Ex.Head Constable Moti Singh vs Uoi & Ors.
2017 Latest Caselaw 1395 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Reserved on 22nd December, 2016
                                    Decided on: 15th March , 2017

+       W.P.(C) 3847/2006
        EX.HEAD CONSTABLE MOTI SINGH ..... Petitioner
                     Through: Mr. M.G. Kapoor, Advocate.

                           versus

        UOI & ORS.                                  ..... Respondents
                           Through:      Mr. Vivek Goyal, CGSC for
                                         UOI.
CORAM:
HON'BLE MS. JUSTICE INDIRA BANERJEE
HON'BLE MR. JUSTICE ANIL KUMAR CHAWLA

                             JUDGMENT

INDIRA BANERJEE, J

1. The short question involved in this writ petition is whether the

Summary Security Force Court constituted under Section 64 of

the Border Security Force Act 1968, was justified in imposing

on the petitioner the sentence of rigorous imprisonment for 6

months in civil prison and dismissal from service for alleged

possession of money disproportionate to his known sources of

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income. The sentence has been commuted to dismissal from

service.

2. The petitioner was enrolled as a constable in the Border

Security Force on 26.08.1987. In November 2002, while the

petitioner was posted in the 62nd Battalion, BSF, the petitioner

was deployed at the Bangladesh border at the Bohraghat Border

Out Post (BOP).

3. On the presumption that the petitioner had pecuniary resources

disproportionate to his known sources of income, as he had sent

a bank draft dated 20.11.2002 for a sum Rs. 40,000/- to his

wife, Summary Court proceedings were initiated against him.

As per the orders of the Commandant 42nd Battalion BSF,

evidence was taken and the Record of Evidence prepared.

4. The evidence was recorded between 30th June 2004, and 11th

July, 2004, after which the petitioner was attached to the 63 rd

Battalion for disciplinary proceedings. The commandant 63rd

Battalion BSF charged the petitioner with possession of

pecuniary resources disproportionate to the known sources of =====================================================================. WP(C) NO. 3847/2006

his income, which he could not satisfactorily account for in

terms of Section 13 (1) (E) of the Prevention of Corruption Act,

1988.

5. According to the petitioner, on 15th January 2005, the petitioner

was handed over a copy of the chargesheet and on the same

day, in the evening, a copy of the Record of Evidence. It is

alleged that the petitioner was told by the commandant that he

would be let off leniently, if he pleaded guilty.

6. On 07.01.2002, the Summary Security Force Court imposed on

the petitioner the sentence "to suffer rigourous imprisonment

for 6 months in civil prison and to be dismissed from service.

The sentence was passed on the basis that the petitioner had

pleaded guilty. On 17th March 2005, the DIG, Station

headquarters, ASF, Berhampore commuted the punishment to

dismissal from service. The sentence was repromulgated.

However the petitioner had, in the meanwhile already

undergone rigorous imprisonment for over 2 months.

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7. On or about 12.05.2005, the petitioner made a statutory petition

to the respondent No. 2 under Section 117 of the Border

Security Force Act. The statutory petition was rejected by an

order dated 26th October 2005.

8. In this writ petition the petitioner has challenged the sentence of

the Summary Court as revised by the DIG Station headquarters

as also the order dated 26.10.2005 of the Director-General

Border Security Force rejecting the statutory petition filed by

the petitioner.

9. From the Record of Evidence it appears that about four

witnesses were examined. One J. R. Guleria of 62nd Battalion

deposed that as per the service records of the petitioner, the

petitioner was posted in "E" COY in 2002. He was at the

Chandinichak Border Out Post (BOP) from 15.07.2002 till

20.08.2002, thereafter at the BOP Noorpur from 22nd of August

2002 till 30 of September 2002, and thereafter at BOP

Bohraghat from 12.10.2002 to 31.03.2002 for 6 months.

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10. It further transpired in evidence that the name of the petitioner's

wife was Bima Devi and her home address was Village and

Post Office Thedi, Tehsil Fathapur, Shekhawati, Police Station

Ramgarh, Distt: Sikar, Rajasthan-331024.

11. The unit headquarters had received the details of bank drafts

No. 487544 dated 20.11.2002 for an amount of Rs.40,000/-

issued by State bank of India, Jangipur, in favour of Bima Devi,

Account No.16697 at the State Bank of Bikaner and Jaipur

Fathapur. The other witnesses also gave evidence with regard to

the Bank Draft.

12. J.R. Guleria further deposed that a Court of Inquiry had been

ordered and the Court of Inquiry confirmed that the petitioner

got the Bank Draft prepared. The evidence of J.R. Guleria was

supported by others.

13. One Om Prakash who had been performing the duty of unit

accountant deposed that the petitioner had drawn pay and

allowances amounting to Rs.59,062/- from January to

December, 2002. He also gave evidence with regard to the =====================================================================. WP(C) NO. 3847/2006

Bank Draft. He stated that a letter had been received from the

concerned bank confirming that the Bank Draft had been

encashed and the proceeds thereof credited to the joint account

of the petitioner and his wife Bima Devi.

14. Ex facie, there is no evidence at all in this case, to support the

charge against the petitioner of being in possession of pecuniary

resources, disproportionate to the known sources of his income.

The petitioner drew salary and allowances amounting to over

Rs.53,000/- during the period from January to November, 2002.

15. From the record of evidence, it is apparent that the petitioner

sent a draft of Rs.40,000/- to his wife Smt. Bima Devi. Nothing

more emerges from the Record of Evidence. It is nobody's case

that the petitioner routinely sent high value drafts to his wife. It

cannot be disputed that the petitioner earned salary and

allowances of Rs.53,000/- odd between January and November

2002. Sending a single draft of Rs.40,000/- to the petitioner's

wife, does not establish the charge of possession of pecuniary

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assets disproportionate to the known sources of the petitioner's

income.

16. It is the case of the prosecution that the petitioner drew

Rs.59062/- from January to December, 2002. Exhibit-A

showed that the petitioner drew Rs.59158/- from January to

December 2002. The petitioner thus drew Rs.53,904/- from

January, 2002 to November, 2002. No evidence was adduced

that the petitioner spent more than Rs.13,904/- from January,

2002 to November, 2002.

17. The authorities concerned did not consider what could have

been the expenses of the petitioner during the period in

question, when expenses of Border security personnel deployed

in border areas at out posts, on uniforms, food and lodging are

subsidised and/or borne by the Border Security Force.

Accordingly to the petitioner he had to pay mess bill of

Rs.560/- per month and had no expenses except on soap, hair

oil, shaving cream, etc. Expenditure of Rs. 1,000/- per month in

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the year 2002, which is about Rs.450/- over and above mess

expenses, appears to be reasonable.

18. The authorities have apparently not applied their mind to the

evidence on record in the context of the charges against the

petitioner. There was no allegation against the petitioner of any

illegal favour shown to anyone or of any illegal act done for

anyone. The Summary Court proceeded on the basis that the

petitioner had pleaded guilty, and sentenced him by a cryptic

non-speaking stereo typed order.

19. In Ram Paul Vs. Union of India and Another being WP(C)

No. 2287/2001, a Division Bench of this Court passed a

judgment and order dated 26.07.2004, holding that there should

not have been any conviction on the charges of accepting illegal

gratification from smugglers for allowing them to smuggle

50/60 bags of sugar to Bangladesh, since there was no evidence

to make out the charge, even though, the accused had allegedly

pleaded guilty, as in this case. This Court also found that the

cryptic rejection of the statutory appeal was illegal. =====================================================================. WP(C) NO. 3847/2006

20. Unlike Ram Paul's case (supra) where the petitioner had been

accused of accepting illegal gratification from smugglers for

allowing them to smuggle, in this case there is neither any

allegation, nor any material against the petitioner of illegal

gratification or of connivance in illegally allowing cross border

movement of persons or goods.

21. Mr. Kapur submits that the petitioner did not plead guilty to the

charge of possession of disproportionate pecuniary resources,

but he only admitted to having sent a bank draft, and that too on

the assurance that he would be let off leniently if he made an

admission.

22. Even assuming that the petitioner pleaded guilty, though it is

seriously disputed that the petitioner pleaded guilty to the

offence of possession of disproportionate pecuniary resources,

only pleading guilty could not lead to a conviction, as held by

the Division Bench in Ram Paul (supra). The impugned

sentence is totally perverse, based on no materials, contrary to

the weight of the evidence on record, arbitrary unreasonable, =====================================================================. WP(C) NO. 3847/2006

and conjectural and hence liable to be set aside and quashed.

The impugned action being unsustainable in law for the reasons

discussed above, it is not necessary for us to examine the other

grounds of challenge to the impugned action/dismissal.

23. The writ petition is, therefore allowed. The sentence, as revised,

as also the sentence as imposed is set aside. The order dated

26.10.2005 is also set aside. The dismissal of the petitioner

being illegal and wrongful, the petitioner shall be reinstated

with back-wages.

                                               INDIRA BANERJEE, J



                                            ANIL KUMAR CHAWLA, J
March    15, 2017/ n

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