Ramprasad Bhumij vs The Union Of India And 5 Ors
2022 Latest Caselaw 2629 Gua

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GAHC010224982021




                         THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                             Case No. : WA/46/2022

         RAMPRASAD BHUMIJ
         C/O HARI OM LADIES TAILOR SHOP, VILLAGE GOPALPUR (NEAR BN BSF
         CAMP, GATE NO. 2) PO KHARIJA KAKRABARI, DIST COOCH BIHAR, WEST
         BENGAL, 736179



         VERSUS

         THE UNION OF INDIA AND 5 ORS.
         REPRESENTED THROUGH THE SECRETARY, HOME DEPARTMENT, NEW
         DELHI 01

         2:THE DIRECTOR GENERAL

          BSF
          CGO COMPLEX
          LODHI ROAD
          NEW DELHI 01
          INDIA

         3:THE SPECIAL DIRECTOR GENERAL (EC)
          KOLKATA (LAW BRANCH) BSF
         WB

         4:THE FTR HQ GUWAHATI (LAW BRANCH)
          BSF ASSAM


         5:THE SPL. HQ BSF
          DHUBRI
         ASSAM
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            6:THE COMMANDANT 17 BN BSF

             ATTACHED 67 BN BSF
             ALAMGANJ
             PANBARI
             DHUBRI
             ASSA

Advocate for the Petitioner   : MR. R C DAS

Advocate for the Respondent : ASSTT.S.G.I.
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                                   BEFORE
                        HONOURABLE THE CHIEF JUSTICE
                    HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
                                   ORDER

01.08.2022 (Soumitra Saikia, J) Heard Mr. R.C. Das, learned counsel for the appellant and Mr. R.K.D. Choudhury, learned Assistant Solicitor General of India, appearing for all the respondents.

2. This writ appeal is directed against the order dated 23.11.2021 passed in W.P(C) No. 5001/2018, whereby the learned Single Judge dismissed the writ petition filed by the appellant as the writ petitioner.

3. The appellant/writ petitioner had served as a Head Constable in the Border Security Force and was posted at Pattamari International Border under Dhubri District, Assam. At the relevant point in time, he was charged with taking illegal gratification of Rs. 21,000/- from a group of persons who had allegedly indulged in smuggling of cattle from India to Bangladesh. The appellant was tried by a General Security Force Court(GSFC) which was convened under the provisions of the BSF Act 1968. 4(four) charges were drawn up against the appellant. The four (4) charges are as under:

"FIRST CHARGE (BSF Act, 1968 Section - 46) Committing a Civil offence that is to say being a public servant taking gratification other than legal remuneration in respect of an official Act punishable under Section 7 of the Prevention of Corruption Act, 1988.

in that he, at BOP Pattamari on intervening night of 19 th and 20 th April, 2015 in between 192330 hrs to 200315 hrs accepted Rs.21,000/- (Rupees twenty one thousand only) from smugglers through Zaharul Islam S/o Shri Bashir Ali, Village-Old Mahamaya Char, P.S.-Dakhin Salamari, District-Dhubri (Assam) for forbearing to stop smuggling of cattle from India to Bangladesh.

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SECOND CHARGE [BSF Act, 1968 Section - 22(e)] NEGLECTING TO OBEY LOCAL ORDER in that he, at BOP Pattamari on 20 th April, 2015 was found in possession of Rs.620/- (Rupees six twenty only) which is in contravention of office order of Commandant, 17 Bn BSF, issued vide Order No.Steno/Conf/2014/12914-36 dated 19 th December, 2014 which forbids possession of more than Rs.500/- by Force Personnel at BOP.

THIRD CHARGE [BSF Act, 1968 Section - 22(e)] NEGLECTING TO OBEY GENERAL ORDER in that he, at BOP Pattamari on intervening night of 19 th and 20 th April, 2015 went out of BOP alone in contravention of BOP standing Orders issued vide Para 94(b) at Page 127 of BSF (Ops Dte) Manual Vol-I, which forbids movement of single person from BOP without permission of BOP Commander.

FOURTH CHARGE (BSF Act, 1968 Section - 19(a) ABSENTING HIMSELF WITHOUT LEAVE in that he, at BSF Water Wing, Dhubri on 22 nd April, 2015 at about 2110 hrs, absented himself from Water Wing BSF, Dhubri till 06 th May, 2015 when he voluntarily rejoined duty at Bn HQ."

4. During the trial, evidences of the witnesses were recorded. The GSF upon conclusion of the proceedings held that all the four charges were proved and thereafter, by its order dated 23.02.2017 sentenced the appellant to the following punishments:

(1) suffer rigorous imprisonment for 89 days in Force Custody;

      (2)          to be reduced to the rank of Constable and

      (3)          to forfeit 5 (five) years of service for the purpose of promotion.

5. Under the Act of 1968, the sentence imposed by the GSF is required to be confirmed by the Confirming Authority. However, by order dated 09.03.2018, the Page No.# 5/12

Confirming Authority remanded the matter back to GSF for revision of the sentence imposed. The GSF was reconvened on 15.03.2018 for re-consideration of the earlier sentence. The GSF by its order dated 15.03.2018, thereafter, revoked its earlier sentence and imposed the sentence of "dismissal from service" on the appellant. The said sentence imposed by the GSF was thereafter confirmed by the Confirming Authority on 07.05.2018.

6. Pursuant to the confirmation order, the findings and the sentence was served on the accused on 11.05.2018 and by its order dated 11.05.2018, the BSF authorities directed that his unauthorized absence period (AWL) with effect from 22.04.2015 to 06.05.2015 shall be treated as " dies non". It was also ordered that the appellant be "struck of strength of 17BN BSF" with effect from 11.05.2018 (AN).

The appellant assailed the order dated 11.05.2018 by way of the writ petition, which came to be dismissed by the learned Single Judge by order impugned in the present appeal.

7. Mr. R.C. Das, learned counsel appearing for the appellant has urged before this Court that the appellant has been made a victim of double jeopardy inasmuch as he was taken into custody for 86 days w.e.f. 06.02.2017. The learned counsel for the appellant submits that initially the GSF imposed a sentence on the appellant interalia to suffer rigorous imprisonment in Force custody. It is submitted that the sentence of dismissal from service imposed on the appellant, subsequently by the GSFC will amount to punishment being imposed twice on the appellant as he had already undergone custody for 86 days w.e.f 06.02.2017. The learned counsel for the appellant submits that this cannot be permitted as it will amount to Double Jeopardy in so far as the appellant is concerned. It is submitted that the learned Single Judge having Page No.# 6/12

failed to appreciate the contentions raised in the writ petition, the impugned order is erroneous and should therefore be suitably interfered with and set aside and the appellant be given the benefit as available under Law.

8. Mr. R.K.D. Choudhury, learned Assistant Solicitor General of India, appearing for the respondents disputes the contentions of the learned counsel for the appellant and submits that the entire submission of the learned counsel for the appellant both before the learned Single Judge as well before this Court is based on wrong premises and wrong interpretation of the provisions of law. Mr. Choudhury submits that under the provisions of Section 57 of the BSF Act, 1968, the authorities have the power to take the offender into custody during the period of enquiry or proceedings. This is commonly referred to as " Close Arrest". The learned ASGI submits that the period spent in custody by the appellant is not pursuant to the sentence imposed but during the trial by the GSFC which is a normal procedure adopted by the respondent authorities in respect of offenders against whom proceedings are initiated. Under the relevant provisions of the Act of 1968, he therefore, submits that the said period undergone in custody by the appellant cannot be considered to be punishment pursuant to the sentence initially imposed by the GSFC inasmuch as since the sentence imposed earlier by the GSFC was not confirmed by the Confirming Authority. The matter was remitted back to the GSFC by the Confirming Authority for re-consideration of the sentence imposed and pursuant thereto, the GSFC by its order dated 15.03.2018 revoked its earlier sentence and imposed the sentence of dismissal from service on the appellant. As such, the sentence imposed by the GSFC earlier was never executed in so far as the appellant is concerned. Therefore, his contentions that he had suffered double jeopardy because of the period undergone by the appellant in custody during Page No.# 7/12

the trial cannot be accepted and should therefore be rejected. The learned ASGI submits that the only ground urged before the learned Single Judge was the ground of double jeopardy and the learned Single Judge upon examination of the matter in its entirety, rejected the same and dismissed the Writ Petition. As such there is no infirmity in the Judgment of the learned Single Judge and the present writ appeal should therefore be dismissed.

9. The learned counsels for the parties have been heard. Pleadings on record have been duly perused. The order dated 23.11.2021 passed by the learned Single Judge impugned in the present writ appeal has also been carefully perused.

10. We have given our anxious thoughts to the contentions and submissions made by the learned counsels for the parties. Before proceeding further, it is necessary to examine the certain provisions of the BSF Act, 1968. The BSF Act of 1968 was enacted to provide for the Constitution and Regulation of an Armed Force of the Union for ensuring the security of the borders of India and for matters connected therewith. Section 64 of the Act provides for different kinds of Security Force Courts under which General Security Force Courts are included. The General Security Force Courts are empowered under the Act and to try any person subject to this Act for any offence punishable and impose any sentence prescribed thereunder. Under the Act of 1968, the various acts or omissions which are considered to be Offences are prescribed from Section 14 to Section 47 of the Act. Punishments awardable are prescribed under Section

48. Section 50 of the Act empowers the GSF to award other punishments in addition to the punishments already prescribed for the offences under Section 14 to Section 47 of the Act of 1968. The various punishments awardable by the Security Force Courts are prescribed under Section 48 of the Act. "Dismissal Page No.# 8/12

from Service" is one such punishment prescribed. The Security Force Court may award punishments prescribed under Clause C of Section 48(1) namely "dismissal from service", and any or more of the other punishments specified under the said subsection.

Under Section 57 of the Act of 1968 that during the proceedings conducted by the Security Force Courts including GSFC, the Commandant can direct the offenders to be taken into custody till the proceedings culminate.

Under Section 107, the findings arrived at and the punishments/sentences imposed upon any offenders by the GSF are required to be confirmed by the Confirming Authority.

Under Section 111, the Confirming Authority has the power to mitigate and/or remit or commute the sentences.

Section 113 empowers the GSFC to revise its findings or sentences.

Under Section 116, there is provision for alteration of finding or sentence in certain cases.

Commencement and execution of the sentences are provided for under Sections 120 and 121.

In exercise of powers conferred under Sub-sections 1 and 2 of Section 141 of the BSF Act, 1968, the Central Government framed the Border Security Force Rules 1969 which came into effect from the date of their publication in the Official Gaztte i.e. 13.06.1969. For the purpose of present proceedings, Rule 38 is relevant. Under the said Rule, it is provided that unless otherwise directed by the Convening Officer, on the commencement of trial of a person by the Court, the said person shall be placed under arrest and shall remain under arrest during the trial. The said Rule is extracted below:

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38. Arrest in case of person whose trial has been ordered.- (1) Unless the convening officer has otherwise directed, on the commencement of the trial of a person by the Court, the said person shall be placed under arrest and shall remain under arrest during the trial.

(2) Where a sentence lower than imprisonment is passed by a court the arrested person shall be released by his Commandant pending confirmation of the finding and sentence:

Provided that a person who has been sentenced to be dismissed shall not except while on active duty, be put on any duty.

11. It is also not in dispute that the appellant is governed by the provisions of the Act of 1968 and the Rules framed thereunder. The pleadings on record reveal that the proceedings conducted by the respondent authorities have been in terms of the provisions of the Act of 1968. The findings arrived at and the sentences imposed by the GSF are required to be confirmed by the Confirming Authority under the provisions of the Act of 1968.

12. Upon conclusion of the proceedings, it had initially imposed punishment and sentence of (1) suffer rigorous imprisonment for 89 days in Force Custody; (2) to be reduced to the rank of Constable and (3) to forfeit 5 (five) years of service for the purpose of promotion by its order dated 23.02.2017. The Confirming Authority, however, remanded the case back to GSFC for revision of the sentence. Thereafter, by order dated 15.03.2018, the GSFC was reconvened and it revoked its earlier sentence and imposed a fresh sentence namely "dismissal from service" on the appellant.

13. The appellant before the learned Single Judge as well as before this Court did not urge any other ground other than the ground of double jeopardy. The appellant has not assailed the order challenged in the writ petition on the Page No.# 10/12

ground of infraction of the provisions of the Act of the Rules or the correctness of the findings arrived at by the GSFC vis-à-vis the evidence adduced during the proceedings.

14. From a perusal of the pleadings on record together with the provisions of the Act of 1968, it is seen that the period of custody undergone by the appellant is not in pursuance to the sentence imposed by the GSFC but the same was during the conduct of the proceedings before the GSFC. Such procedure for keeping the delinquent in custody is provided for under the Rules i.e Rule 38. Under the said Rules, unless the Convening Officer has otherwise directed, on the commencement for trial of a person by the Court, the said person shall be placed under arrest and shall remain under arrest during the trial.

15. From the perusal of the pleadings available on record, it is seen that the respondents had conducted the trial as per the provisions of the Act of 1968 read with the Rules of 1969. No averment is made by the appellant that the trial was not conducted as per the provisions of law. It is also not contended by the appellant that the learned Single Judge had failed to appreciate the contentions and/or did not appreciate all the contentions urged by the appellant. No other ground has been urged by the learned counsel for the appellant apart from the sole ground of Double Jeopardy. Further no arguments have been made by the learned counsel for the appellant that the conviction of the appellant was for violation of the law which was not in force at the time of commission of the act charged as offence. Neither is it the case of the appellant that a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence, has been imposed on the appellant. From the facts agitated before this Court, it is evident that punishment on the appellant after the trial by GSFC was executed only once. The interpretation sought to be given Page No.# 11/12

by the learned counsel for the appellant that the period spent in custody during the trial by the GSF will amount to imposition of punishment and therefore the same will be hit by the principle of "Double Jeopardy", cannot be accepted in the undisputed facts in the present case. Such interpretation sought to be given by the appellant to invoke the protection under Article 20 of the Constitution of India cannot be accepted. The protection under Article 20 of the Constitution of India would have been available to the appellant, only if the appellant was prosecuted and punished for the same offence more than once. Such is not the case as has been revealed in the present proceedings.

16. There is no challenge made to the trial/proceedings initiated against the appellant by the respondent authorities. The sole contention that dismissal from service subsequently imposed will amount to Double Jeopardy in view of the fact that the appellant was in custody during the trial, also cannot be accepted in view of the provisions of Rule 38 of the Rules of 1969 which empowers the BSF Authorities to place under arrest any person who is charged with an offence, during the trial. Such being the provisions in the Rules, the period of custody undergone by the appellant is not pursuant to any sentence imposed and therefore, cannot be considered to be a punishment. The earlier sentence imposed was also not executed as the same was not confirmed by the Confirming Authority. The sentences of "dismissal from service" served on the appellant is the only punishment which is imposed on the appellant by the GSF and executed.

17. We therefore, find no infirmity in the order dated 23.11.2021 of the learned Single Judge, dismissing the writ petition and which is impugned in the present intra court appeal.

18. In an intra Court appeal, on a finding of fact, unless the Appellate Bench Page No.# 12/12

reaches a conclusion that the finding of the Single Judge is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order. In this content reference may be made to the Judgment of the Apex Court rendered in Management of Narendra & Co. Pvt. Ltd. Vs. Workmen of Narendra & Co., reported in (2016) 3 SCC 340. The relevant paragraph of the Judgment is extracted below:

"5. ........... Be that as it may, in an intra-court appeal, on a finding of fact, unless the Appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order (Narendra & Co. (P) Ltd. v. Workmen, WP No.41489 of 2002, decided on 14-3-2008 (KAR)] passed by the Single Judge, unless both sides agree for a fairer approach on relief."

(Emphasised by us)

19. Considering the facts and circumstances of the case and the reasons and discussions above, we find no ground to interfere with the order passed by the learned Single Judge in the Writ Court in intra Court appellate jurisdiction.

20. Writ appeal is accordingly, dismissed. No order as to costs.

                      JUDGE                    CHIEF JUSTICE

Comparing Assistant