1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.1960/2006. (Mahendra Kachchwah Vs. Union of India & Others) DATE OF ORDER : October 13th, 2008 P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Mr. K.K. Shah for the petitioner. Mr. Ravi Bhansali for the respondents. BY THE COURT : Heard learned counsel for the petitioner. In this writ petition, the petitioner has prayed for quashing order Annex.-3 dated 21.07.2004 and Annex.-6 dated 22.06.2005 and prayed that the petitioner may be reinstated in service with all consequential benefits. According to facts of the case, the petitioner was enrolled in the Army Regiment on 16.01.2002 as Gunner (operator). He was dismissed from service on 21.07.2004 after completion of three and a half years of service in the army upon the allegation of theft of four live rounds of 7.62 mm rifle ammunition in between 21.03.2004 and 30.04.2004. As per petitioner, during his service for three and a half years the petitioner worked with 2 sincerity, honesty, dedication and zeal. While serving at high altitude astride the line of control at the post known as “Mata Post” the petitioner was granted leave by the Unit and he came to Leh and from there he was to board a Jet Airways flight for Delhi. According to the petitioner, as per the procedure whenever any soldier leaves a forward post, his entire baggage is checked by the troop leader or any other superior officer and, accordingly, baggage of the petitioner was checked on 14.04.2004 and nothing unauthorized was found in his baggage. The petitioner left his post on 14.04.2004 after his baggage was checked. Alongwith him two more personnel proceeded on leave and all of them alongwith other personnel from various locations were taken by Army vehicle and were dropped at 257 Transit Camp, Leh. The petitioner was to board the Jet Airways plane on 16.04.2004 and while checking the baggage at the Airport through the X-ray scanning it was detected that the bag of the petitioner had 4 rounds of 7.62 mm ammunition. After detection of these four rounds the Airport Security staff handed over the petitioner to the police. The Police lodged the FIR against the petitioner and was charged with an office u/s 7/25 Indian Arms Act. The petitioner contacted his unit and informed the unit of the incident. After investigation, the police filed charge-sheet against the petitioner for offence under Section 7/25, Indian Arms Act. As provided under Section 125 of the Army Act, after cognizance 3 having been taken by the Magistrate, the Army authorities moved the criminal Court for taking over the case and, accordingly, the learned Magistrate handed over the petitioner to the Army authorities and furnished entire statements referred to in sub-section (1) of Section 475, Cr.P.C. It is submitted by the petitioner that the entire challan papers filed by the police were in Urdu language except a certificate given by Capt. Prashant Kukreti (O/C 'D' Company), therefore, the same have not been filed alongwith the writ petition. As per Section 475, Cr.P.C., once an accused is handed over by the criminal Court to the Army authorities, the same is for the purpose of the accused being tried by the Court Martial. It is however contended by the petitioner that after cognizance has been taken by the criminal Court and the case has been handed over to the competent military authority for trial by the Court Martial, no preliminary investigation by the Comanding Officer under Army Rule 22 can be resorted to and no summary of evidence is required to be recorded, but in this case, the Army authorities proceeded to record the summary of evidence. The petitioner declined to cross-examine any of the prosecution witnesses as he made a statement that he has committed a mistake and taken the ammunition to show the same to the members of his family as he is the only person in the Army from his family and just to show them the ammunition took the ammunition with him as they had never seen the ammunition. Therefore, this mistake cannot be termed as a crime and he 4 assured that he would not commit this mistake in future. It is also stated in the writ petition that after recording the summary of evidence the petitioner was subjected to trial by the Summary Court Martial and, in that, he was issued charge- sheet on 16.07.2004. The petitioner was charged to have committed the theft of 4 rounds of ammunition costing Rs.50/-. As per the petitioner, upon his admission he was dismissed from service vide the order dated 21.07.2004. Against the said order a petition was filed under Section 164(1) of the Army Act on 27.11.2004 before respondent No.2 and the said petition was based on various ground; but, none of the grounds was taken into consideration and, straight away, the said petition was dismissed. Learned counsel for the petitioner vehemently argued that dismissal from service is totally in contravention of the procedure laid down in the rules. Though the petitioner made a mistake and he took 4 rounds of ammunition with him and assured that he will not repeat this mistake in future, his prayer was not acceded to and he was dismissed from service. It is submitted that there is total lack of procedure but the disciplinary authority dismissed the petitioner from service and the said order of dismissal has also been upheld by the competent authority while rejecting the petition under Section 164 of the Army Act. According to the petitioner, the order impugned is not a speaking order and no reason whatsoever has been assigned. So also, as per the criminal jurisprudence, it is 5 mandatory to seal the incriminating articles taken from the possession of the accused but all the procedure for taking action was ignored. Learned counsel for the petitioner invited my attention to the judgments in, (1) AIR 1993 SC 341, Kartar Singh Vs. State of Punjab, (2) 2006 (2) SCT 1, Hans Raj Vs. Union of India & Others, (3) AIR 1987 SC 1878, Union of India Vs. Major S.K. Sharma. Learned counsel for the petitioner submitted that there is complete departure from the rules of procedure, therefore, the order of dismissal from service is illegal and against the principles of natural justice. Hence, the impugned order deserves to be quashed and the petitioner may be reinstated. In reply, it is submitted by the respondents that there is no illegality in the order passed by the competent authority who took the reply of the petitioner into consideration and, admittedly, the petitioner accepted in his statement that 4 rounds of ammunition stolen were found in his possession during checking at the Airport. It is submitted by the respondents that the petitioner himself accepted the said statement but he submitted that this is a mistake and he would not repeat the same in future. According to the respondents, having admitted that fact the petitioner cannot be permitted to take shelter of any provision of law to say that the order is illegal. It is contended that in the Army it is expected from the soldiers that they will not act in casual manner and will not carry 6 ammunition with them unauthorizedly, therefore, the procedure is prescribed for frisking and checking all the baggage at the time of leaving the post for home after sanction of leave. In this view of the matter, no technicality will come in the way of taking disciplinary action by the Army authorities upon such admission made by the petitioner in which he admitted that four rounds of 7.62 mm ammunition were found in his possession at the time of X-ray scanning at the Airport and, therefore, no interference is required in this matter. The allegation against the petitioner is very serious as he has committed theft of 4 rounds of 7.62 mm rifle ammunition and willfully and deliberately kept the same hidden from various physical security checks carried out at different stages which is clear indication of his mala fide intention to illegally take away the stolen ammunition which could have been used or provided for any antinational or antisocial purpose. It is contended on behalf of the respondents that the judgments cited by learned counsel for the petitioner have no applicability to the facts and circumstances of the present case. I have considered the rival submissions made by both the parties. In my opinion, first of all, it is not disputed by the petitioner himself and, rather, it is stated by the petitioner in the writ petition that he made admission before the authorities that he took 4 rounds of ammunition of 7.62 mm when he left for availing leave which were detected at the time of X-ray scanning 7 at Airport and, thereafter, case was registered against him. When the petitioner himself is not disputing the possession of 4 rounds of 7.62 mm ammunition and carrying the same with him, then, there is no question of raising voice that the respondents have violated the prescribed procedure at the time of taking disciplinary action against him because the Disciplinary Authority has rightly taken the decision upon the statement made by the petitioner himself before the Court Martial proceedings with regard to possessing 4 rounds of ammunition which were said to be stolen from the Army. When the fact of possession of 4 rounds of 7.62 mm ammunition is not disputed by the petitioner, then, in my opinion, the petitioner is not entitled to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. More so, in para 10 of the writ petition, the petitioner himself has stated that he committed a mistake while taking the ammunition with him to show the same to his family members and assured the authorities that he will not commit the mistake in future. Similarly, in the petition filed under Section 164 of the Army Act, he accepted that 4 rounds of ammunition were detected in his baggage during the X-ray checking at Leh Airport. Further, in para 9 of the petition, he stated that he was carrying ammunition with the sole aim of showing the same to his family members. Therefore, the petitioner cannot be permitted to raise voice against the procedure of taking action because nothing was to be done by the disciplinary authorities 8 after acceptance of the position with regard to the fact that ammunition were found in his possession. The Disciplinary Authority has, therefore, rightly passed the order of dismissal and so also the appellate authority has rightly observed in the order Annex.-6 that the petitioner was illegally carrying 4 rounds of 7.62 mm ammunition. Therefore, considering the nature and gravity of the charge, the sentence of dismissal from service is just and proper. In my opinion, therefore, the judgments cited by learned counsel for the petitioner are not applicable in the present case because the petitioner himself is accepting that 4 rounds of 7.62 mm ammunition were found in his possession at the time of X-ray scanning at the Airport; meaning thereby he has willfully and deliberately kept the same hidden from various physical security checks carried out at different stages which is clear indication of his malafide intention upon which action has been taken against him. In view of the aforesaid, this writ petition is hereby dismissed. There shall be no order as to costs. (Gopal Krishan Vyas) J. Ojha, a.