WP(C)/4661/2022 of JALAL UDDIN Vs THE UNION OF INDIA AND 6 ORS on 20 August 2026

ORDER

Date : 21.08.2026 (K.R. Surana, J)

Heard Mr. H. Ali, learned counsel for the petitioner. Also heard Mr. B. Chakaraborty, learned CGC; Mr. J. Payneg, learned standing counsel for the FT and Border matters; Ms. S. Katakey, learned standing counsel for the ECI; and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate for the State respondent.

2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned opinion dated 12.04.2022, passed by the learned Member, Foreigners Tribunal (3rd), Nagaon, Assam, in F.T. Case No. 668/2016, corresponding to FT. Case No. 644/08, by which the petitioner was declared as an illegal migrant.

3. In brief, facts of the case of the petitioner is that notice was served on him in a substituted manner but from 08.03.2019 till 26.07.2019, the petitioner was absent without steps. Thereafter, he entered appearance on 30.07.2019 and filed his written statement on 31.08.2019 and thereafter, in support of his defence, the petitioner had submitted his evidence-on-affidavit as OPW-1 and of Jaigon Nessa, the projected mother of the petitioner as OPW-2. Along with his evidence-on-affidavit, the petitioner has exhibited 9 (nine) documents. The petitioner was cross-examined and discharged and the case was fixed for cross- examination of DW-2 on 24.03.2020 by order passed on 18.02.2020, but since then there was no representation on behalf of the petitioner and DW-2 also did not turn up for the cross-examination. In the meantime, the COVID-19 pandemic period had set in and as there was no representation from the petitioner till 25.02.2022, the learned Tribunal by an order dated 25.02.2022, fixed the matter for opinion on 12.04.2022 and accordingly, on 12.04.2022, the impugned opinion was passed. The learned standing counsel for the Border and FT matter has opposed the prayer for any interference with the impugned opinion on the ground that the petitioner had defaulted in appearance and did not present DW-2 for cross-examination.

4. Be that as it may, for the purpose of judicial proceedings, the Supreme Court of India in the case of In Re: Cognizance for Extension of Limitation (2022) 3 SCC 117, by an order dated 10.01.2022, declared that the period between 15.03.2020 and 28.02.2022 shall be excluded from the computation of period of limitation. The question of limitation does not arise in the present application but the fact remains that during that period COVID-19 pandemic had arrived in the Country. It is in the said context that it would be appropriate to mention that in the impugned opinion, the learned Tribunal took note of the 1st lockdown period between March, 2020 to October, 2020 and the 2nd period of lockdown was January, 2021 to October, 2021. The said learned Tribunal had recorded in the impugned opinion that 1st and 2nd lockdown due to COVID-19 pandemic had not been taken into consideration while passing the order.

5. Accordingly, the Court is of the considered opinion that if the COVID- 19 pandemic period is excluded, the petitioner had defaulted in appearing and taking steps on 25.02.2022, which was the date previous to the passing of the impugned opinion. Accordingly, the Court in exercise of its power under Article 226 of the Constitution of India, finds that the petitioner deserves one opportunity to present his projected mother, namely, Jaigon Nessa, OPW-2, for facing cross-examination and on the said date or such other date as may be fixed by the learned Tribunal, the petitioner would ensure that hearing on his behalf is conducted by his learned counsel without seeking any adjournment.

6. In order to facilitate the cross-examination of OPW-2 and arguments by his learned counsel, the impugned opinion dated 12.04.2022, passed by the learned Member, Foreigners Tribunal (3rd) Nagaon, is hereby set aside. It is clarified that the Court has not examined the merits of the matter.

7. The petitioner who is duly represented by his learned counsel, is directed to appear before the learned Member, Foreigners Tribunal (3rd) Nagaon, on or before 28.09.2026 and by producing a certified copy of this order as well as OPW-2 for cross-examination, await further directions that may be passed by the said learned Tribunal.

8. It is further provided that on the date of appearance of the petitioner, he shall be ready and willing to take bail of such sum as may be deemed fit and proper by the learned Tribunal. It is provided that the bail so granted by the learned Tribunal shall be valid for a period of 30 (thirty) days from the date of the opinion that may be passed by the said learned Tribunal.

9. The Registry shall return back the Tribunals records expeditiously.

10. The writ petition stands allowed to the extent as indicate above.

11. There shall be no order as to cost.

JUDGE JUDGE

Comparing Assistant