S. Lahkar, learned CGC for respondent nos.1 and 6; Mr. J. Payeng, learned standing counsel for the respondent nos.2, 4 and 7; Mr. P. Sarma, learned Govt. Advocate appearing for respondent no.3; and Mr. H. Kuli, learned counsel appearing on behalf of Mr. A.I. Ali, learned standing counsel for the respondent no.5. Page No.# 3/6

¶2The petitioner has filed this writ petition under Article 226 of the Constitution of India seeking interference with the opinion dated 23.03.2018, passed by the learned Member, Foreigners Tribunal No.8th, Barpeta in FT Case No. 74/2018, inter alia on the ground that he is not the proceedee, and on the ground that the notice was not served in accordance with para 3(5)(f) of The Foreigners (Tribunal) Order, 1964 ("1964 Order" for short). It is also submitted that in the meanwhile, the petitioner has been detained on 02.09.2024 pursuant to the said ex parte opinion and is presently lodged at Matia Detention Camp, Goalpara.

¶3Per contra, the learned standing counsel for the Home Department has opposed the prayer made in this writ petition in respect of the ground taken that the petitioner is not the proceedee. However, he has fairly submitted that the service of notice was not in accordance with paragraph 3(5)(f) of the 1964 Order.

¶4On a perusal of the records of the learned Tribunal, as produced by the learned standing counsel for the Home Department, it is seen that the process server has returned the process on the ground that the petitioner has left the village along with family. Moreover, in support of the said stand, a certificate of the Lot Gaonbura, without bearing any date, is also made a part of record, indicating that the petitioner has left the village.

¶5The requirement of the provision of paragraph 3(5)(a) and 3(5)(f) of the 1964 Order are as follows: "3(5)(a) The notice shall be served at the address where the proceedee last resided or reportedly resides or works for gain, and in case of change of place or residence, Page No.# 4/6 which has been duly intimated in writing to the investigating agency by the alleged person, it shall be served at such changed address by the Foreigners Tribunal; * * * 3(5)(f) If the proceedee has changed the place of residence or place of work, without intimation to the investigating agency, the process server shall affix a copy of the notice on the outer door or some other conspicuous part of the house in which the proceedee ordinarily resides or last resided or reportedly resided or personally worked for gain or carries on business, and shall return the original to the Foreigners Tribunal from which it was issued with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did do, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed."

¶6Accordingly, it appears that the prescription of the provision of paragraph 3(5)(f) of the 1964 Order is that even if the proceedee may have left the village without intimation to the investigating agency, the process server is required to affix a copy of the notice on the outer door or some other conspicuous part of the house in which the proceedee ordinarily last resided.

¶7The said procedure as prescribed under para 3(5)(f) of the 1964 Order, having not been followed, the service of the notice is held to be improper. Therefore, the Court is of the considered opinion that in order to provide fair chance to the petitioner to defend himself, the matter is required to be remand back to the Foreigners Tribunal No.8th, Barpeta.

¶8Accordingly, the Court is inclined to set aside the opinion dated

23.03.2018, passed by the learned Member, Foreigners Tribunal No.8th, Barpeta in FT Case No. 74/2018, arising out of IM(D)T Reference Case No.8527/98.

¶9However, taking note of the fact that the petitioner is presently in Page No.# 5/6 detention camp, the Court is inclined to provide that the Superintendent of Police (Border), Barpeta shall secure the attendance of the petitioner, namely, Anowar Hussain @ Anar Hussain from the Matia Detention Camp, Goalpara and on the petitioner furnishing a bail bond of Rs. 5,000/- with one local surety of the like amount to the satisfaction of the said authority, he shall be released on bail. Further, the Superintendent of Police (Border), Barpeta is directed that on appearance of the petitioner before him, the biometrics of the iris of both eyes, the fingerprints of both hands and the photographs of the petitioner shall be obtained. The said authority shall also obtain necessary information and documentation as required under the Rules from the petitioner for securing his presence and thereafter, he shall be produced before the learned Member, Foreigners Tribunal No.8th, Barpeta.

¶10The petitioner shall produce a certified copy of this order before the Superintendent of Police (Border), Barpeta within 7 (seven) days from today. On the certified copy of this order being produced before the Superintendent of Police (Border), Barpeta, the said authority shall do the needful so as to enable the concerned jailor/any other competent authority, who is the In-Charge of the Matia Detention Camp, Goalpara to hand over the custody of the petitioner to the Superintendent of Police (Border), Barpeta so as to produce the petitioner before the Foreigners Tribunal No.8th, Barpeta by 4 (four) working days thereafter.

¶11In the event the petitioner fails to regularly appear before the learned Tribunal, or fails to cooperate in the proceeding, the learned Tribunal shall be at liberty to pass any order as per law. Page No.# 6/6

¶12Accordingly, this writ petition stands allowed to the extent as indicated above.

¶13The records produced by the learned standing counsel for the Home Department is returned back.

JUDGE JUDGE Comparing Assistant

PageoNo.#o1/6 GAHC010193872024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/4891/2024o ANOWARoHUSSAINo@oANARoHUSSAINo S/O-oLATEoSARBESHoALIo@oSABBESHoALI,oRESIDENToOFoVILLAGE-o DIMAPUR,oP.O.oKALGACHIA,oP.S.oKALGACHIA,oDISTRICT-oBARPETA,o ASSAM VERSUSo THEoUNIONoOFoINDIAoANDo6oORSo REPRESENTEDoBYoTHEoSECRETARYoTOoTHEoGOVT.oOFoINDIA,oMINISTRYo OFoHOMEoAFFAIRS,oSHASTRIoBHAWAN,oNEWoDELHI-o1 2:THEoSTATEoOFoASSAM oREPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.o OFoASSAM oHOMEoDEPARTMENT oDISPUR oGUWAHATI-6 3:THEoDEPUTYoCOMMISSIONER oBARPETA oP.O.oANDoDISTRICT-oBARPETA oASSAM oPIN-o781301 4:THEoSUPERINTENDENToOFoPOLICEo(B) oBARPETA oP.O.oANDoDISTRICT-oBARPETA oASSAM oPIN-o781301 Page No.# 2/6 5:THE ELECTION COMMISSION OF INDIA NEW DELHI TO BE REPRESENTED BY CHIEF ELECTION COMMISSIONER OF INDIA NEW DELHI-1 6:THE STATE COORDINATOR OF NATIONAL REGISTRATION ASSAM BHANGAGARH LACHIT NAGAR GUWAHATI-5 7:THE OFFICER-IN-CHARGE SORBHOG POLICE STATION P.O. SORBHOG DISTRICT- BARPETA ASSAM PIN- 78131 Advocate for the Petitioner : MR. N HAQUE, MR M HUSSAIN,MR. A K AZAD,MR. S R BARBHUIYA Advocate for the Respondent : DY.S.G.I., SC, ELECTION COMMISSION.,SC, F.T,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE SOUMITRA SAIKIA