Delhi High Court

L/Nk Harpal Singh vs Uoi & Ors. on 22 October, 2009

Author: Pradeep Nandrajog

i.4

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


%                             Date of Decision : October 22, 2009


+                        W.P.(C) 359/2009

      L/NK HARPAL SINGH                ..... Petitioner
           Through: Mr.Vineet Bhagat, Advocate.

                    versus

      UOI & ORS.                  ..... Respondent
           Through:      Mr.Yadunath Singh, Dy. Commandant,
                         B.S.F.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

      1.     Whether the Reporters of local papers may be
             allowed to see the judgment?

      2.     To be referred to the Reporter or not?       No


      3.     Whether the judgment should be reported in
             the Digest?                            No

PRADEEP NANDRAJOG, J. (Oral)

1. Rule DB.

2. Heard for final disposal.

3. The petitioner and co-accused Const.Ravi Chander

were charge-sheeted as under:-

"The accused No.86003672 L/NK Harpal Singh (Accused No.1) and No.89001320 Const.Ravi Chander Singh (Accused No.2) of 195 BN BSF are charged with:-

(First Charge) BSF ACT Section 40 : AN OMISSION PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE. In that they, together at the area of Naka No.01 of BOP Sahapur on night intervening 30/31 Dec' 2003 at about 1815 hours while doing Patrolling cum Ambush duty improperly omitted to exercise due care and caution over their area of responsibility as a result smugglers smuggle 04 Bags of Garlic from Bangladesh to India.

(Second Charge) BSF ACT Section 40 : AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE:

In that they, together at Naka No.01 of BOP Sahapur on 30.12.2003 at about 2120 hrs manhandled one civilian namely Jhantu Mondal S/o Jhorukant Mondal R/o Village Sahapur.

(Third charge) BSF ACT Section 26 : INTOXICATION:

In that they, together at Naka No.01 of BOP Sahapur on night intervening 30/31 Dec' 2003 at about 2145 hrs' found in state of intoxication.

(Fourth Charge) (Accused No.01 only) BSF ACT Section 40: AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE:

In that he, at BOP Sahapur between 30/31 Dec'2003 and 5/6 Jan'2004 omitted to report about breaching of cocking handle of SLR Butt No.47 body No.EC-2839 issued to him, which was detected during quarterly inspection by Unit Armourer on 5/6 Jan'2004.

(Fifth Charge) (Accused No.02 only) BSF ACT Section 40: AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE:

In that he, at BOP Sahapur on 30th Dec'2003 at about 2130 hrs. improperly and without authority fired 2

rds. from SLR of No.86003672 L/NK Harpal Singh Butt No.47, body No.EC-2839"

4. It is apparent that charge No.1 to charge No.3 was

common against the petitioner and the co-accused. Charge

No.4 was framed only against the petitioner. Charge No.5 was

only against the co-accused.

5. Evidence was recorded, in which opportunity of

cross-examination of witnesses was given to both the accused.

The final verdict delivered at the Summary Security Force

Court Proceedings is of guilt. A resultant order of dismissal

from service has been passed against the petitioner.

6. It is urged by learned counsel for the petitioner that

the findings returned at the Summary Security Force Court

Proceedings are vitiated, in that, the finding is based on no

evidence. The second contention urged is that the finding of

guilt is by a non-speaking order. Last grievance made is that

the rejection of the statutory petition, vide order dated

20.2.2007, on ground of delay, is vitiated in law, for the

reason, the petitioner was prevented from taking resort to the

statutory petition within time because all documents were not

supplied to him within the time prescribed.

7. Pertaining to the first plea urged i.e. that the finding

of guilt is returned on no evidence, suffice would it be for us to

record that the testimony of PW-1 SI Gnana Dass, who was

performing the duties of Officiating Company Commander on

30.12.2003, establishes charge No.1 and charge No.4.

8. We have perused the testimony of PW-1 in which he

has clearly established the fact that an ambush took place at a

spot 15 yards from the culvert near Indo-Bangladesh Border.

We note that this distance has been extracted in the cross-

examination of the witness by the petitioner. The testimony of

the witness clearly brings out the fact that the place where the

ambush took place was near the place where the petitioner

and the co-accused were stationed for duty to guard the

border. The testimony of this witness also establishes the

smuggling of garlic from Bangladesh to India. His testimony

also establishes that after the ambush, when he conducted

spot proceedings to verify as to how the intruders could enter

the territory of India, he found, on checking, that the 7.62 mm

SLR of the petitioner had the cocking handle assembly of the

rifle missing which was never reported.

9. That the petitioner and his co-accused were drunk

on the date and at the place has been established from the

testimony of PW-5 and PW-6 who have clearly deposed that

the petitioner and his co-accused were busy troubling one

Jantu Mondal and under threat of the strength of they

being armed, compelled him to purchase liquor and cigarettes.

Both of them sat outside the hut of the two witnesses and

started consuming liquor. Not only that, in an act of

perversion, both of them made PW-6 sit naked in front

of them while they were consuming liquor.

10. It is apparent that the testimony of the said two

witnesses establishes charge No.2 and 3.

11. The contention of learned counsel for the petitioner

that no test was conducted to determine whether there was

alcohol in the blood of the petitioner is neither here nor there

in view of the eye-witness account given by PW-5 and PW-6.

12. An attempt has been made to make us go through

the testimony of PW-2 and PW-3 to point out what learned

counsel for the petitioner urges to be major contradictions.

13. It is settled law that in a judicial review

proceedings, the Court cannot re-appreciate evidence as is

done in a Court of Appeal. As long as there is some evidence,

adequacy thereof would not be gone into in writ jurisdiction.

14. Having perused the record we are satisfied that

there is sufficient evidence on record wherefrom the guilt of

the petitioner can be inferred.

15. No Rule of Law has been cited before us requiring

the verdict at a Summary Security Court Proceedings to be

akin to a decision at a criminal trial.

16. The plea that some of the documents were supplied

late and hence the statutory petition was filed belatedly and

hence could not be dismissed on account of being time barred,

has to be rejected for the reason, the authority deciding the

statutory petition has dealt with the merits of the pleas urged

in the statutory petition and after rejecting the same has, by

way of a footnote, added further that even otherwise the

petition filed after one year and ten months was grossly

belated.

17. As regards the order of dismissal from service, we

may note that not only are the four charges which were

proved against the petitioner serious enough warranting a

dismissal from service, but even previous service record of the

petitioner is not very bright.

18. Preceding the instant indictment the petitioner has

five red ink entries pertaining to various acts of omission and

commission in which penalties as below-noted were inducted.

The same are:-

"(i) Awarded severely reprimand on 16.1.98 by Comdt. 195 Bn BSF under Section 25 of BSF Act for using Criminal Force for quarrel and beating a constable.

(ii) Awarded reprimand on 3.12.2000 by Comdt. 195 Bn BSF under Section 19(b) of BSF Act for overstaying from leave.

(iii) Awarded severely reprimand on 28.12.02 by Comdt. 195 Bn BSF under Section 19(a) of BSF Act for absenting himself without leave.

(iv) Awarded severely reprimand on 25.3.2003 by Comdt. 195 Bn BSF under Section 19(g) of BSF Act for absenting himself from post without permission of superior and consumed country liquor.