Delhi High Court
Ex.Const.Santosh Kumar vs Uoi & Ors. on 26 April, 2011
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: April 05, 2011
Judgment Delivered on: April 26, 2011
+ WP(C) 1765/2010
EX CONST. SANTOSH KUMAR ..... Petitioner
Through: Mr.Anil Gautam, Advocate
versus
UOI & ORS. .....Respondents
Through: Mr.Rajeev Saxena, Mr.Jayendra and
Mr.D.K.Pradhan, Advocates
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?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. The petitioner was enrolled with the Border Security
Force as a constable in the year 1994 and in the year 2008, he
was attached to the „E‟ Coy of 172nd Bn. BSF which was
deployed at Border Outpost Khutadah at the Indo-Bangladesh
Border. In the month of May, a platoon of the „E‟ Coy, to which
the petitioner was attached, was deployed at BOP Taltoli. It
was complained against the petitioner that on 09.05.2008,
while performing duties at BOP Taltoli the petitioner gave safe
passage to smugglers to carry 18 bags of Potash and 1 bag of
Salt into Bangladesh and used insubordinate and abusive
language against his superior officer, Asst.Comdt.Sunil Kumar.
While the said complaint was being considered by the senior
officers at the Head Quarters of 172nd Bn., another complaint
was made against the petitioner stating that on 25.05.2008 he
became violent and used threatening language against
Asst.Comdt.Sunil Kumar.
2. Taking cognizance of the two offence reports and
proceeding to comply with Rule 45 of the BSF Rules 1969 i.e.
conduct a hearing of the charge, in the absence of the
Commandant, the Officiating Commandant of the Unit
conducted the said proceeding at Aradhpur, Malda and after
examining SI Ramji Lal Raigar, Asst.Commdt.Chottu Ram,
Asst.Commdt.Sunil Kumar, HC Bijender Prashad and
Ct.Gurupada Biswas and hearing the petitioner ordered that
„Record of Evidence to be prepared by
Asst.Comdt.M.S.Khatana‟ and for the purposes of preparation
of Record of Evidence drew up a charge sheet containing three
charges as under:-
"CHARGE SHEET -I
Charge against No.940025646 Const.SANTOSH KUMAR of E-
Coy, 172 Bn.BSF.
BSF ACT 1968 Charge-I
U/S-40 AN ACT PREJUDICIAL TO GOOD
ORDER AND DISCIPLINE OF
THE FORCE
in that he
on 09 May 2008 at about 1130
hrs, while performing duty at
main gate of BOP Taltoli of „E‟
Coy 172 Bn.BSF from 0600 hrs
to 1200 hrs, gave safe
passage to smugglers, to
smuggle from India to
Bangladesh through Gate
No.08 of BOP Taltoli 16 Nos
sealed bags of Potash
weighing 800 Kgs, 02 Nos
opened bags of Potash
weighing 40 Kgs & 01 bag of
salt.
BSF ACT 1968 Charge-II
U/S-20(c) USING INSUBORDINATE
LANGUAGE TO HIS SUPERIOR
OFFICER
in that he, at 1230 hrs on 09
May, 2008 used the following
insubordinate language to Shri
Sunil Kumar, AC by saying
"MAIRE KILAPH LIKHO, BSF
MEN 89 DINO SE UPAR SAJA
NAHI HEA, MEIN BHI LIKHUGA,
MANAVADHIKAR AAYOG MEIN
JAUNGA, ABHI MATRI KA
PHONE AAEGA, AAP MERA
KHUCH NAHI BIGAD PAOGE.
ISHSE PAHLE BHI MENE KIYA
HEY, MUJHE GOLE MAR DO,
MUJHE NOUKARI SE NIKAR DO,
TUMSE JO HO SAKTA HE MERA
BIGAD LENA." Or words to that
effect.
BSF ACT 1968 Charge-III
U/S-20(b) USING THREATENING
LANGUAGE TO HIS SUPERIOR
OFFICER
in that he,
at 1150 hrs on 25 May 2008
became violent and used
threatening and abusive
language near Jawans Barrack,
BOP Khutadaha, „E‟ Coy 172
Bn BSF, against Shri Sunil
Kumar, AC saying "Sunil
Kumar, AC ko kat dunga jaise
Comdt ko kata hain. Maa
Bahan thok dunga" or words
to that effect.
Place: Aradhpur (Malda)
Dated: 02 June 2008"
3. Asst.Comdt.M.S.Khatana completed the proceedings
pertaining to the Record of Evidence and after noting the
testimony of the witnesses submitted the same to the
Officiating Commandant who proceeded under Rule 51 and
after considering the Record of Evidence decided to try the
petitioner by a Summary Security Force Court.
4. We note that there is a dispute regarding what happened
after the Record of Evidence was prepared. Whereas the
petitioner alleges that no decision was taken by the Officiating
Commandant thereby implying that the petitioner was
exonerated of the charges, the respondents urge that the
Officiating Commandant had decided to convene a SSFC but
the trial could not commence on the date fixed due to the Unit
being shifted from Aradhpur, Malda (West Bengal) to Rokhia,
Tripura and that a further delay was caused in commencing
the trial due to unavailability of various Prosecution Witnesses
who were deployed at Jammu and Kashmir for maintaining
public order at the assembly elections. Thus it was urged by
the respondents that for reasons beyond their control the trial
got delayed, which should not mean to imply that the
petitioner was exonerated from the charges.
5. Meanwhile, another incident took place on 13.11.2008
when it was reported to the Commandant that the petitioner
had left the post where he was detailed to perform duties and
was found drunk at a deserted building of a Panchayat School,
Rokhia and when attempted to be brought back to the Unit the
petitioner assaulted the BSF personnel in respect of which
incident the petitioner claims that he was beaten by HC Dinesh
Singh because of which he had to be hospitalized and the
respondents counter-urge that the petitioner got himself
admitted in TMC Agartala on 16.11.2008 till 25.11.2008 on the
pretext of chest pain to avoid disciplinary action.
6. Pertaining to the incident dated 13.11.2008, taking
cognizance of the offence report, the Officiating Commandant
conducted proceedings under Rule 45 of the BSF Act i.e.
proceedings relating to the hearing of the charge and
examined Ct.K.Ramana, SI Karan Singh, HC K.Pradeep Kumar,
L/Nk Vijay Singh and HC Dinesh Singh and recorded the
petitioner‟s statement, in verbatim as under:-
STATEMENT OF NO.940025646 CONST.SANTOSH KUMAR „E‟
COY, 172, BN. BSF, THE ACCUSED IN DEFENCE
"Sir, Maire Aurat Ghar Sai Bhag Gayihain. Main Salbhar sain
chuthi nahi katan huin. Tension Main Mene Desi Sarab 09
Glass Pi Liyah. Pikar Mujhe Nasa Jada Ho Gyan aur Main Gali
Dene Laga Ki sala Mujhko chuti Nahin Deta Hain, aisa HC
K.Pradeep Kumar ko bolan aur bistar par saun gayan. Main
Jyada Naishe Main Tha. BHM Nai Shirt Pakad kar Jhanjor kar
uthaya. Phir Main BHM Major ko Gali Bolan. BHM Nai Bahar
Jakar Ground Main Lita Kar Lat Sai Bahut Mara. 10 Din Hospital
(TMC) Main Admit Raha Hoon."
7. Considering the statements of the witnesses and the
defence statement made by the petitioner the Officiating
Commandant ordered for a Record of Evidence to be prepared
by Deputy Commandant Rajesh Verma and drew up the
charge sheet dated 26.11.2008 levying 4 charges upon the
petitioner as under:-
"CHARGE SHEET-2
The accused No.940025646 Const.SANTOSH KUMAR of E-Coy,
172 Bn.BSF. is charged with:-
BSF ACT 1968 Ist Charge
U/S-20(a) USING CRIMINAL FORCE TO
HIS SUPERIOR OFFICER
in that he
at about 2220 hrs on 13.11.08
used criminal force against
No.85254486 HC/BHM Dinesh
Singh enroute when being
brought from Deserted
Panchayat School, Rokhia to
HQr, 172 Bn.BSF, Rokhia.
BSF ACT 1968 Charge-II
U/S-40 AN ACT PREJUDICIAL TO GOOD
ORDER AND DISCIPLINE OF
THE FORCE
in that he,
at 2230 hrs on 13.11.08
became violent and used
abusive language in Deserted
Panchayat School, Rokhia and
near Quarter Guard Bn HQ
Location against Senior
Officers, Comdt., Offg. Comdr,
and BHM of the Unit staying
"MADARCHOD, BHENCHOD,
TUM MERA KUCH NEHEN KAR
SAKTE, MEIN TUME
BATAUANGA MERE TAKAT
KEYA HAI. MERA MAMA
SANSAD HAI, MAIN TUMHEN
PATNA HIGH COURT TAK KEY
JAUNGA" or the words to that
effect.
BSF ACT 1968 Charge-III
U/S-19(a) ABSENTING HIMSELF WITHOUT
LEAVE
in that he,
at Deserted Panchayat School
Rokhia Tripura (W), (line area
of Training Coy) on 13 Nov
2008 absented himself without
leave from 1400 hrs till 2130
hrs.
(Total period of absence 0730
hrs)
BSF ACT 1968 Charge-IV
U/S-26 INTOXICATION
in that he
at Deserted Panchayat School
Rokhia Tripura (W) (line area
of Training Coy) on 13 Nov
2008 at 2215 hrs found in
state of intoxication.
Place: Rokhia, TRA (W)
Dated: 26 Nov, 2008"
8. Dy.Comdt.Rajesh Verma prepared the Record of
Evidence on 10.12.2008. 9 witnesses were examined in
relation to the 4 charges. As per the record, petitioner declined
to cross-examine the witnesses or make a defence statement
and even refused to sign the proceedings of the Record of
Evidence.
9. Considering the Record of Evidence and proceeding
under Rule 51 the Officiating Commandant ordered
petitioner‟s trial at a Summary Security Force Court.
10. Needless to state a joint trial pertaining to the charge
sheet dated 2.6.2008 and 26.11.2008 was held. It may be
amplified that though factually one, conceptually two trials
were conducted evidenced by the fact that part B of the trial
consists of evidence relating to the charge sheet dated
2.6.2008 and part B-1 relates to the charge sheet dated
26.11.2008.
11. Upon arraignment pertaining to the 1st charge sheet, the
petitioner pleaded „Not Guilty‟ to the 3 charges. Thus the
court proceeded under Rule 145 and examined the
prosecution witnesses being 10 in number all of whom were
permitted to be cross-examined by the petitioner and the
petitioner availed the said opportunity to cross-examine such
witnesses as he desired to cross-examine.
12. SI Ramjee Lal Raigar PW-1, deposed that on 09.05.2008
Ct.S.Kumaresan, Ct.Mahesh Kadui and the petitioner who was
functioning as the Party Commander, were detailed to perform
outpost duty at OP point No.2, BOP Taltoli from 06:00 hours to
12:00 hours. He produced the Outpost Register, GD Register
and OP Log Book of BOP Taltoli which contained entries of the
afore-stated facts. He further deposed that OP point No.2 is
situated in front of IBBF Gate No.8 and the entry and exit
through the said Gate is regulated by personnel on duty at OP
point No.2. At about 11:30 hours he, being the Post
Commander of BOP Taltoli, went to check the working of the
parties performing duties at the various outpost points and
when he approached OP point No.2, he saw a local engine
fitted Van (Burburi) and 2 bicycles loaded with bags moving
towards Bangladesh after crossing the IBBF Gate No.8. He
intercepted the Van and the bicycles at a distance of 50 yards
from the IBBF Gate and on seeing him, 4-5 persons abandoned
the van and the bicycles and fled towards Bangladesh. He then
called Ct.Kalyan Dolui who was passing by and with his help
seized 16 sealed and 2 unsealed bags of Potash and 1 bag of
salt along with the van and the 2 bicycles. Thereafter he went
to the IBBF Gate No.8 where he found petitioner sitting at the
OP point No.2. On questioning/enquiring about the vehicles
being allowed to pass through the gate, the petitioner told him
that the petitioner had permitted the civilians to carry only 5
bags of Potash fertilizers and that the civilians had shown the
petitioner a permission slip on the basis of which he had
permitted them to enter. He asked the petitioner to produce
the permission slip and show him the entries made in the
in/out register of Gate No.8 showing permission given to the
civilians to carry 5 bags of Potash and the petitioner neither
produced any permission slip nor showed any entries in the
in/out register. He then summoned Ct.S.Kumaresan i.e. the
other member of the OP Party who informed him that the
petitioner had told him to cover the AOR of a culvert beyond
the bend of the IBB Road and told him that due to the same
i.e. the bend he i.e. Ct.S.Kumaresan could not see the gate.
He further deposed that after making enquiries he reported
the matter to Asst.Comdt.Sunil Kumar who directed the
petitioner and Ct.S.Kumaresan to go to BOP Taltoli. At the BOP
Asst.Comdt.Sunil Kumar enquired from the petitioner why did
he permit the items to pass through the IBBF gate and instead
of replying to the questions the petitioner started shouting at
the top of his voice and said in an arrogant manner: „Aap mere
khilaf likho , mein bhi aapke khilaf likhunga. Manav Adhikar
Ayog mein jaunga. Abhim Mantriji ka phone ayega aur tum
mera kutch nahin bigar paoge‟. The petitioner became violent
and threw his cap and belt towards the fence and said: „mujhe
naukri se nikaaldo, mujhe golli maar do, han maine pahele bhi
kiya hai, aap mera kutchh nahin bigar sakte.‟ The petitioner
was then asked to leave. He deposed that Ct.Gurupada
Biswas had witnessed the incident since he was performing
sentry duty near the office of the Asst.Comdt.Sunil Kumar.
13. On being cross-examined SI Ramji Lal Raigar stated that
petitioner had directed Ct.S.Kumaresan as told by
Ct.S.Kumaresan to him to cover the other side of AOR beyond
the bend on the IBB Road.
14. On being examined by the Court, SI Ramji Lal Raigar
stated that the IBBF Gate No.8 remained open from 06:00
hours to 18:00 hours to facilitate movement of villagers of
village Taltoli which is located ahead of IBBF towards
Bangladesh and other civilians having their fields near the
border. That an in/out register is maintained at every IBBF
Gate to record entries of movement of civilians and details of
items carried ahead of IBBF Gate. Civilians are not permitted
to carry items in sealed bags without the permission of Post
Commander and only the required quantity of items/potash
which is necessary for their fields is allowed to be carried
beyond the gates. He further stated that this procedure was
incorporated to provide a check on the smuggling of Potash
and other items into Bangladesh.
15. Ct.Kalyan Dolui PW-2 stated that on 09.05.2008 while he
was proceeding towards the local market at village Taltoli he
saw a few civilians run towards Bangladesh and that at the
same time SI Ramjee Lal Raigar (PW-1) called out to him while
standing near a local van. That from the spot, 16 sealed bags
and 2 unsealed bags of Potash and 1 bag of Salt along with the
van and 1 bicycle was seized and brought to BOP Taltoli. That
thereafter the Asst.Comdt.Sunil Kumar took him and PW-1 to
the IBBF Gate No.8 where enquiries were made from the
petitioner who told the Asst. Comdt. that he i.e. the petitioner
had permitted only 5 bags of Potash to be carried beyond the
gate.
16. Ct.S.Kumaresan PW-3 deposed that the petitioner had
directed him to cover the area towards the culvert which was
beyond a bend on the IBB road, because of which he could not
see the IBBF Gate No.8 and had thus not witnessed the
civilians being allowed to proceed through the gate. He
deposed that the petitioner had also directed Ct.Mahesh Kadui,
the third member of the party to perform duty towards IBBF
Gate no. 9 which was about 1 km away from the OP point no.2.
That at about 11:30 hours while proceeding towards IBBF Gate
No.8 he saw a local van loaded with items moving through the
gate towards the Indo-Bangladesh Border. That on reaching
the OP point No.2 he was informed by the petitioner that the
petitioner had permitted the civilians to pass through the gate
on the basis of a permission slip given by them. In meantime,
SI Ramjee Lal Raigar (PW-1) intercepted the vehicle and seized
the items. That the SI then came to the outpost and enquired
from him and the petitioner about the items being permitted
to pass through the gate upon which the petitioner reiterated
that the petitioner had given the civilians permission to pass
on the basis of a permission slip given by them. He and the
petitioner were then directed to report at the BOP Taltoli
where further inquires were made and thereafter he was asked
to go back to the barracks. On being cross-examined he stated
that no scuffle had taken place between himself and the
petitioner.
17. Asst.Comdt.(Coy Comdr.) Sunil Kumar PW-4 deposed that
on 09.05.2008 he was telephonically informed by SI Ramjee
Lal Raigar (PW-1) that certain items had been seized from a
place about 50 yards ahead of the IBBF Gate No.8. That he
immediately rushed to the post where he found 16 sealed and
2 unsealed bags of Potash and 1 bag of salt had been seized
along with a local engine fitted van and 2 bicycles. Upon
enquiry SI Ramjee Lal Raigar (PW-1) told him about the
incident and informed him that the personnel detailed at OP
point no.2 were the petitioner and Ct.S.Kumaresan (PW-3) who
were then called and questioned by him. That Ct.S.Kumaresan
(PW-3) told him that he was not present at the time the
permission to pass through the gate was given as the
petitioner had directed him to cover the area towards the
culvert and that because of the bend in the road he could not
see what was happening at the gate/OP point No.2.
Ct.S.Kumaresan further told him that on reaching the OP point
when he inquired about the van moving ahead of the gate, the
petitioner said that the petitioner had given the civilians
permission to cross the gate. Thereafter he made enquiries
from the petitioner who confessed having given permission to
carry the seized goods beyond the IBBF gate. That upon
finding no entry made in the in/out register of gate no.8, he
directed the petitioner to meet him at the BOP Taltoli for
further investigation. At the BOP when he put questions to the
petitioner, the petitioner instead of answering said in a loud
voice: „Mere khilaf likho, mein bhi likhungam manav adhikar
ayog mein jaunga, abhi mantri ka phone ayega aap mera
kuchh nahin bigar paoge, jo karna hei kar lo, mujhe naukari se
nikal do, mujhe goli mar do‟ and after saying these words the
petitioner threw his belt and cap on the ground. The petitioner
was then shifted to BOP Khutadah for further duties and a
detailed report of the incident was sent to the battalion Head
Quarters. He further deposed that on 25.05.2008 at about
11:50 hours HC(CHM) Bijendra Prasad came to him and
reported that the petitioner on account of not being sanctioned
leave was acting violently and was using abusive language
against him in front of the barracks. The CHM further stated
that despite having told the petitioner that he will be granted
leave after 26.05.2008 as a disciplinary case was pending
against him, the petitioner was not pacified and continued
being violent. He i.e. PW-4 called for the petitioner who in his
presence and in front of Asst.Comdt.Chottu Ram said in an
aggressive manner: „Sunil Saab ko kat dunga jaise CO Saab ko
kata hei aur Sunil Kumar saab ki maa bahain thok dunga‟ .
Asst.Comdt.Chottu Ram directed HC Bijender Singh to place a
guard on the petitioner and call for a fall in and that after
making further inquiry Asst.Comdt.Chottu Ram reported the
matter to the battalion Head Quarter who directed to send the
petitioner to the Head Quarters the same day. On being cross-
examined he stated that Asst.Comdt.Chottu Ram had heard
the abuses hurled by the petitioner.
18. On being examined by the Court he stated that the
villagers were not allowed to carry sealed packets beyond the
IBBF gate and that only required quantity of fertilizers were
permitted. That a proper record of items carried by the
villagers was maintained to keep a check on the smuggling
racket prevalent in the area and the BSF personnel were
regularly briefed about the procedures to be followed. He
further stated that the quantity of item seized suggested that
the items were carried ahead of the IBB fence in connivance
with a BSF personnel.
19. Ct.Gurupada Biswas PW-5 deposed that he was the
sentry on duty at the BOP Taltoli on 09.05.2008 when the
petitioner was called by Asst.Comdt.Sunil Kumar to make
some inquiry. That the petitioner started shouting at the top of
his voice and said: „Mere khilaf likh kar do main bhi aapke
khilaf likhunga, Samadeshta ke pass jaunga, abhi mantriji ka
phone aa jayega‟ and threw his belt and cap on the ground
and shouted: „mujhe goli mar do‟.
20. HC Bijendra Prasad Yadav PW-6 deposed in sync with
Asst.Comdt.Sunil Kumar PW-4 in regards to the indecorous
behavior of the petitioner on 25.05.2008.
21. HC M.B.Powar PW-7 and Ct.K.Ramanna PW-9
corroborated PW-4, PW-5 and PW-6 to the extent that on
25.05.2008 at about 11:30 hours the petitioner was shouting
and using abusive language against the Asst.Comdt.Sunil
Kumar. PW-9 further deposed that a fall in was ordered where
the Asst.Comdt.Chottu Ram asked the coy personnel who had
heard the petitioner, to submit in writing whatever they had
heard and that accordingly PW-9 had submitted an application.
22. Ct.Chanderpal Singh PW-8 deposed that on 25.05.2008
he heard a commotion near the jawans barracks and on
enquiry he was told by the CHM that the petitioner was using
abusive language against Asst. Comdt. Sunil Kumar. On his
way he met the petitioner who told him that the Coy
Commander Sunil Kumar was neither sending him to the Bn.
Head Quarters nor granting him leave and that is the reason
why he said what he felt like.
23. Asst.Comdt.Chottu Ram PW-10 deposed in sync with
Asst.Comdt.Sunil Kumar PW-4 in regards to the incident of
25.05.2008.
24. At the closing of the prosecution evidence, the petitioner
was called upon to make his defence statement, which the
petitioner declined to make and also refused to produce
defence evidence.
25. In view of the evidence led at the trial the court returned
a verdict of guilt qua the 3 charges in the 1st charge sheet
dated 02.06.2008.
26. In the second part of the trial the petitioner was read and
explained the charges listed in the 2nd charge sheet dated
26.11.2008 and on its arraignment the petitioner pleaded
„Guilty‟ to all 4 charges therein.
27. The court, after satisfying itself that the accused
understood the charge and the effect of plea of guilt and the
difference in procedure to be followed in case of the said plea,
proceeded under Rule 142(2) and returned a verdict of guilt
qua all the charges listed in the 2nd charge sheet.
28. Relevant would it be to state that the petitioner was
given an opportunity to make a statement or produce defence
witness(s) in reference to the charges or to mitigate the
punishment but the petitioner declined to avail the
opportunity.
29. In view of the verdict at the trials and considering that
the service record of the petitioner evidenced 6 prior
punishments, 2 for being intoxicated on duty and misbehaving
and the others for striking or threatening superior officers,
disobeying superior officers and absenting from duty without
leave, the Commandant levied the penalty of dismissal from
service vide order dated 1.1.2009 and forwarded the same to
the confirming authority who approved the same.
30. Aggrieved by the sentence imposed, the petitioner filed a
statutory petition on 15.04.09 challenging the order dated
01.01.2009. The petition was rejected vide order dated
23.07.2009.
31. Needless to state the petitioner filled the present writ
petition challenging the order of sentence dated 01.01.2009
and order dated 23.07.2009.
32. The first submission urged was that pertaining to the
incidents dated 9.5.2008 and 21.5.2008 no hearing of the
charge was conducted and that the Officiating Commandant
simply called the petitioner and told him that he was ordering
Record of Evidence to be prepared.
33. The said plea is contrary to the record and we have no
reasons to hold that the Officiating Commandant fabricated
the record.
34. The second plea urged was similar pertaining to the 2 nd
charge sheet and suffice would it be state that the being
contrary to the record and we having no reasons to hold that
the record was fabricated, negate the said plea.
35. The falsity of the pleas raised by the petitioner is self-
evident from the record wherein, pertaining to the 2 nd charge
sheet, at the stage of hearing of the charge we find that the
petitioner has cross-examined 3 witnesses and has made a
statement in defence, contents whereof have been noted by
us in para 6 above. It is apparent that a proper hearing of the
charge was conducted.
36. Even otherwise since the petitioner has been tried at a
Summary Security Force Court where evidence has been led,
assuming that there was a defect in the proceedings
pertaining to the hearing of the charge, it hardly matters.
37. The third contention urged was that multiple charges
were framed upon the same cause of action and the charges
were vague.
38. The plea was hardly elaborated upon and indeed is
incapable of being expanded upon. As regards multiple
charges, suffice would it be to state that where the same set of
acts constitutes more than one distinct offence, the same have
to be specified and this is what we find having happened in the
instant case. Charge 1 of the charge sheet pertained to the
act of facilitating smuggling and charge 2 pertained to
insubordination and improper language used before the Asst.
Commandant and charge 3 pertained to the incident dated
25.5.2008 and use of abusive language. There are 3 distinct
offences emerging and thus the department is right in listing 3
charges. As regards the charge being vague, suffice would it
be to state that the date, the time and the place have been
narrated. Articles facilitated to be smuggled have been
detailed. Threatening, abusive and insubordinate language
has been set out. Similarly qua the 2nd charge sheet, the time,
the date and the place have been detailed. The person
against whom criminal force was used has been named and
the abusive language used has also been disclosed.
39. The next plea urged was that after considering the
Record of Evidence pertaining to the 1st charge sheet the
Commandant had dropped the matter and to make good the
submission it was urged that if it was directed that a trial be
conducted the same would have commenced immediately as
per the practice and not after a few months. We have noted
hereinabove in para 4 the reasons why delay took place and it
is apparent that merely because the trial commenced a little
late the petitioner is trying to use the said delay to infer a
point of fact, which cannot be inferred because of the delay.
40. It was then urged that two charge sheets could not form
the subject matter of a single trial.
41. We have already noted hereinabove that conceptually
two trials were conducted though the Court sat continuously.
We have already noted hereinabove that separate proceedings
in part B have been recorded pertaining to the 1 st charge sheet
and separate proceedings in part B-1 have been recorded
pertaining to the 2nd charge sheet. The testimonies of
witnesses pertaining to the two charge sheets have been
recorded separately and the verdict of guilt is also separate.
Thus, merely because as a matter of fact the Commandant
acting as the Court held one trial after the other does not
render the proceedings tainted in any form whatsoever.
42. Lastly it was urged, pertaining to the 1st charge sheet
that there were discrepancies in the testimony of
Asst.Comdt.Sunil Kumar PW-4 vis-à-vis words recorded in the
charge sheet as the ones spoken by the petitioner to Sunil
Kumar.
43. A perusal of charge 2 and charge 3 pertaining to the 1st
charge sheet would show the words stated to have been used
by the petitioner to Asst.Comdt.Sunil Kumar and we find the
testimony of SI Ramji Lal Raigar in complete harmony with the
crux of the allegation against the petitioner as regards
Asst.Comdt.Sunil Kumar we find that he has substantially
deposed the same language spoken of by the petitioner. Let
us contrast the two. The words alleged in the mouth of the
petitioner as per charge 2 and charge 3 are as follows:-
"MAIRE KILAPH LIKHO, BSF MEN 89 DINO SE UPAR SAJA NAHI
HEA, MEIN BHI LIKHUGA, MANAVADHIKAR AAYOG MEIN
JAUNGA, ABHI MATRI KA PHONE AAEGA, AAP MERA KHUCH
NAHI BIGAD PAOGE. ISHSE PAHLE BHI MENE KIYA HEY, MUJHE
GOLE MAR DO, MUJHE NOUKARI SE NIKAR DO, TUMSE JO HO
SAKTA HE MERA BIGAD LENA."....... "Sunil Kumar, AC ko kat
dunga jaise Comdt ko kata hain. Maa Bahan thok dunga". In
his testimony Asst.Comdt.Sunil Kumar has said that the
petitioner used the words:- „Mere khilaf likho, mein bhi
likhungam manav adhikar ayog mein jaunga, abhi mantri ka
phone ayega aap mera kuchh nahin bigar paoge, jo karna hei
kar lo, mujhe naukari se nikal do, mujhe goli mar do‟ ......„Sunil
Saab ko kat dunga jaise CO Saab ko kata hei aur Sunil Kumar
saab ki maa bahain thok dunga‟. We need not comment much
save and except to write that witnesses are not to speak as
tape-recorders and indeed if they do, the testimony would be
suspect. Natural variations are proof of the truth.
44. The next contention urged was that neither were the
smugglers examined nor was any proof of any benefit taken by
the petitioner or connivance by the petitioner to facilitate
smuggling and thus it was urged that there was insufficient
evidence to indict the petitioner qua charge 1 of the 1 st charge
sheet.
45. Suffice would it be to state that the smugglers ran away
and thus could not be examined as they were not arrested.
The fact of the matter remains that there is evidence of goods
having crossed the BOP gate without an entry being made in
the register and the petitioner being on duty as the Party
Commander of the outpost with the act of contrivance to
depute Ct.Kumaresan towards the culvert beyond the bend on
the IBB Road and Ct.Mahesh Kadui, the third member of the
team being dispatched towards gate No.9 i.e. the two
constables being deputed at a point where gate No.8 could not
be visible to them and contemporaneously a van and two
cycles with 16 sealed bags of Potash, 2 unsealed bags of
Potash and 1 bag of Salt being permitted to be crossed. The
petitioner did not dispute that in the register kept at the gate
to record in/out movement, no entry was made. Thus, it is
apparent that the petitioner had facilitated smuggling and it
hardly matters whether the department could prove petitioner
taking illegal gratification, proof whereof is always difficult to
obtain even otherwise.
46. Pertaining to the 2nd charge sheet it was urged that the
petitioner never pleaded guilty and that the Commandant
wrongly recorded the plea of guilt for all the charges. It was
urged that the petitioner pleaded guilty only to the charge of
being intoxicated i.e. charge No.4 of the 2nd charge sheet and
not the first three.
47. We are not impressed with the argument for the reason
we have no reason to doubt that the Commandant incorrectly
recorded what had happened. The same Commandant
recorded the plea of not guilty and proceeded thereafter to
record evidence pertaining to the 1st charge sheet and we see
no reason why he would not have done so even for the 2 nd
charge sheet if the petitioner had pleaded not guilty. In this
connection it assumes importance to note that pertaining to
the Record of Evidence qua the 2nd charge sheet, the
petitioner refused to even cross-examine the witnesses and
even had refused to sign the said proceedings and there are
traces of petitioner contriving a strategy from the very
beginning to try and create a ground to question, on technical
grounds, the verdict against him qua the 2nd charge sheet.
48. No other plea being urged we terminate by finding no
fault with the penalty levied and for which we take into
account the previous service record of the petitioner which is
not healthy.
49. The writ petition is dismissed.
50. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
April 26, 2011
mm
