Criminal Writ Petition No. 3 of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Writ Petition No. 3 of 1997 Date of decision: 19.02.2010 B.S. Hari ...Appellant Versus Union of India and others ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. T.S. Sangha, Senior Advocate with Mr. Narinder Singh, Advocate for the petitioner. Mr. Anil Rathee, Advocate for Union of India. ***** RANJIT SINGH J. The petitioner, who was serving as a Commandant in the Border Security Force (for short BSF), has filed this writ petition to impugn his trial by General Force Court as well as its finding, sentence and so also the order of confirmation. He has further prayed for writ of mandamus directing the respondents-UOI to release his pension and pensionary benefits. The petitioner was lodged in the Central Jail, Ludhiana and filed the present writ petition. Presently, he is on bail granted to him as was ordered by this Court on 19.09.1997. FACTS:- In the year 1994-95, the petitioner was serving as Commandant 67 Battalion (BN) Border Security Force with Criminal Writ Petition No. 3 of 1997 2 Headquarters at Mamdot. Various companies of the Battalion were deployed along the border. C company Commanded by Didar Singh was also so deployed with Headquarters at post Bareeke. As per the petitioner, on 05.04.1995, one incident was brought to his notice where Jerricans of Acetic Anyhydride were allegedly found in the Pakistan Territory and in the fields owned by civilians adjoining the border area. This was on a raid conducted by local police on the basis of FIR No. 92 dated 05.04.1995. Copy of this FIR has also been attached as Annexure P-1. The petitioner avers that area from where the Jerricans were found was not under the jurisdiction of BSF. On receipt of information about this raid, the petitioner visited the site of the C company, no action, however, was taken by the local police to either involve the petitioner or any other BSF officials, when Jerricans were confiscated. The Jerricans were taken in custody and sealed. The samples taken from these Jerricans were found to contain chemical known as Acetic Anyhydride, which is stated to be controlled substance under Section 9A of the Narcotics and Drugs Psychotropic Substances Act (hereinafter referred to as 'NDPS Act') whereas allegation against the petitioner ultimately as made were under Section 25 of the NDPS Act. Though the petitioner was not told anything initially but on 07.04.1985, he was directed to hand over the charge to Second in Command Sh. S.K. Pandey. The petitioner was directed to move to Subsidiary Training Centre (SCT), BSF Kharkan Camp where he was sent on attachment and finally placed under arrest. On 9/10.04.1995, the house of the petitioner was searched in his absence but nothing incriminating was found therefrom. The Criminal Writ Petition No. 3 of 1997 3 petitioner would complain that thereafter he was moved from one unit to other, which according to him was to mentally and physically torture him. The petitioner alleged that he was not even allowed to meet his family members or other relatives to have legal assistance. PLEADINGS BY PARTIES:- On 09.04.1995, one man staff court inquiry was ordered to investigate the circumstances, concerning this recovery. The petitioner would allege that Inspector Didar Singh, who actually was in the physical command and control of area from where the Jerricans were recovered, in connivance with the senior officers of the BSF, named the petitioner involving him illegally. The said Inspector Didar Singh statedly also made a confession admitting his involvement in the smuggling of the items, at the behest of the petitioner, which as per this confessional statement, was carried out by two smugglers namely Lakhwinder Singh and Surjit Singh. The petitioner would attribute this confession by Inspector Didar Singh to be an attempt only to save himself which was on assurance of some superior officers that he would be treated leniently. The petitioner would also allege that his superior Sh. T.Correya (respondent No. 3), I.G., Headquarters, was inimical towards him, the petitioner being honest and upright Officer. As per the petitioner, he had asked for payment of money for the tins of ghee, which he had supplied to the Director General of BSF on the directions of respondent No.3. Respondent No. 3 did not like this and so became the cause and reason for his false involvement by either planting the said item or by making Inspector Didar Singh to turn against the petitioner. The petitioner would rather urge that Inspector Didar Singh was the Criminal Writ Petition No. 3 of 1997 4 Commandant of the entire area and in this regard would refer to Annexure P-3, which are the duties of the Company Commander as was to be performed by Inspector Didar Singh. The petitioner accordingly would put the entire blame on Inspector Didar Singh. The petitioner would also find fault with the action of the respondent in detailing one man inquiry and would say that he was not afforded opportunity to defend himself before the said enquiry. The petitioner complains that he was not permitted to make a statement before the inquiry officer and was also not allowed to cross examine the witnesses, who gave evidence or to call any witness in his defence. The petitioner otherwise was continuously kept in arrest and was moved from one place to another. Without providing any inquiry report, finding or opinion, further proceedings were initiated against the petitioner. The petitioner would pray for quashing the entire proceedings on this ground alone. The petitioner would also challenge the action of the respondent in attaching him to various other unit on the ground that this could be done only when prima facie case was made out. The petitioner would also urge that the charge sheet was served on him on 04.07.1995 after hearing of charges under Rule 45 (b) but the further directions were issued without following the provisions of said rule. Direction to prepare record of evidence was accordingly issued and the officer junior to the petitioner detailed to record the same. The petitioner would further allege that no charge could be made out against him but still he was shocked to receive a fresh charge sheet containing 3 charges, two out of which were under Section 46 of BSF Act for civil offences committed in contravention of Section 25 of Criminal Writ Petition No. 3 of 1997 5 the NDPS Act. One charge was under Section 40 of the BSF Act. The direction to try the petitioner by way of General Security Force Court was accordingly issued on 25.10.1995. The Court assembled on 30.10.1995. After the trial, the petitioner was held not guilty of the first charge but guilty of the second charge with some variation and also guilty of the third charge. This above finding was announced subject to confirmation. Having found the petitioner guilty of the charges as mentioned, he was sentenced to suffer rigorous imprisonment for 10 years and to be fined Rs. 1,00,000/- coupled with dismissal from service. The sentence awarded to the petitioner was also announced subject to confirmation. The proceedings were accordingly submitted for confirmation before the Competent Confirming Authority, who vide his order dated 10.04.1986 confirmed the finding as well as the sentence. The petitioner had filed the statutory post confirmation petition under Section 117 of the BSF Act. When no decision was being taken on the said petition for considerable period, the petitioner filed Civil Writ Petition No. 13020 of 1996 before this Court. This writ petition was disposed of with the direction to the respondent to decide the statutory petition/appeal. Ultimately, the petitioner was informed on 02.11.1996 that the said petition filed by him was rejected by the Central Government being devoid of merits. Copy of this has also been placed on record as Annexure P-8. The petitioner has accordingly filed the present petition to challenge all the orders standing against him. Being put to notice, written statement on behalf of Criminal Writ Petition No. 3 of 1997 6 respondents No. 1 to 3 has been filed. Apart from raising preliminary objection, it is specifically pleaded in the reply that the written statement is being filed in response to the specific averments and the other documents, which are not denied specifically may not be taken to be admitted by the answering respondents. Infact the respondent has sought permission to reserve their right to file a detailed parawise reply, in case anything was not answered in proper manner. As per the reply filed, the petitioner was working as Commandant of 67 Battalion BSF, which was deployed on International Border. It is stated that the petitioner was involved in commission of offences under the NDPS Act as well as under the BSF Act. It is alleged that he knowingly permitted Lakhwinder Singh alias Lakha and Surjit Singh alias Pahalwan to take out 30 Jerricans of 40 litres each of Acetic Anyhydride from India to Pakistan on the night intervening 9/10 March, 1995. On night intervening 4/5 April, 1995, similarly these persons named above were permitted to take 40 Jerricans of 40 litres each of this item from India to Pakistan. The reply further discloses that the petitioner had pressurized his subordinate Inspector Didar Singh to facilitate the smugglers to smuggle out contraband goods from India to Pakistan. Because of this the petitioner was attached as already noticed, and placed under suspension. It is also pointed out that he superannuated on 31.08.1995 but was detained and kept in force custody by invoking provisions of Section 77 of the BSF Act. As per the respondent, the petitioner had approached this Court by filing Civil Writ Petition No. 16008 of 1995 while the Security Force Court proceedings were in progress but the said writ petition was dismissed on 18.01.1996 on Criminal Writ Petition No. 3 of 1997 7 merits. The petitioner was accordingly convicted on 25.01.1996 and sentenced as already noticed. The averments made on merits are also denied. It is stated that no FIR was lodged against the petitioner and his name also did not figure in FIR No.92 dated 5.4.1995. It is then stated that the petitioner was present at the relevant time and place from where the recovery of Acetic Anhydride was made. It is pointed out that on the basis of suspected involvement of the petitioner, he was removed from Command as it was a case of smuggling. Reference is made to the fact that the matter was published in the local newspaper, which attracted the attention of the senior officials of the Government and Force. The petitioner was thus placed under arrest because of his suspected involvement in smuggling activities. It is then pointed out that the investigation by way of Staff Court Enquiry was ordered, which was conducted and concluded in a fair manner. The respondent would plead that it is for the first time that the petitioner has made wild allegation against respondent No.3, which would in itself show that this is an after thought. Explaining the facts, it is pointed out that Inspector Didar Singh was functioning under the command of the petitioner and was his subordinate. The petitioner had allegedly pressurized said Inspector to participate in the transaction of smuggling. Other averments in regard to the legal infirmities in the conduct of court of enquiry and violation of other provisions of the BSF Act and the rules are also denied. It is accordingly pleaded that the writ petition filed by the petitioner deserves to be dismissed. The petitioner did not file any replication. Criminal Writ Petition No. 3 of 1997 8 SUBMISSIONS BY THE PARTIES:- Mr.T.S.Sangha, learned Senior counsel appearing for the petitioner, has made number of submissions. He would first contend that the main offender i.e. the civilian smuggler named in the charges, with whom the petitioner had allegedly connived, in carrying out the smuggling have not been tried. From this the counsel would contend that the petitioner could not have been tried and punished as he is alleged to have only connived/conspired with those persons who are the main smugglers. Besides pleading that General Force Court constituted to try the petitioner was without jurisdiction, the counsel further submits that trial of the petitioner for an offence under the NDPS Act without obtaining the sanction of the central Government would be a nullity and without jurisdiction. Submission also is that the offence alleged against the petitioner being of a concurrent jurisdiction by the General Force Court as well as by ordinary Criminal Court, the choice of forum under Section 80 was required to be made in the light of provisions contained in Rules 41 and 42 of the BSF Rules. Plea is that the discretion about the choice of Forum as given in Section 80 of the BSF Act is either judicial discretion or a administrative one. In both events, this will be open to a judicial scrutiny. The counsel then contends that consideration, which would weigh to exercise this choice, is regulated by the provisions of Rules 41 and 42 and contend that the choice in this case was either not exercised or it was not done legally, properly and thus not sustainable. Mr.Rathee, however, would join serious issues in regard to submissions so made. He would first contend that the petitioner Criminal Writ Petition No. 3 of 1997 9 was tried for offences, which are created as offences under the BSF Act and trial of the civilian person named in the charges would be immaterial. According to the counsel, the trial of the smuggler was not an essential condition to put the petitioner to trial, which was an independent and concerning the allegation which was made against him and proved by cogent and reliable evidence. The counsel further contends that there was no necessity to obtain sanction of the Central Government for trying the petitioner for the offences alleged against him. The power to convene a General Force Court is given under the BSF Act, which in itself is a piece of legislation empowering various officers to convene or confirm the Force Court proceedings. In this background, the power of convening Security Force Court for an offence under the BSF Act would not need a sanction of the Central Government as the allegations for which the petitioner was tried are offences under the BSF Act and strictly not under the NDPS Act. While concluding his submission, the counsel contends that the charge preferred against the petitioner was for an offence under Section 46, which creates a civil offence under the BSF Act. To try an offence under the BSF Act, there would not be any necessity or need to obtain the sanction of the Central Government even if that may be a requirement under the provisions of the NDPS Act. Counsel would contest the submission in regard to exercise of choice of forum but at the same time would draw my attention to the order passed by a Division Bench of this Court in an earlier Civil Writ Petition No.16008 of 1995 (B.S.Hari Vs. Union of India and others) decided on 18.1.1996, where this challenge raised by the Criminal Writ Petition No. 3 of 1997 10 petitioner was negated. He would, thus, contend that having failed in challenge and allowing it to acquire finality, the petitioner can not now he heard to raise the same challenge again through the present writ petition. The challenge to this an extent, as per Mr.Rathee, would be barred on the principle of res-judicata. As per the counsel the decision dismissing this plea of the petitioner on merits would bar this Court to consider the plea once over again to come to any different conclusion. DISCUSSION AND DECISION:- The submissions raised by learned counsel for the petitioner in regard to choice of Forum in terms of Section 80 read with Rules 41 and 42 of the BSF Rules, in my view, may not require to be gone into as the same was raised by the petitioner in earlier Civil writ petition No.16008 of 1995 and was rejected. The counsel appearing for Union of India is justified in saying that the petitioner can not be allowed to re-agitate this plea, which would be barred by principle of res-judicata. I have perused the decision of this Court dated 18.1.1996. This plea about the choice of Forum, as raised by counsel for the petitioner, was considered and rejected by this Court through the order referred to above. The principle of res-judicata, thus, would stand in the way of the petitioner to agitate the same plea once over again through the present writ petition. Otherwise, it can not be denied that word used in Section 80 of the Act is `discretion' and it can not be taken as subjective satisfaction. `Discretion' when given under any provision of an enactment would generally be a judicial discretion and, thus, required to be exercised judicially. In any case, `judicial discretion' can not be Criminal Writ Petition No. 3 of 1997 11 exercised arbitrarily. Even if it is assumed that the discretion under the Act is administrative `discretion', then also it is to be exercised properly and not arbitrarily. How this discretion, be it `judicial' or `administrative' is to be exercised is given in Rules 41 and 42 of the Rules and it is to be exercised in the light of principles as given in the Rules. In this regard, the provisions of BSF Act are an improvement over the provisions of Army Act from where this Act has almost been borrowed. There are no guidelines or principles provided under the Army Act, 1950 as to which case is to be claimed for trial by Court Martial in exercise of this `discretion' (under Section 125 of the Army Act, which paramecia to Section 80 of BSF Act), or is to be left for trial by ordinary criminal Court, whereas such principles are provided under Rules 41 and 42 of BSF Rules. It would, thus, be open for a writ court to examine if this discretion was correctly and judicially exercised, be it an administratively or judicial discretion. Such discretion, whatever be its nature, could not be arbitrarily exercised. I need not say anything more as in this case, the challenge on this ground has already been rejected and can not be examined afresh. It may also be noticed that in addition to charges under Section 46 of the BSF Act, the petitioner was also tried for an offence under Section 40 of the Act which is not an offence concurrently triable by both Courts. Conviction of the petitioner under this Section, thus, would not suffer from any such defect, in regard to choice of forum and this is an added reason for me not to go into this aspect any further. Mr.Sanga would then contend that civilian smugglers with Criminal Writ Petition No. 3 of 1997 12 whom the petitioner had allegedly connived were not tried and so the petitioner could not be punished for having connived or conspired with the smugglers. The counsel seems to contend that unless it was established that the persons named in the charge were found to be smugglers or were found indulging in smuggling, the petitioner could not be legally found guilty of having connived in smuggling. The gravamen of the allegation of second charge preferred against the petitioner under Section 46 of the Act is that the petitioner had permitted Lakhwinder Singh and Surjit Singh to take out 44 Jerkins of 40 liters each of Acetic Anyhydride. Strictly speaking, the petitioner was not accused of conspiring or conniving with Lakhwinder Singh or Surjit Singh. It is a positive act of permission which was alleged against him and essential factual ingredient required to be established was the act of allowing or permitting them and not of any passive or active conniving or conspiracy in smuggling. The prosecution, in my view, could succeed, by proving through direct evidence or by circumstantial evidence that the petitioner had permitted these persons to take out these Jericans through the border fencing from India to Pakistan. Strictly speaking there is no allegation of even smuggling alleged. In this context, the charge preferred against the petitioner may be seen. The petitioner was charged for an offence under Section 46 for knowingly permitting an enclosure to be used by another person over which he had a control for commission of an offence under the NDPS Act, which in itself is an offence under Section 25 of the NDPS Act. Section 25 of the NDPS Act punishes those acts on Criminal Writ Petition No. 3 of 1997 13 the part of owner or occupier or a person having control over house, room or enclosure, space place, animal or conveyance and who knowingly permits it to be used for commission of an offence by other person for committing an offence under the provisions of the NDPS Act. Thus, the prosecution was only required to establish that the petitioner, being a Commandant, was having control over the enclosure etc. and had knowingly permitted its use for commission of an offence under the NDPS Act by said Lakhwinder Singh and Surjit Singh. Neither there was any need for the prosecution to establish that there was smuggling or that the petitioner had connived with any smuggler to bring home the offence alleged against him. What all was required to be shown was that a space or enclosure was permitted to be used for a commission of an offence under the NDPS Act by any person and this was knowingly done. The submission that the petitioner could not have been found guilty of the charge, unless Lakhwinder Singh and Surjit Singh were charged and found guilty of smuggling, thus, appears misconceived appreciation of the factual and legal position as urged without appreciating the averment made in the allegation and the nature of charge preferred against the petitioner. The finding by a Security Force Court on the basis of appreciation of evidence would be beyond the purview of a writ Court as has been consistently held by various Courts including the Hon'ble Supreme Court. Sufficiency of evidence, thus, would not be within the purview of this court. The offence alleged did not require the prosecution to prove the smuggling on the part of the civilians mentioned in the charge, as is urged and, thus, this ground, as raised by the counsel, deserves to be rejected. Criminal Writ Petition No. 3 of 1997 14 I am equally unimpressed with the submission made that the sanction of the Central Government was necessary for trying the petitioner for the offences, when he was being tried for an offence under the NDPS Act. This argument is made on the support of Section 59 of the NDPS Act, which makes a provision for failure of Officer in duty or his connivance at the contravention of the provisions of this Act. This Section provides that any Officer on whom any duty has been imposed by or under this Act and who ceases or refuses to perform or withdraws himself from duty can be punished. As per Section 59(3) of the NDPS Act, no Court can take cognizance of any offence under Section 59(1) or sub-Section (2) except on a complaint in writing made with the previous sanction of the Central Government or as the case may be by the State Government. This argument as raised is fallacious. The petitioner was not any such Officer on whom any duty was imposed by or under the NDPS Act, which he had failed to perform or had refused to perform. Simply stated, the allegations made against the petitioner were under Section 46 of the BSF Act and under Section 40 of the said Act. Section 59 of the NDPS Act is creating a separate offence for which the petitioner was never charged. The question of taking permission of the Central Government, thus, would have no relevance for trying