Supreme Court Sets Aside Punishment Imposed On BSF Commandant For Allegedly Allowing Trans-Border Drugs Smuggling

The Supreme Court on Thursday(April 13) set aside the judgement and order of the Punjab & Haryana High Court which upheld the conviction of an Ex-Commandant of BSF under various provisions of BSF Act and NDPS Act, on the ground that there was no direct and cogent evidence against him.

The division bench of Justice Krishna Murari and Justice Ahsanuddin Amanullah noted:

“In the absence of direct and cogent evidence against the appellant, even if the GSFC was convinced of the appellant’s guilt, the punishment handed out was too harsh, paying heed that the appellant would, even then, be a first-time delinquent, and not a habitual offender. Arguendo, that there be some semblance of truth in the allegations, the punishment meted out, in our considered view, was disproportionate.”

Facts

The appellant was serving as the Commandant of the 1956 Battalion (BN) (BSF) with Headquarters at Mamdot, Punjab. On April 5, 1995 the local police conducted a search and a few Jerrycans of Acetic Anhydride- a controlled substance under Section 9A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the “NDPS Act”), were stated to be located in Pakistani territory and in the fields owned by Indian civilians adjoining the border.

A FIR was registered on the same was in Police Station Ferozepur, Punjab by the local police naming two persons namely Lakhwinder Singh and Surjit Singh @ pahalwan as the accused and showing them to be smugglers.

On April 7, 1995 the appellant was placed under arrest. However, search of the appellant’s house did not lead to any recovery of any incriminating material.

On April 9, 1995 an Inquiry was ordered which recorded that one Inspector Didar Singh, who was in actual and physical command and control of the area in the vicinity of which the alleged Jerrycans were recovered made a statement that he was involved in the incident at the behest of the appellant.

On the basis of the inquiry report, the appellant was charge sheeted under Section 40 (Violation of good order and discipline) and Section 46 (Civil offences) of the Border Security Force Act, 1968 (BSF Act) on July 4, 1995 which were later dropped.

A fresh charge sheet was filed on October 20, 1995 comprising two charges under Section 46 of the BSF Act for Civil offence committed in contravention of Section 25 (Punishment for allowing premises, etc., to be used for commission of an offence) of the NDPS Act and one charge under Section 40 of the BSF Act.

In the meantime, the appellant superannuated on August 31, 1995 after rendering service in the Force for 31 years, 6 months and 22 days.

On April 10, 1996, the General Security Force Court (GSFC) convicted the appellant and sentenced him to 10 years rigorous imprisonment; imposed fine of Rs. 1 lakh and dismissed him from service.

The appellant filed statutory petition before the concerned authority which was rejected on November 2, 1996.

The appellant filed a Criminal Writ Petition before the Punjab & Haryana High Court for quashing his trial and the impugned order and further seeking directions to quash all consequential orders and to release the pensionary and other benefits to him.

In the meantime, the other co-accused- Lakhwinder Singh was discharged by the learned Trial Court in the absence of any evidence.

The High Court dismissed the said Writ Petition which has been challenged before the Supreme Court.

Contentions

The Counsel appearing for the appellant submitted before the Supreme Court that the charge against the appellant of knowingly permitting Lakhwinder Singh, on the intervening night of March 9/10th, 1995, to take out 30 Jerrycans of 40 litres each of Acetic Anhydride from India to Pakistan through border fencing gate No. 205 of BOP Barrake under his control was not proved against the appellant.

It was further contended that two other co-accused persons who were stated to have taken away the Jerrycans have been given relief in the case and therefore the case against the appellant automatically fails.

It was also argued that the trial itself was a nullity as the BSF Act does not envisage the GSFC trying offence(s) under the NDPS Act and it also did not obtain the requisite sanction from the Central Government for initiating trial against the appellant as required under and in terms of Section 59(3) of the NDPS Act.

The appellant’s counsel further submitted that the sentence of dismissal from service was also illegal as the appellant retired even before the issuance of the charge sheet in question and thus there cannot be any sentence of dismissal from service as per the Rule 166 of BSF Rules, 1969 (the Rules), which stipulate that the sentence of dismissal shall take effect from the date of promulgation of such sentence or from any subsequent date as may be specified at the time of promulgation.

On the point of withholding the appellant's pension, gratuity and other benefits, it was submitted that having already superannuated on August 31, 1995, there was no authority vested in the Force to withhold the same.

Court’s Observation

The Court while relying upon its various judgment noted that in the armed forces of the Union, including the paramilitary forces, utmost discipline, unity of command are the sine qua non but the doctrine of proportionality still holds the field.

The Court observed:

“On the alleged criminality, the undisputed and uncontroverted fact remains that the appellant was commanding the Force operating over a large area, including from where the Jerrycans allegedly moved from the Indian side to the Pakistani side. However, it is equally not in dispute that the actual manning of the area is by the subordinate personnel of the Force. In the present instance, the subordinate personnel have been adjudged guilty, indicating their active involvement. Being the persons on the spot, it was their primary responsibility to ensure that no crimes/offences/questionable incidents took place on their watch. Moreover, there is no direct evidence against the appellant.”

It was opined by the Court that convicting the appellant solely on the basis of the statement made by Subedar Didar Singh – who said to have confessed to his involvement in the incident on the behest of and upon the direction of the appellant, was wholly unjustified.

The Court held;

“As emphasised hereinbefore, save and except Subedar Didar Singh’s statement, roping in the appellant, there is no material against him. Hence, ceteris paribus, without other material(s) incriminating the appellant or pointing to his guilt, the statement of a single person alone, ought not to have, in this instance, resulted in his conviction.”

“The High Court ought to have been cognizant that, considering the seriousness of the issue(s) raised, it was not denuded of the power to sift through the evidence, even in a criminal writ petition.”, the Court noted.

The Court relied upon its judgment in Nawab Shaqafath Ali Khan v Nawab Imdad Jah Bahadur (2009) 5 SCC 162 and reiterated that High Courts under Articles 226 and/or 227, are to exercise their discretion “…solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the judge.”

Thus, the Court set aside the impugned judgment and order of the Punjab & Haryana High Court as well as the conviction and sentence awarded by the GSFC.

It further held that the appellant is held entitled to full retiral benefits from the date of his superannuation till date and directed that all payments due to him shall be processed and made within twelve weeks.

The appellant was represented by Vivek Singh AOR

Case Title: B.S. Hari Commandant v. Union of India and Ors.

Citation : 2023 LiveLaw (SC) 303

Coram: Justice Krishna Murari and Justice Ahsanuddin Amanullah

BSF Act. -Supreme Court quashes the order of General Security Force Court imposing dismissal from service, imprisonment for 10 years and fine of 1 lakh on a a BSF commandment for allegedly allowing cross-border transport of substances banned under the NDPS Act-appellant  held entitled to full retiral benefits from the date of his superannuation till date

Armed Forces - in the armed forces of the Union, including the paramilitary forces, utmost discipline, unity of command et al are the sine qua non. That said, the doctrine of proportionality still holds the field -Para 36

Uniform format for judgments- Supreme Court says that is desirable that all Courts and Tribunals number the paragraphs in the judgments-suggest adoption of a uniform format for Judgments and Orders, including paragraphing - Para 56, 57

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