The Supreme Court has overturned the conviction of a former BSF Commandant who was accused of violating various provisions of the BSF Act and NDPS Act. The Punjab & Haryana High Court had upheld the conviction, but the Supreme Court found that there was no direct and cogent evidence against him. The court noted that even if the General Security Force Court (GSFC) was convinced of the appellant's guilt, the punishment was too harsh and disproportionate, given that he was a first-time offender. The division bench of Justice Krishna Murari and Justice Ahsanuddin Amanullah emphasized that the punishment was unwarranted, especially since there was no substantial evidence against the appellant.
The former Commandant of the 1956 Battalion (BSF) with Headquarters at Mamdot, Punjab, was accused of being involved in a drug smuggling case in 1995. The local police conducted a search and found Jerrycans of Acetic Anhydride, a controlled substance under the NDPS Act, in Pakistani territory and in fields owned by Indian civilians near the border. The police registered a FIR and named two individuals as the smugglers.
The appellant was placed under arrest on April 7, 1995, but no incriminating material was found during the search of his house. An inquiry was ordered on April 9, 1995, and during the inquiry, Inspector Didar Singh stated that he was involved in the incident at the behest of the appellant. However, no direct or cogent evidence was found against the appellant, and the Supreme Court has now set aside his punishment, citing the lack of evidence and the disproportionate punishment handed out.
The appellant was charged under Section 40 and Section 46 of the Border Security Force Act, 1968 (BSF Act) based on the inquiry report, which accused him of violating good order and discipline, and committing civil offenses. However, these charges were dropped later. A fresh charge sheet was filed on October 20, 1995, which accused the appellant of committing civil offenses in contravention of Section 25 of the NDPS Act, and violating Section 40 of the BSF Act. The charges were related to the alleged use of premises for drug smuggling activities. However, the Supreme Court has now set aside the punishment imposed on the appellant, as there was no direct and cogent evidence against him, and the punishment was deemed disproportionate.
After serving in the Border Security Force for 31 years, 6 months, and 22 days, the appellant superannuated on August 31, 1995. However, on April 10, 1996, the General Security Force Court (GSFC) convicted him of the charges under the BSF Act and the NDPS Act, sentencing him to 10 years of rigorous imprisonment and imposing a fine of Rs. 1 lakh. He was also dismissed from service. The appellant filed a statutory petition against this decision, but it was rejected on November 2, 1996. Subsequently, he filed a Criminal Writ Petition before the Punjab & Haryana High Court, seeking to quash his trial and the impugned order and to release his pensionary and other benefits. However, the High Court dismissed the writ petition. It is worth noting that the other co-accused, Lakhwinder Singh, was discharged by the trial court due to a lack of evidence. The appellant has now challenged the High Court's decision in the Supreme Court.
The Supreme Court heard arguments from the appellant's counsel, who contended that the charge of knowingly permitting the smuggling of Acetic Anhydride across the border was not proven against the appellant. They further argued that the case against the appellant should fail since two co-accused persons were given relief in the case.
Additionally, the counsel argued that the trial was a nullity since the BSF Act did not allow the GSFC to try offenses under the NDPS Act and there was no requisite sanction obtained from the Central Government to initiate the trial against the appellant.
The appellant's counsel also argued that the sentence of dismissal from service was illegal since the appellant retired before the issuance of the charge sheet, and Rule 166 of the BSF Rules, 1969 stipulated that the sentence of dismissal could only take effect from the date of promulgation of the sentence or any subsequent date specified at the time of promulgation.
Finally, the appellant's counsel submitted that since the appellant had already superannuated on August 31, 1995, there was no authority vested in the Force to withhold his pension, gratuity, and other benefits.
The Supreme Court referred to its previous judgments and emphasized that in the armed forces of the Union, including the paramilitary forces, maintaining discipline and unity of command are crucial, but the principle of proportionality remains significant.
In its observation, the Court noted that although the appellant was in command of the Force operating in the area where the Jerrycans allegedly moved from the Indian side to the Pakistani side, it was the subordinate personnel who were responsible for the actual manning of the area. The Court also highlighted that the subordinate personnel had been adjudged guilty, indicating their active involvement in the incident. Therefore, convicting the appellant solely on the basis of the statement made by Subedar Didar Singh, who claimed to have confessed to his involvement in the incident on the appellant's direction, was not justified as there was no direct evidence against the appellant. The Court emphasized that the doctrine of proportionality must be considered in cases concerning the armed forces of the Union, including paramilitary forces, where utmost discipline and unity of command are necessary.
The Supreme Court held that the conviction and sentence awarded to the appellant by the General Security Force Court (GSFC) was unjustified as there was no material evidence against him except for the statement made by Subedar Didar Singh. The Court also criticized the Punjab & Haryana High Court for not sifting through the evidence and relying solely on the statement of a single person. The Court set aside the High Court's order and directed that the appellant is entitled to full retiral benefits from the date of his superannuation till date, and all payments due to him shall be processed and made within twelve weeks. The appellant was represented by Vivek Singh AOR.
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TAGS: Supreme Court conviction dismissal BSF pension gratuity paramilitary forces proportionality subordinate personnel direct evidence statement criminal writ petition judicial conscience retiral benefits Vivek Singh AOR.
