Md. Abdur Rashid @APPELLANT@Hash Union of India & Others

Sambuddha Chakrabarti, J.

The petitioner was an Assistant Sub-Inspector (G.D) of the Border Security Force (the BSF, for short). On several charges leveled against him he

faced trial before the General Security Force Court, (the Court, for short) and was dismissed from service. The first charge against the petitioner was

that he was in possession of a sum of Rs. 40, 335/- during the period from December 20, 2014 to January 3, 2015 which was disproportionate to his

income. The other charges against the petitioner related to his illegally allowing a smuggler to cross the border and help smuggle cattle and contraband

goods on receiving undue gratification.

The petitioner has assailed the trial on the ground of violation of the principle of natural justice as he was not given the opportunity of being heard

properly and was not provided with the copies of the documents. Even the confessional statement of the petitioner addressed to the Commandant

nowhere indicated that he had allowed infiltration of smugglers with animals and contraband goods in the prohibited area. It was also alleged against

the petitioner the he had violated the general orders of the authority. The petitioner alleges that the general order mentioned in the charges was dated

February 25, 2010 with which the battalion of the petitioner had nothing to do.

The petitioner submits that he was not guilty of any of the charges and, therefore, no punishment could be inflicted upon him. The charges have also

not been substantiated at the enquiry and the evidence adduced was contradictory in nature. The petitioner made an appeal to the Director General,

BSF, but the same has been dismissed. In this writ petition the petitioner has prayed for a direction upon the respondents for setting aside the order of

dismissal passed by the respondent no. 5 and the order passed by the appellate authority as well as for other ancillary reliefs.

An affidavit-in-opposition has been filed on behalf of the respondents nos. 1 to 5. It has been stated in the affidavit that the petitioner had accepted his

involvement in smuggling activities in which he helped smugglers to cross ten cows into Bangladesh by loosening the IBBF strands from his duty area

for which he was to be paid Rs. 5000/- by the smugglers. He also confessed his involvement in writing and deposited Rs. 5,000/- with the Sub-

Inspector which he received from the smugglers. During the search of the petitioner one mobile phone along with eight sims and an amount of Rs.

17,335/- were recovered from him out of which Rs. 9,000/- was recovered from his anklet. The petitioner has given a written statement confessing his

involvement in smuggling activities since December 22, 2014. The affidavit records the detailed allegations against the petitioner about his involvement

in smuggling activities. Out of the Rs. 47,000/- that was to be paid to the petitioner he had received Rs. 39,000/- and the balance amount was

remaining with the smugglers. The petitioner had sent Rs. 23,000/- to the bank account of his wife through a civilian of the area.

The petitioner was tried by the Court on as many as nine charges. The Court found him guilty of all the charges and the authorities sentenced him to

be dismissed from service. The petitioner submitted a pre-confirmation petition to the Special D.G. (E.C) against his trial by the Court. The same has

been rejected as being devoid of merit by an order, dated August 3, 2016. He also submitted a post-confirmation petition to the Director General,

B.S.F and the same has also been rejected being devoid of merit.

The allegations made in the writ petition have been denied by the respondents. It has been specifically stated that the petitioner had not performed his

duty diligently and he wrote down his confessional statement in front of the Board of Officers about his involvement in crossing of cattle and other

contraband goods on different occasions. Starting from December 20, 2014 and subsequently on different dates while performing his duties at various

points he allowed one Jainal Khandokar to cross five goats and to smuggle various contraband objects in Bangladesh in consideration of a certain

amount. The finding of the Court has been confirmed by the superior authorities.

The respondents have stated that there was sufficient evidence on record against the petitioner during the trial upon appraisal of which the petitioner

was dismissed from service. With regard to the first charge of possessing Rs. 40,335/-, the respondents state that the monthly income of the petitioner

from known sources was Rs. 33,951/- during the period. P.W. 7 deposed before the Court that he transferred Rs. 23,000/- which was handed over to

him by the accused, in the account of his wife at the State Bank of India, Kaliachak Branch, Maldha.

The respondents have also stated that in the intervening night between January 1 and January 2, 2015 the barbed wires of the border fencing were

found loose where the petitioner was performing his shift duty. On enquiry the petitioner accepted his involvement in smuggling of cattle and submitted

his written statement in his own hand writing. He also handed over Rs. 5,000/- to the Sub-Inspector which he had received from a civilian. The

charges against the petitioner were clearly established at the trial. The Court found that the amount accepted by the petitioner from smugglers as

gratification was not remuneration to which he was legally entitled. On the contrary, he had accepted the gratification as reward for allowing safe

passage for the smuggling purpose.

It has been specifically stated by the respondents that the Court examined 13 prosecution witnesses, afforded opportunity to the petitioner to cross-

examine them, to make statement in defence and to produce defence witnesses. The petitioner declined to produce any defence witness but submitted

his written statement. All the documents were handed over to the petitioner by 42 battalion of the Force which was received by him on December 2,

2015. With regard to the petitioner’s allegation that the relevant general order was passed four years ago, the respondents state that it remained

operative as the earlier area of the responsibility of 42 battalion fell within the jurisdiction of the North Bengal frontier. But from 2011 it became the

part of the Guwahati frontier. Apart from that the said general order used to be conveyed to all the troops of the battalion through different fora. As

per the said order no individual was allowed to keep more than Rs. 500/- with him while deployed at the border. But the petitioner was found to be in

possession of Rs. 17,335/-.

The petitioner had submitted a post-confirmation petition to the Director General, B.S.F. with a prayer to minimize his punishment and to reinstate him

in service which after careful consideration of all the facts and circumstances was rejected as devoid of any merits. The respondents have prayed for

dismissal of the writ petition. The petitioner has filed an affidavit-in-reply largely reiterating his stand in the writ petition. He denied that any sum was

recovered from him while he was on duty or that he did submit any written confession that he had been involved in smuggling activities since

December 22, 2014. He again denied his allegations regarding acceptance of undue gratification from the smugglers for allowing them to pass

contraband goods and cattle to Bangladesh. The evidence of P.W.s 7 to 9 about the remittance of Rs. 23,000/-to the wife’s account was not

relevant. The amount lying in the State Bank of India was lawfully earned by him. The findings of the Court are not tenable and the evidence adduced

by the prosecution witnesses was not genuine, justified and contradictory. He has also reiterated that he had not been given any opportunity of being

heard. Consequently, the findings of the Court and the sentence of dismissal from the service by the authorities were unwarranted by the facts and

circumstances of the case.

Undoubtedly the charges against the petitioner were very serious. The principal thrust of the case of the petitioner is that the charges against the

petitioner were false and they have also not been established at the trial. The Court without considering the totality of the evidence had improperly

held him guilty of the charges and the authorities have imposed the severe punishment of dismissal from service. I have perused the evidence adduced

on behalf of the prosecution before the court. P.W. 1 Kuldeep Singh has given a very detailed statement about how he was informed of the offences

and how and to what extent he received gratification for helping the smugglers to pass cattle and contraband goods to Bangladesh. From the

examination-in-chief of P.W.s 1 to 3 it appears how the petitioner was checked and a list of the items recovered from the possession of the petitioner

was prepared. The petitioner also confessed before the relevant unit that he helped the smugglers on various occasions in various manners which he

had mentioned in his deposition. The modus operandi for contacting the smugglers through his mobile phone with the number has also been mentioned

in details. P.W. 3 has specifically stated that the petitioner had given his written confession of smuggling of cattle and how much money he had

received from the smugglers. He has substantiated that Rs. 9,000/- was recovered from the anklet of the petitioner, Rs. 5,000/- was given to the Sub-

Inspector, Rs. 2,000/- was kept in his moneybag, etc. Eight mobile sim cards were also recovered during the search of the personal items. The

specific numbers of the sim cards along with the companies were also mentioned by P.W. 3.

The deposition of P.W. 4 is still more revealing. He specifically stated that the petitioner had given out to him that he had received gratification for

crossing cattle to Bangladesh and narrated how he helped the smugglers in crossing the cattle from Indian side to Bangladesh side. He has

corroborated P.W. 3 about the recovery of cash money from the petitioner. The petitioner himself in his own hand writing admitted his involvement in

the matter and how much money he had received from the smugglers. He also referred to the written statement of the petitioner in Hindi as well as in

English which show how he was detailed for duty and how much of money he received on various dates. He produced the copies of the relevant

documents which were proved by him. In the confessional statement made by him he admitted to have received gratification from Jainal Khandokar

and how used to make contact with the smugglers and give them signals.

To the same effect is also the evidence of the other witnesses. From the evidence it is clear that all the witnesses have supported the prosecution case

without any contradiction or inconsistency between them. They have said in one voice about the involvement of the petitioner in the acts alleged

against him as well as the confessional statement made by the petitioner. The document relied on by them have been individually proved at the trial

and the petitioner was given an opportunity to cross-examine all the witnesses which he had declined. It is a settled principle of law that if a statement

made by a witness in course of his deposition in examination-in-chief is not countered by way of a cross-examination or no suggestion is given to him it

amounts to acceptance of the veracity of the statement made therein. In the present case it is not any individual statement that was not specifically

challenged in cross-examination. The petitioner declined to cross-examine all the witnesses for the prosecution even when they were specifically

stating about the recovery of money from his possession and making his confessional statement. It definitely amounts to acceptance of the statements

made by these witnesses.

The petitioner also made a statement to the court after the statutory warning that he was not bound to make any statement and whatever he would

state would be taken down in writing and might be used in evidence. Despite this caution he made a statement and admitted the allegations against

him. It appears that he had also admitted that he received Rs. 39,000/- out of the total deal for providing safe passage in crossing over the contraband

goods and cattle at various duty hours. He also admitted to have given his confessional statement in his own hand writing. In other words, he

supported the case of the prosecution. He also declared that he did not have any other source of income apart from his monthly salary.

Thus the evidence adduced by the prosecution clearly establishes the charges against the petitioner. The order of the Director General rejecting the

petition is also a detailed one and has taken note of the various documents produced before the Court. I find nothing wrong in the approach of the

respondents and the assessment of uncontroverted evidence of the witnesses for the prosecution. The allegation that the petitioner was not given the

proper opportunity of hearing appears to be vague and without substance. The respondents have specifically stated in the affidavit that all the

documents were handed over to the petitioner on January 2, 2015 and the petitioner has not controvered it in the affidavit-in-reply. On the top of

everything the petitioner was given opportunity to cross-examine all the witnesses repeatedly which he had declined which clearly establishes that he

had nothing to challenge the statements made by these witnesses. That apart, merely by claiming that he had not been given proper opportunity of

hearing will not suffice. The petitioner was required to mention specifically on which count he had made the allegations.

Production of the pass book of the bank account by itself is no sufficient proof of the legal possession of money in the hand of the petitioner. The

petitioner was also required to establish the legal source of the amount lying to his account in the bank which he has failed in the present case.

Moreover, it is not necessary to go into that aspect as the prosecution witnesses have specifically stated how the money was remitted from the

possession of the petitioner’s bank account to his wife’s bank account. The petitioner admitted that in his confessional statement as well.

The point taken by the petitioner that the confessional statements were obtained from him upon coercion does not appear to be convincing at all.

There have been more than one confessional statements made by him on different dates and by his own hand writing. If the petitioner was forced to

make the statements he could have complained about it to the superior authority long before which he did not. At least he could have taken the point at

the trial. On the contrary, he admitted the whole thing in his statement before the court itself even after being altered of the consequences of such

statement.

It is a settled principle of law that a writ court does not sit in the appeal over a finding of an enquiry, particularly if it is concurrently arrived at. The

scope of interference by the writ court is limited to cases where the authorities have arrived at a perverse finding, viz., a finding based on no evidence,

a finding without considering the material evidence on record and a conclusion based on the findings which no man of ordinary prudence could have

arrived at. In the present case there is no question of invoking any single one of them. It is only because of the vehement assertion made by the

petitioner that there is no evidence against him establishing the charges that this court undertook the exercise of considering the evidence recorded.

I find that the evidence against the petitioner is overwhelming and they conclusively established the charges alleged against the petitioner. The

sentence imposed by the authorities is commensurate with the gravity of the charges. The writ petition has no merit and does not call for any judicial

intervention. The writ petition is dismissed. Â There shall be no order as to the costs. Urgent Photostat certified copy of this order, if applied for, be

supplied to the parties on priority basis upon compliance of all requisite formalities.