Kashmir Singh vs Union of India

Ashoke Kumar Dasadhikari, J.—The petitioner in this writ petition have questioned all impugned actions as well as orders of the respondents and prayed for quashing and/or setting aside of the charge sheet containing amended charge No.II, the proceedings before the General Security Force Court, the finding and sentence passed by that Court as well as the order rejecting the petition of the petitioner u/s 117(1) of the Border Security Force Act and the order of confirmation since passed by the Court as well as the order rejecting the petitioner petition u/s 117(2) of the BSF Act (hereinafter referred to as BSF Act).

The case of the writ petitioner in this writ petition is that he was enrolled by the Border Security Force (hereinafter referred to as the BSF) as SI (DE) on 7th September, 1970. Since the date of the petitioner was discharging his duties and functions in various capacities with utmost sincerity, honesty and integrity. On 15th June, 1995, the petitioner was promoted to the rank of Deputy Commandant. The petitioner kept up his satisfactory performance and was instrumental in thwarting several smuggling operations and proliferation of trans-border crimes while he was posted in 127 Bn BSF deployed on the Indo-Bangla border in the District of North 24 Parganas in West Bengal. The Commandant of 127 Bn BSF appointed the petitioner as Sector Commander for supervising the functions of two companies that is "D" Coy and "F" Coy. The petitioner motivated the troops to a considerable extent and with their active help, effected huge seizures of contraband goods including livestock and also apprehended criminals connected with smuggling and other trans-border crimes. This had created lot of animus in the mind of the anti-social elements of the locality towards the petitioner because their livelihood and survival at stake. To take revenge against the petitioner, the smugglers and some interested persons lodged false complaint against the petitioner alleging acceptance of illegal gratification by the petitioner from them for aiding them in their smuggling activities. However, while the petitioner was working as Deputy Commandant in 127 Bn BSF unit, he was transferred to the 122 Bn BSF unit in April, 1999. While the petitioner was in 127 Bn BSF unit on a sanctioned leave he was put under close arrest pursuant to an order passed by a DIG Section HQrs., Tagore Villa on 31st August, 1999. Subsequently, the petitioner was served with a pretrial charge sheet u/s 40 of the Border Security Force Act, 1968. The impugned charge sheet contained three impugned charges u/s 40 of Border Security Force Act.

Charge No. 1 reads as follows:-

AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE

In that he,

having been deployed on Indo Bangladesh border as Sector Comdr Hasnabad from 20.06.1998 to 03.11.1998 connived with smuggler namely Ram Krishna Das Dadu s/o late Shri Dhiren Das r/o village North Barunhat PS: Hasnabad and improperly and without authority accepted Rs.5000/- per week as gratification for allowing smuggling by the said civilian prejudicing good order and discipline of the force.

Charge No. 2 reads as follows:-

AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE

In that he,

having been deployed on Indo Bangladesh border, as Coy Comder BOP Soladana from 04.11.1998 to 20.03.1999 connived with smuggler namely Mohd Zahur Ali Gazi, s/o Mohd. Abdul Hassan Gahazi r/o South Bakhundi PS: Bashirhat and improperly and without authority accepted Rs.6000/- per week as gratification for allowing smuggling by the said civilian prejudicing good order and discipline of the force.

Charge No. 3 reads as follows:-

AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE

In that he, having been deployed on Indo Bangladesh border, as Coy Comder BOP Soladana from 04.11.1998 to 20.03.1999 connived with smuggler namely Ghulam Ghazi, s/o late Shri Shakur Ali Ghazi r/o vill Taki, PS: Hasnabad and improperly and without authority accepted Rs.2000/- per week as gratification for allowing smuggling by the said civilian prejudicing good order and discipline of the force.

The impugned first charge sheet was issued by K. K. Sharma (SM Commandant 44 Bn) BSF.

The petitioner filed his written objection on 21st October, 1999 against the purported preliminary proceeding conducted by the Commandant, 44 Bn BSF.

On the self same date the respondent No. 7 had ordered for recording evidence under Rule 45B(2) (III) of the Border Security Force Rules, 1969 (hereinafter referred to as the ''said rules'') and the recording of evidence was conducted. A report to that effect was prepared on that basis of which on 1st January, 2000 the respondent No. 7 had directed recording of evidence under Rule 59(1) (III).

In the additional recording of evidence apart from BSF officers, evidence of one Golak Chandra Baine being a smuggler (civilian) was also recorded. The said Golak Chandra Baine voluntarily deposed in the said proceeding. The said Golak Chandra Baine was sent by one Lutfer Mondal who was also a smuggler (civilian) as well as an informer. On the basis of such deposition of Golak Chandra Baine the authorities issued an amended charge sheet on 11th July, 2001 under Rule 59 second proviso of the said rules, whereby the second charge was altered and the petitioner was charged u/s 46 of the said Act allegedly for receiving Rs.10,000/- from Golak Chandra Baine on 15th August, 1998 for releasing 24 seized cattle''s.

The amended second charge reads as follows:-

COMMITTING A CIVIL OFFENCE THAT IS TO SAY, BEING A PUBLIC SERVANT, ACCEPTING FROM ANY PERSON, FOR HIMSELF ANY GRATIFICATION WHATEVER, OTHER THAN LEGAL REMUNERATION AS A MOTIVE FOR SHOWING IN THE EXERCISE OF HIS OFFICIAL FUNCTIONS, FAVOUR TO ANY PERSON, PUNISHABLE U/S 7 OF PREVENTIOIN OF CORRUPTION ACT, 1988.

In that he, at village Dandirhat, Dist- 24 Prgns(N) (WB), on 15th Aug''98, while working as Sector Comdr, Hasnabad, accepted a sum of Rs.10,000/- (Rupees Ten Thousand) only from Golak Chandra Baine, s/o Late Radhnath Baine, r/o village - Tentulia, Dist - 24 Prgs(N) (WB) to arrange release of TATA 608 WB - 25-5448 and auction of 24 cattle heads in his favour which were seized by BSF party on 14th Aug''98 from Berachapa Bhaduri Road.

An order for holding General Security Force Court on 17th July, 2001 was issued by the respondent No. 3 on 12th July, 2001. The said GSF Court had duly assembled and enquiry was conducted by recording evidences of eleven prosecution witnesses out of which five were smugglers and six defense witnesses. The proceeding was concluded on 5th August, 2001. The GSF Court on 13th August, 2001 had announced its finding.

The prosecution witness lead contradictory and/or self-inconsistent statements as regards the place of seizure, the number of cattle seized, the other persons at the time of seizure, taking the alleged bribe from a person not named in the charge sheet. And also the day on which the alleged bribe had been taken by the petitioner.

In the findings of the GSF Court the petitioner was found not guilty in respect of charges I and III, but he was allegedly found guilty of charge II of the amended charge sheet, but after materially altering the said charge in as much as the date of receiving the alleged gratification of Rs.10,000/- and that from a different person who is not named in the said charge.

The said charge II pertains to receiving money from Golak Chandra Baine on 15th August, 1998 whereas the finding was that he had received the same from the said Golak Chandra Baine on 17th August, 1998. Such alteration was done without the knowledge of the petitioner and without giving him an opportunity to counter the new allegations raised against him in the finding. This is clearly violative of principle of natural justice and fair play and equity. The petitioner was treated with hostile discrimination and he was not given proper opportunity to his case. The findings are all contrary to the charge sheet, to the amended second charge the finding fully unreasoned. Based on such perverse finding the petitioner was dismissed from his service and sentenced to six months of rigorous imprisonment.

The petitioner had filed a pre-confirmation petition u/s 117(1) of the said Act on 16 July, 2001 challenging the said sentence passed against him, but the same was also rejected by an order dated 24th July, 2002.

The writ petitioner have challenged the entire proceedings including the procedure adopted by the respondent authority in violation of the provisions as enumerated in the said Act and Rules framed thereunder as well as in gross violation of the principle of natural justice, equity and fair play.

Mr. Soumya Majumdar, learned Counsel representing the writ petitioner submitted that the petitioner was initially charged u/s 47 of the said Act, but the second charge, as labeled against the petitioner was amended in due course of the proceedings and was subsequently converted the same as a civil offence u/s 46 of the said Act for accepting Rs.10,000/- from one Golak Chandra Baine on August 15, 1998 for releasing 24 seized cattle and the truck. The concerned respondent in violation of the provisions as enumerated in the said Act and the Rules framed thereunder chosen to consider the evidence adduced in the said GSFC proceedings on the principles of preponderance of probability. When strict rules of evidence is applicable under the aforesaid Act, Mr. Majumdar referred the following sections which are quoted hereunder:-

(a) Section 2(1)(d) :- "Civil Offence" means an offence which is triable by a Criminal Court.

(b) Section 46 :- An officer charged under the instant provision for "Civil Offence" shall be tried by a Security Force Court and upon conviction shall be liable to suffer such punishment assigned for the offence by the law in force in India or such other punishment as mentioned in the said Act.

(c) Section 75 :- As per the provisions enumerated herein no person the said Act shall be tried twice on the same charge if he has been acquitted or convicted by a SFC under the said Act or a Criminal Court.

(d) Section 80 read with Rule 41 :- As per the provisions enumerated herein the authorities have the discretion to choose between a Criminal Court and a Security Force Court before which the accused person charged under the said Act shall be tried and proceeded against.

(e) Section 87 :- The Indian Evidence Act, 1872 shall apply to all proceedings before the Security Force Court.

Thus, he was submitted that the plain reading of the aforementioned provisions would make it clear that the standard of the principle before GSFC ought to be beyond reasonable doubt, if not to be prove to the hilt.

It is submitted that even if the said proceeding before the GSFC is considered to be a disciplinary proceeding the standard of proof in a quasi criminal proceeding must be of much higher standard, and proof to the hilt. Further in such proceeding mere suspicion or even high suspicion is not a legal proof. The evidence adduced on behalf of the prosecution must have nexus with the charges leveled against the petitioner. In this regard Mr. Majumdar cited the following decisions:-

Narinder Mohan Arya Vs. United India Insurance Co. Ltd. and Others, ; Sahdeo @ Sahdeo Singh Vs. State of U.P. and Others,

(2209) 2 SCC 570 para 20, 33; Sher Bahadur Vs. Union of India (UOI) and Others,

Mr. Majumdar, learned Counsel appearing for the writ petitioner also drew attention of the Court that the authorities have failed to consider the contradictory depositions of the prosecution witness and had come to the impugned conclusion relying upon the deposition of PW 1, 4 and 5 only when there were 11 prosecution witness out of which 5 were smugglers and 6 defense witnesses had adduced their evidence. Among these witnesses, 8 prosecution witnesses and 4 defense witnesses had deposed with regard to Charge No. 2 of the amended second charge. It was submitted that procedure laid down in the said Act and the rules stipulates that it was for the prosecution to prove the charges, but in the instant case they have miserably failed to do. Due to the inconsistency in the evidence of the prosecution witness the respondent authorities have failed to prove any of the charges against the petitioner especially the second charge in as much as the date on which the petitioner had accepted the illegal gratification from the said Golak Chandra Baine. The authorities have miserably failed to produce any evidence to link the charges with the alleged misconduct committed either on 15th August, 1998 or even on 17th August, 1998. It was specific case of the petitioner that on 15th August, 1998 he was not present at the place where the misconduct had allegedly taken place, which remained undisputed and further that the auction had been conducted on 17th August, 1998 was a part of the petitioner''s alibi. He cited the judgment reported in Subhash Chand Vs. State of Rajasthan,

Mr. Majumdar submitted that the respondent authorities, thus, most arbitrarily and illegally held the petition of guilty of Second Charge. Mr. Majumdar has also cited a decision in support of his submission reported in 2009 Vol. 2 SCC 541 paragraph 17.

Mr. P. S. Bose, learned Senior Counsel appearing for the respondent authorities submitted that the petitioner was tried by duly constituted General Security Force Court (GSFC) on three charges which u/s 46 of the Border Security Force Act. The GSFC had the jurisdiction to try the petitioner by virtue of the provisions prescribed u/s 46 of the Border Security Force Act. He submitted that before trial of the petitioner by the said GSFC, the cognizance of offences alleged to have been committed by the petitioner was duly taken by the Commandant 44Bn BSF. And the petitioner was heard by the Commandant under Rule 145B which prescribes the provisions for hearing of charge against an officer by his Commandant. Hearing took place on 21st October, 1999 on a charge sheet dated 15th October, 1999. The charge sheet contains three charges, each u/s 40 of the BSF Act. After hearing the petitioner the Commandant remanded him for preparation of record of evidence in accordance with BSF Rule 45B(2) (ii).

The Record of Evidence (ROE) was duly prepared by Shri R. K. Sood, Second in Command 44Bn BSF in presence and hearing of the petitioner following the procedure as prescribed of BSF Rule 48. The statement of three prosecution witnesses were recorded in presence and hearing of the petitioner and the petitioner was given due opportunity to cross examine prosecution witness which he duly availed. After recording such statement of the prosecution witnesses, petitioner was given due opportunity to make statement in his grievance and also to call upon witness in his defence in terms of BSF Rule 48(3) and 48(4). The petitioner duly availed the opportunity and made a statement and also examined three defence witnesses. The Record of Evidence prepared by the Recording Officer was forwarded to the Commandant who by virtue of provisions prescribed under BSF Rule 51(A) (2) (iv), having gone through the ROE proceedings forwarded the case to the superior authority i.e. DIG Sector, Headquarters, BSF, Kolkata for trial of the petitioner by a Security Force Court. The DIG forwarded the case to higher authority i.e. frontier Headquarters, BSF, South Bengal with the recommendation that the case be disposed of by holding a GSFC. After that the ROE proceedings and the charges against the petitioner were scrutinized by the law officer and the case was returned to the DIG, SHQ BSF, Kolkata for recording further evidence in accordance with BSF Rule 59(2) (b). Accordingly, additional Record of Evidence was prepared by Deputy Commandant 44Bn, BSF in presence and hearing of the petitioner in accordance with BSF Rule 48. The statement of four prosecution witnesses were recorded and the petitioner provided due opportunity to cross examine prosecution witness, make statement in his defence and call upon witness in his defence which was duly availed by the petitioner thereafter ROE and additional ROE proceedings were submitted to the Commandant who after going through the same referred the case to the superior authority i.e. DIG and the superior authority forwarded the case to the higher authority i.e. frontier Headquarters, BSF, South Bengal with a recommendation for convening the GSFC in terms of BSF Rule 59(2) (a).

On receipt of documents of the higher authority for convening GSFC, the charges and the evidence against the petitioner were scrutinized by the Commandant/Law Officer Grade - I, HQ South Bengal, Frontier and as per advice of the Law Officer along with the draft charge sheet which were remanded in accordance with BSF Rule 59 second proviso, were placed before the Inspector General, Frontier Headquarter, BSF, South Bengal for his perusal of an order. The Inspector General having gone through the advice of the Law Officer decided to accuse petitioner by GSFC.

Accordingly, the GSFC was convened with constitution of five officers for holding trial of the petitioner on 17th July, 2001. The accused petitioner engaged Shri Manas Kumar Bandhopadhyay, Advocate as defence Counsel. Before the commencement of the trial accused petitioner provided with the copy of reframed charge sheet along with copy of ROE and additional ROE to prepare his defence in terms of BSF Rule 63. During trial, the accused petitioner pleaded not guilty on all three charges and, accordingly, the proceedings of GSFC was held on the plea of not guilty. During the trial eleven prosecution witnesses and six defence witnesses were examined before the GSFC. The petitioner was provided due opportunity which the petitioner duly availed in as much as cross examined the prosecution witness, made statement in his defence and examined defence counsel. During the said trial prosecution witnesses 2 and 3 were declared as hostile witnesses. Upon considering the evidence the GSFC returned the matter with the findings that the petitioner was found not guilty on first and third charge but was found guilty of the second charge with variations specified thereto; in terms of BSF Rule 99(4) and the variation is that as per evidence of Customs Inspector auction was held on 17th August, 1998 in stead of 15th August, 1998. The other variation is that receiving of illegal gratification of Rs.10,000/- is from Moizzam Hussain Ghaji not from Golak Chandra Baine.

Mr. Basu, learned Senior Counsel submitted that reframing of Charge No. 2 did not cause any prejudice to the petitioner. He submitted it is on record that the charges which were framed u/s 40 of the BSF Act were reframed by the higher authority by virtue of prescribed provisions under BSF Rule 59(2) (ii) (second proviso). It was submitted that the evidence gathered during investigation days of the case were facts based upon which the charge sheet were reframed and charges were prepared in terms of Section 46 of the BSF Act read with Section 7 of PCA 1988. It was submitted that proper opportunity of hearing was given at all stages and it was well known to the accused petitioner about the charges on which his trial was undergoing. Mr. Basu, learned Senior Counsel then submitted that the findings by the GSFC on the amended second charge with the variation therein to the extent that the petitioner received illegal gratification of Rs.10,000/- from Moizzam Hussain Ghazi in stead of Golak Chandra Baine and auction took place on 17th August, 1998 in stead of 15th August, 1998, as per second charge on which GSFC trial was held, had caused no prejudice to the petitioner. It was submitted that GSFC have found the petitioner of guilty of the second charge with the variations did not effect the petitioner''s right whether statutory or constitutional and it is on record that Golak Chandra Baine deposed his statement during additional ROE in presence and hearing of the petitioner and was extensively cross examined by the petitioner.

He submitted that it was in the deposition of Golak Chandra Baine that on 15th August, 1998 the petitioner has accepted illegal gratification of Rs.10,000/- from him in presence of Moizzam Hussain. But Moizzam Hussain could not be examined at the time of preparation of additional ROE and, accordingly, the charges were reframed before the trial of the petitioner by GSFC. Accordingly, the second charge was amended and the date of acceptance of illegal gratification by the petitioner was mentioned above on 15th August, 1998.

It was also submitted that from the deposition of the prosecution witnesses it was revealed that the accused petitioner accepted illegal gratification of Rs.10,000/- from Moizzam Hussain who had been given the said money by Golak Chandra Baine. He also submitted that the Customs Officers deposed before the GSFC that the auction was held on 17th August, 1998, and he produced notice, etc. dated 17th August, 1998 to support his deposition. Mr. Basu, candidly submitted before this Court that the second witness Lutfar Mondal and Moizzam Hussain who deposed before the GSFC stated the date of auction and the date alleged acceptance of illegal gratification of Rs.10,000/- by the accused petitioner were same, but they were not sure about the exact date of transaction of money made to the accused petitioner. It was submitted that since the date of auction i.e. 17th August, 1998 was duly corroborated by the first witness for the defence, the GSFC returned with the findings with variation regarding acceptance of illegal gratification by the accused petitioner on the date that is 17th August, 1998 in stead of 15th August, 1998. It was reiterated by Mr. Basu that GSFC trial proceedings was conducted in free and fair manner.

Mr. Basu submitted that writ jurisdiction is limited to the judicial review of the proceedings i.e. to the extent of scrutiny of decision making process and not of the decision made. Similarly, there is no scope of reappraisal of evidence, substitution of finding and interference in the sentence unless the case of evidence, procedural infirmities and the sentence part is shockingly disproportionate to the conscience of Court. None of the aforesaid propositions are attracted in so far as the proceedings have been conducted with due process of law. The sentence awarded also commensurate with the gravity of the offence committed by the accused petitioner. In support of such contention Mr. Basu cited following judgments:-

i) Union of India (UOI) and Another Vs. S.S. Ahluwalia,

ii M.P. State Agro Industries Development Corporation Ltd. and Another Vs. Jahan Khan,

iii) State of Meghalaya and Others Vs. Mecken Singh N. Marak,

iv) Chairman cum Managing Director, Coal India Limited and Another Vs. Mukul Kumar Choudhuri and Others,

v) The Administrator, Union Territory of Dadra and Nagar Haveli Vs. Gulabhia M. Lad,

vi) Charanjit Lamba Vs. Commanding Officer, Southern Command and Others,

Mr. Bose further submits that since there is no procedural irregularities in conducting the trial of the accused, the question of prejudice to the petitioner does not and cannot arise and as such the writ petition filed by the petitioner deserves to be dismissed.

Heard the learned Counsel appearing for the parties and considered the submissions made by them as well as the materials disclosed in the proceedings by the respective parties. It appears from records that this amended second charge which was raised against the writ petitioner was not at all proved in GSFC proceedings. Therefore, the charge of receiving illegal gratification of Rs.10,000 from one Golak Chand Baine on 15th August, 1998, as framed after taking additional evidence, has completely failed. The writ petitioner have been able to prove successfully that on 15th August, no such incident took place nor he received any money from Golak Chand Baine. It is also evident that the GSFC materially altered the charge in its conclusion, that the alleged incident took place on 17th August, 1998 instead of 15th August, 1998 and the gratification was given by one Moizzam Hussain instead of Golak Chand Baine.

It is clear that due to inconsistency in the evidence of the prosecution witnesses the respondent''s authorities failed to prove Charge No. II (Second Charge). In my view, the respondent''s authorities failed to produce any evidence to link the charges with the alleged misconduct on 15th August, 1998. It was specific case of the petitioner that on 15th August, 1998, the petitioner was not present at the place where the commission of the alleged misconduct allegedly taken place. The aforesaid facts remain undisputed. Further that the auction had been conducted on 17th August, 1998 was a part of petitioner''s alibi. It is evident that the respondent authorities have illegally altered the charge in their findings and allegedly found the writ petitioner''s guilty of amended Second Charge. There were further disputes as regards the amount of money given and by whom the same was given and none of the discrepancies in the deposition had been taken into consideration by the respondent''s authority.

In my view, such material alteration of the charge in the finding in as much as altering the date on which the misconduct allegedly took place, without giving proper opportunity of hearing had been prejudicially effected the petitioner in his defense. Mr. Basu, learned Senior Counsel although mentioned Rule 99 (4) of the rules which permits General Security Force Court to record a special finding based on the facts which it finds to be proved by evidence, that differ materially from the facts alleged in the statement of particular in charge, but are nevertheless sufficient to prove the offence stated in the charge, the same is permissible provided the difference of the fact is not so material so as to prejudice in his defence.

In the instant case, I find that the alteration of the date on which the alleged offence has been committed being one of the most vital fact in the statement of charges, is a material alteration so as to prejudice the petitioner in the defense. Moreover the respondent authorities failed to adduce proper evidence even to prove the offence as framed under amended Charge No. 2 had been committed on 17th August, 1998 instead of 15th August, 1998, though it was stated in the finding of the Court. Therefore, the said proceeding has not been fairly conducted which is in gross violation in the provisions as stipulated in Rule 99 (4). In my view, violation of the principles of natural justice causing immense prejudice to the petitioner vitiated the entire proceedings and rendered the impugned order perverse and based on no evidence and, therefore, liable to be set aside.

In my considered opinion, there is no reason provided in the impugned finding for convicting the petitioner for an alter charge, even if same is considered to be correct, a conclusion bereft of reason is antithesis of the rule of adjudication.

In my view, the decisions cited by Mr. Basu in support of his contention are not relevant and applicable in the facts and circumstances of this case.

Thus, it can safely be concluded also that the writ petitioner was not granted proper opportunity of hearing and the principles of natural justice is violated in the instant case. The concerned authorities have failed to prove the amended Second Charge as well as the impugned altered charge which was created and it was allegedly claimed that it was a minor change and/or variation for which the writ petitioner has not been prejudiced.

In my view, the writ petitioner had been seriously prejudiced simply because of the reason that the charge which was framed after taking additional evidence clearly stipulated that the gratification was received from Golak Chand Baine on 15th August, 1998 whereas the conclusion is otherwise i.e. the gratification was taken from Moizzam Hossain Ghaji and the incident did not occur on 15th August, 1998 rather it has occurred on 17th August, 1998. One could understand that the authorities concerned could have framed the charge after taking further evidence in that regard, but then they did not thought fit to take further evidence and to come to a conclusion about the occurrence date and the acceptance of gratification from the concerned person. In my view it is a material alteration in the charge sheet for which the writ petitioner was prejudiced. It is clear than even in spite of such material alteration the petitioner was not granted opportunity to deal with the same, not allowed to give evidence in support of his defence and he was deprived in all respect. This material alteration in the charge followed by violation of principles of natural justice make the findings of GSFC is contrary to law and not sustainable keeping in view of all the aforementioned findings I set aside the impugned charge sheet and all the impugned orders of GSFC as well as the other respondents and direct the respondents to release all pensionary benefits treating the writ petitioner in service till the date of his retirement. The respondents are to release all pensionary benefits within a period of eight weeks from the date of communication of the order. This writ petitioner is, thus, disposed of. There would be no order as to costs.