K.P. Sharma vs Union Of India
1993 Latest Caselaw 33 Del

ORDER SECURITY FORCE ACT - Section 105--petitioner charged with allegation of bribing his superior-acquitted in Court Marshall-Amount recovered from petitioner can not be deposited in treasury-directed to refund the amount to the petitioner.

JUDGMENT

B.N. Kirpal, J.

(1) The petitioner who is serving in the B.S.F. was proceeded against on an allegation that he had tried to bribe the D.I.G. (BSF) at Hazari Bagh and a sum of Rs. 16,031.20 Along with other items was recovered from him after he came out of the house of the said D.I.G. Court Martial proceedings were held and on 26th April, 1990 the Court acquitted the petitioner of the charge.

(2) The Confirming Authority did not agree with the findings and he directed the Court to re-assemble for considering the revision of the finding. The Court re-assembled and on 11th July, 1990 it decided not to revise the finding of acquittal of the petitioner. In December, 1990 the Confirming Authority did not agree with this finding.

(3) On 27/2/1992 an order was passed under Section 105 of the Bsf Act to the effect that the sum of Rs. 16031.20 should be deposited in the Government treasury. The contention of petitioner is that an order like this cannot be passed under Section 105. Section 105 contemplates an order being passed for the disposal of property regarding which offence is committed. In view of the finding of acquittal by the Court, even if the said finding was not confirmed by the Confirming Authority, the provisions of Section 105 of the said Act are not attracted. Section 105 applies and would entitle confiscation of money, in a case like the present, only if the finding was that the petitioner was guilty of the offence. The allegation against the petitioner was that it is he who took the money to the house of D.I.G. and it is that money which was recovered from him after became out of the house. This is not a money which was stolen by him from the DIG's house and this is not the money in respect of which it has been found that any offence has been committed. The necessary ingredients of Section 105 of Bsf Act being absent the question of this amount being deposited in the Government treasury could not arise.

(4) We, therefore, issue a writ of mandamus quashing the impugned order dated 27/2/1992 passed under Section 105 of the Act and further direct the respondents to refund the said money to the petitioner within a period of two months from today.

(5) There will be no order as to costs.