Delhi High Court
Bhagirath Choudhary vs Border Security Force on 28 October, 2009
Author: Pradeep Nandrajog
i.5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 28th October, 2009
+ W.P.(C) 5989/2008
BHAGIRATH CHOUDHARY ..... Petitioner
Through : Mr. Sanjeev Kumar, Advocate
versus
BORDER SECURITY FORCE
THROUGH DIRECTOR GENERAL ..... Respondent
Through : Mr. Yadunath Singh,
Dy. Commandant.
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 Reporter or not? No.
3. Whether the judgment should be reported in the Digest? No.
PRADEEP NANDRAJOG, J. (Oral)
1. Rule DB.
2. Rejoinder affidavit stated to have been filed by the
petitioner yesterday is not on record, but copy thereof has been
handed over by learned counsel in the court. The same has
been considered.
3. Heard for disposal.
4. The petitioner was employed as a Constable under BSF on
22.02.1971 and earned promotion to the post of Lance Naik. He
earned further promotions and ultimately became a Sub-
Inspector.
5. During his service under BSF, he was awarded three
punishments on 30.05.1980, 06.01.1989 and 25.07.1994.
Pursuant to the first punishment he was imprisoned for 10 days.
The second punishment was a severe reprimand and the last
punishment was a reprimand.
6. A fourth incident took place on 29.12.2005, at about 19.30
Hrs., when the petitioner was performing duty of a Platoon
Commander at BSF Fence, Gate No.16, at the Indo-Bangladesh
Border. The Commandant noted hoof marks of cattle. It was
detected that a large number of cattles were permitted to
illegally cross-over from India to Bangladesh.
7. As per record of the respondents produced in court today
for our perusal, when confronted with the tainted evidence at
the site, the petitioner made a confessional statement admitting
that he permitted 130 cattle to cross-over from India to
Bangladesh.
8. Instances of smuggling at the Indo-Bangladesh Border,
having assumed alarming proportions, the Commandant
reported the matter to the higher authorities and under Rule
45(b) of the BSF Rules, 1969 a preliminary hearing was
conducted in which evidence was recorded and reduced in the
form of a summary of record of evidence.
9. The said proceedings indicted the petitioner, resulting in
action being initiated under Rule 59 of the BSF Rules, 1969 i.e.
the petitioner was directed to be tried by a General Security
Force Court.
10. In the proceedings conducted before the General Security
Force Court, the procedure of law was followed, a charge was
served upon the petitioner and he was granted full opportunity
to participate in the proceedings.
11. We note that in the writ petition no prayer is made
pertaining to any alleged taint in the proceedings conducted by
the General Security Force Court.
12. The findings resulted in the guilt of the petitioner being
established.
13. BSF examined 10 witnesses. The petitioner did not lead
any evidence in defence.
14. An order dated 22.01.2008 was passed awarding six
months' RI to the petitioner as also his being dismissed from
service.
15. Statutory remedies were availed by the petitioner with
reference to the order dated 22.01.2008 which resulted in the
authorities rejecting the petitions filed by the petitioner and
hence the instant writ petition.
16. A single point has been urged at the hearing of the writ
petition; being that, the order dated 22.01.2008 being a
composite order of imposing six months' RI and punishment of
dismissal from service is contrary to law.
17. Section 40 of the BSF Act, 1968 reads as under:-
"40. Any person subject to this Act who is guilty
of any act or omission which, though not
specified in this Act, is prejudicial to good order
and discipline of the Force shall, on conviction
by a Security Force Court, be liable to suffer
imprisonment for a term which may extend to
seven years or such less punishment as is in
this Act mentioned."
18. Section 48 of the BSF Act, 1968 reads as under:-
"48.(1) Punishments may be inflicted in respect
of offences committed by persons subject to
this Act and convicted by Security Force Courts
according to the scale following, that is to say:-
a) death;
b) imprisonment which may be for the term of life
or any other lesser term but excluding
imprisonment for a term not exceeding three
months in Force custody,
c) dismissal from the service;
d) imprisonment for a term not exceeding three
months in Force custody;
e) reduction to the ranks or to a lower rank or
grade or place in this list of their rank in the
case of a under-officer;
f) forfeiture of seniority of rank and forfeiture of
all or any part of the service for the purpose of
promotion;
g) forfeiture of service for the purpose of increased
pay, pension or any other prescribed purpose;
h) fine, in respect of civil offences;
i) severe reprimand or reprimand except in the
case of persons below the rank of an under
officer;
j) forfeiture of pay and allowances for a period not
exceeding three months for an offence
committed on active duty;
k) forfeiture in the case of person sentenced to
dismissal from the service of all arrears of pay
and allowances and other public money due to
him at the time of such dismissal;
l) stoppage of pay and allowance until any proved
loss or damage occasioned by the offence for
which he is convicted is made good.
(2) Each of the punishments specified in sub-
section (1) shall be deemed to be inferior in
degree to every punishment preceding it in the
above scale."
19. Suffice would it be to note that under Section 48(1)(c) of
the Act punishment which may be inflicted in respect of an
offence committed by a person subject to the Act upon being
convicted at a General Security Force Court includes the penalty
of dismissal from service.
20. Section 50 of the BSF Act, 1968 reads as under:-
"A sentence of a Security Force Court may
award in addition to, or without any one other
punishment, the punishment specified in clause
(c) of sub-Section (1) of section 48, and any one
or more of the punishments specified in clauses
(e) to (1) (both inclusive) of that sub-section."
21. It is apparent that by virtue of Section 50 of the Act, a
sentence of a Security Force Court may award, in addition to,
the punishment contemplated in clause (c) of sub-section (1) of
section 48, and anyone or more of the punishments specified
under the law.
22. Thus, we find no infirmity in the action of the respondent.
23. Before parting we once again note that no challenge has
been made to the manner in which proceedings were conducted
before the General Security Force Court and the verdict of the
guilt returned at the said proceedings.
24. The writ petition is dismissed.
25. No costs.
26. Original record which has been produced for our perusal
has been returned.
PRADEEP NANDRAJOG, J
SURESH KAIT, J
OCTOBER 28, 2009
'nks'
