$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on:
30. h September, 2019 Decided on:
21. t October, 2019 W.P.(C) 1881/1996 S. S. RANA UNION OF INDIA & ORS. ....Petitioner Through: Mr. Prakash Gautam with Mr. Vivek Ojha and Mr. Neeraj Kumar, Advocates. versus .....Respondents Through: Ms. Abha Malhotra, Senior Counsel. CORAM: JUSTICE S. MURALIDHAR JUSTICE TALWANT SINGH Dr. S. Muralidhar, J.:
JUDGMENT1 The challenge in the present petition is to the charge-sheets dated 31st January, 1994 and 14th January, 1995, and the consequent General Security Force Court („GSFC‟) proceedings ending in the findings and sentence of dismissal from service awarded on 31st May, 1995 and the subsequent order dated 24th April, 1996 of the Central Government rejecting the representation of the
... Petitioner, but commuting the said sentence of dismissal from service to that of compulsory retirement.
2. The background facts are that the
... Petitionerwas, in the year 1990, working as a Quarter Master of the 123rd Battalion of the Border Security Force („BSF‟) having been entrusted that duty by the Commandant of the WP (C) 1881/1996 Page 1 of 22 said Battalion. The duties of the
... Petitionerincluded supervising the subordinate officials dealing in the procurement, distribution and accounting of rations. The
... Petitionerstates that he was assisted in his duties by Mr. David Topno, a Head Constable („HC‟) appointed as Ration Under Officer („RUO‟) by the Commandant. HC Topno‟s duties were to procure, store, distribute, and account for the ration, and maintain documents relating to the purchase of ration. HC Topno was working under the direct supervision of Subedar Buta Singh.
3. The
... Petitionerstates that on 24th September, 1990, 30 quintals of levy sugar was allotted by the Deputy Inspector General („DIG‟), Tripura (South) to the 123rd Battalion, BSF with a direction to obtain permit for the same from the Directorate, Food and Civil Supplies, Agartala, Tripura. The
... Petitionerstates that in the third week of October, 1990, Subedar Buta Singh, who was the Subedar Quarter Master, informed the
... Petitionerthat the sugar stock was low and that the requirement for the following month could not be met. The
... Petitionerthen advised them to initiate the process for allotment of a further 30 quintals of sugar and place the file before the Commandant for approval.
4. On 22nd October 1990, the said Subedar Quarter Master and HC Topno produced the letter of allotment of sugar before the
... Petitioner. According to the
... Petitioner, it was suggested that a vehicle was proceeding to Agartala for purchase of stores and that he should sign the authority letter for collection of sugar. The
... Petitionerdid so and simultaneously asked HC Topno whether the approval of the Commandant had been obtained. HC Topno informed WP (C) 1881/1996 Page 2 of 22 him that the Commandant was not available at the Battalion Headquarters. According to the
... Petitioner, he advised both Subedar Buta Singh and HC Topno to keep the signed authority letter in the file pending and purchase sugar only after the Commandant‟s approval.
5. The
... Petitionerstates that on 24th October, 1990, he suggested to the Commandant in the presence of Subedar Buta Singh and HC Topno that since the sugar quantity was low they should purchase sugar instead of rice. However, the Commandant S. S. Jodha directed that 20 quintals of rice should be purchased first.
6. On 25th October, 1990, the
... Petitionerand Subedar Buta Singh signed in the appropriate columns of the Ration Sanction Register placed it before HC Topno recommending the purchase of wheat and rice. They, however, did not sign in the column for the purchase of sugar. HC Topno then took the register to the Commandant for final approval.
7. On 26th October, 1990, Subedar Buta Singh informed the
... Petitionerthat HC Topno had gone to Agartala at 0530 hours for the purchase of rice and an entry to this effect was made in the General Diary („GD‟) of the Battalion, maintained in the ordinary course of business. On 27th October, 1990, Subedar Buta Singh informed the
... Petitionerthat HC Topno had not returned from Agartala but that the consignment of rice had arrived in the Battalion Unit on the night of 26th October, 1990. Subsequently, Subedar Buta Singh informed the
... Petitionerthat HC Topno returned to the Battalion on 27th October, 1990 at 6 PM. WP (C) 1881/1996 Page 3 of 22 8. On 28th October, 1990, the
... Petitionerleft for the border in terms of the directions issued by the Commandant S. S. Jodha. The
... Petitionerreturned on 5th November, 1990 and attended the office. He was informed by one HC Goverdhan that HC Topno had proceeded on earned leave in terms of the orders passed by the Commandant, and that he had taken over as the RUO on 4th November, 1990. The
... Petitionerstates that Subedar Buta Singh also informed him in the presence of HC Goverdhan that sugar had been purchased and money paid by Subedar Buta Singh from the Ration Fund. The
... Petitionerand Subedar Buta Singh then signed the Ration Sanction Register believing that the 30 quintals of sugar related to the August, 1990 quota. The
... Petitioneradmits that at that time the Bill Number was not recorded in the column of the Ration Sanction Register.
9. The main body of the 123rd Battalion, BSF moved out of Tripura for duties in Punjab and Jammu and Kashmir leaving behind ration and other stores in the previous sector location. The
... Petitionerleft with the main body of the Battalion whereas HC Topno after re-joining from leave remained behind as Ration In-charge to look after the stores and accounting of ration. Likewise, Dr. R. B. Singh also remained in Agartala to provide medical aid to the troops left behind and also to supervise stores etc.
10. In January, 1993 while checking the ration stores, Dr. R. B. Singh found some discrepancies and reported against HC Topno to the Commandant S. S. Jodha in writing for taking disciplinary action against the said Ration In- charge. He then brought this to the notice of the Vigilance Wing of the BSF when no action was taken by the Commandant on his complaint. In WP (C) 1881/1996 Page 4 of 22 February, 1993, the Vigilance Wing conducted a secret enquiry and questioned HC/RUO TopNo.In February, 1993 itself, the Commandant S. S. Jodha called HC Topno and enquired whether HC Topno had disclosed the name of S. S. Jodha before at the Vigilance Wing enquiry in connection with the sugar quota dated 27th October, 1990. HC Topno replied that he had not mentioned anyone‟s name.
11. On 15th June, 1993, HC Topno made a statement before a Court of Enquiry to the effect that on 27th October, 1990, he had proceeded to Agartala, contacted one Kishan Lal, proprietor of M/s. Hindustan Trading Company („HTC‟), and finalised a deal to sell 30 quintals of sugar at Rs.810/- per quintal.
12. HC Topno collected the said money, got the permit for the collection of sugar, purchased the same by depositing the amount, transported it in a hired jeep to the godown of HTC, and sold the same there, returning to the Battalion Headquarters with a profit of Rs.8,550 /-. HC Topno subsequently revealed that he retained Rs. 550 /- out of the above amount, and the balance of Rs.8,000 /- was given to the
... Petitioneron 27th October, 1990.
13. On 31st January, 1994, the
... Petitionerwas issued a charge-sheet under Section 30 (b) of the Border Security Force Act, 1968 („BSF Act‟) alleging that while performing the duties of Quarter Master on 27th October, 1990, he conspired with HC Topno to sell 30 quintals of sugar in the Agartala market to HTC. Out of the profit of Rs.8,550 /-, the
... Petitionerwas stated to have misappropriated Rs. 8,000 /- leaving Rs. 550 /- to HC TopNo.WP (C) 1881/1996 Page 5 of 22 14. On 9th February, 1994, HC Topno made another statement improving upon his previous statement. On the said date, he alleged that he was called twice on 27th October, 1990 by the
... Petitioner, who gave him the authority letter for the collection of sugar. He further stated that a sum of Rs.15,750/- was taken by him from HTC before obtaining the permit for sugar, and the name of Kishan Lal, the alleged purchaser of the sugar, was omitted from the statement.
15. The GSFC was convened with effect from 22nd January, 1995 to try the
... Petitionerfor the charge of committing an offence under Section 30 (f) of the BSF Act i.e. doing “any other thing with intent of defraud, or to cause wrongful gain to one person or wrongful loss to another person”. The punishment for the offence is liable to be for a term which may extend up to ten years.
16. On 24th January, 1995, the
... Petitionersubmitted a list of witnesses. Included in this list were Subedar Buta Singh, Commandant S. S. Jodha, Kishan Lal, the alleged purchaser of the sugar, and one I. N. Dey, the General Diary Writer. The list was forwarded to the Inspector General („IG‟) for his orders. On 27th January, 1995, the Deputy Inspector General („DIG‟) conveyed to the
... Petitionerthe decision declining to summon the said defence witnesses. The objection was that the
... Petitionerhad to specify what the defence witnesses were going to state in the trial and also defray the costs for summoning them in advance. The
... Petitionerstates that the
... RESPONDENTSwere aware that he had no money as pay and allowances had been unauthorisedly withheld in the months of November and December, WP (C) 1881/1996 Page 6 of 22 1994, and January, 1995. These were released to him only on 22nd February, 1995 after the conclusion of the trial.
17. The
... Petitionerfiled written objections to the charge sheet in the GSFC on 27th January, 1995, which were disallowed by the GSFC on the same day itself. In the course of the trial, HC Topno made a statement. According to the
... Petitioner, there was a vital contradiction in the said statement, pertaining to his leaving the Battalion Headquarters on 26th October, 1990 and returning on 27th October, 1990. His version was not supported by the GD entries. He further stated that there was a deficiency of about Rs.5,000/- to Rs.6,000/- in the Officers‟ Mess Fund, and he sold the sugar to make up for the said deficiency. However, there was no evidence to support this theory. HC Topno also alleged that out of the sale proceeds of sugar, Rs.8,000/- was given to the
... Petitioner. However, he gave no proof in support of such an allegation. He also had no explanation for not disclosing the said version to anyone till he was questioned by the Vigilance Wing of the BSF in February, 1993.
18. The
... Petitionerstates that during the trial it transpired that 30 quintals of sugar was also allotted by the DIG, Headquarters, Tripura (South) to the 123rd Battalion by a letter dated 29th October, 1990, which was received in the unit on 2nd November, 1990. The said sugar was purchased on 5th November, 1990 under an arrangement by Commandant S. S. Jodha on another authority letter signed by another officer Kapen not connected with the duties of the Quarter Master. WP (C) 1881/1996 Page 7 of 22 19. During the course of the cross-examination of HC Topno on 2nd February, 1995, the
... Petitioner, through his counsel, wanted to be produced before the Judicial Magistrate, First Class, Agartala. However, this was declined. On that date, when asked whether he wanted to produce defence witnesses, the
... Petitioneranswered in the affirmative. The GSFC held that since the
... Petitionerhad been denied the examination of those witnesses by the IG, who is the convening authority, the
... Petitionercould not summon them. When asked whether he wished to summon any fresh witnesses, the
... Petitioneranswered in the negative. The
... Petitionerwas convicted by the GSFC on 10th February, 1995 and awarded the punishment “to „forfeit two years of service for the purpose of promotion‟ and to be „reprimanded‟.” 20. The proceedings were then submitted to Sher Singh, IG, BSF for confirmation. On 3rd April, 1995, the IG remanded the trial proceedings to the GSFC for revision of punishment. On 7th April, 1995, the same GSFC revised the punishment and awarded the major penalty of “dismissal from service” to the
... Petitioner. These proceedings were again sent to the IG for confirmation in accordance with Rule 106 of the Border Security Force Rules, 1969 („BSF Rules‟), read with Section 108 of the BSF Act. On 4th May, 1995 the IG withheld confirmation and transmitted the proceedings to the superior authority. On 31st May, 1995, the Director General („DG‟), BSF confirmed the findings and the sentence of the GSFC. This meant that the
... Petitioner‟s dismissal from service was confirmed.
21. A statutory petition was filed under Section 117 of the BSF Act by the
... Petitioneron 13th July, 1995 challenging the findings and the sentence WP (C) 1881/1996 Page 8 of 22 awarded by the GSFC as confirmed by the subsequent orders. A W.P.(C) 416/1996 was filed in this Court by the
... Petitionerwhich came to be disposed of by an order dated 31st January, 1996, whereby the
... RESPONDENTSwere directed to decide the statutory petition within three months.
22. By the order dated 24th April, 1996, the Union of India upheld the conviction of the
... Petitioner, but commuted the punishment of dismissal from service to that of compulsory retirement. Aggrieved by all of the above orders, the present petition was filed.
23. One of the principal grounds on which the
... Petitionerhas challenged the proceedings leading up to the GSFC and the entire proceedings and the punishment awarded by the GSFC is that the
... Petitionerwas denied a fair trial and that he was wrongly denied the request for summoning and examining defence witnesses. The
... Petitionersubmits that the entire conviction was based on the self-serving testimony of HC Topno, who was in fact a co-accused, and that there was no other credible and independent evidence to link the
... Petitionerwith the offence.
24. Although rule was issued in the petition on the very first day on 10th May 1996, no progress has been made in the actual hearing of the petition due to numerous adjournments sought by one party or the other. A counter affidavit has been filed on behalf of the
... RESPONDENTS. Reference is made to the events leading up to the holding of the GSFC. In particular, reference is made to the Staff Court of Inquiry („SCOI‟) proceedings completed on 4th November, 1993 which held the then Quarter Master Assistant Commandant WP (C) 1881/1996 Page 9 of 22 („AC‟) S. S. Rana and HC Topno responsible for unauthorisedly selling 30 quintals of sugar allotted to the 123rd Battalion in the month of August, 1990 in the market and earning a profit of Rs.8,550/-. The SCOI further recommended that appropriate disciplinary action be taken against AC S. S. Rana, the then Quarter Master, and HC Topno for unauthorisedly selling levy sugar in the Agartala market with the intention of making money through fraudulent means.
25. It is stated in para 9 of the reply as under: “9. That in reply to the contents of para 4, it is submitted that there is no official record available in the unit as to whether any conversation took place between Shri S . S. Rana, AC and Sub/QM Buta Singh and HC David Topno, Ration NCO. However, authority letter for collection of levy sugar for the month of August, 1990 has been issued from 123 Bn BSF vide letter 123 BN/ Release/ 265/ 90-91 dated 22.10.90 duly signed by Shri S.S. Rana, AC, the petitioner.” 26. It is further stated in para 11 of the reply as under: “ … the petitioner had put his signature for approval of Commandant for purchase of wheat and rice but he did not sign in the column meant for purchase of sugar. The reason for not putting his signature in said column is best known to the petitioner. Commandant had approved for purchase of Wheat, Rice and Sugar.” 27. Reference is made to the General Diary Entry No.849 dated 26th October, 1990 at 0530 hours, which showed that the
... Petitioneralong with HC Topno, Lance Naik K. Nagraju, Naik Bhag Singh, Constable Mati Ram and Constable (Division) Attar Singh, proceeded to Agartala for the WP (C) 1881/1996 Page 10 of 22 purchase of stores. A reference is made to the fact that HC Topno did not report to the Battalion Headquarters. He reported on the following day i.e. 27th October, 1996 at 1000 hours.
28. It is further stated that HC Topno proceeded on 45 days‟ earned leave from 5th November, 1990 to 22nd December, 1990. In his place Head Constable Yobardhan Lal was asked to perform the duties of Ration NCO. It is further stated in Paragraph 14 as under: “ … As per Ration Sanction Register, wheat, rice and sugar had been purchased as per approval of the Commandant (Sri S. S. Jodha) and subsequently, sanction for payment of above ration items had already been accorded by the Commandant on 13.11.90.” 29. The
... RESPONDENTSseek to defend the statement made by HC TopNo.The
... RESPONDENTSclaim that there has been no violation of the BSF Rules, in particular Rule 108.
30. A rejoinder affidavit has been filed by the
... Petitionerreiterating the submissions made in the petition. It is further stated, inter alia, that HC Topno was tried by the Summary Security Force Court (SSFC) one year after the trial of the
... Petitionerby the GSFC. In those proceedings, the
... RESPONDENTSadmitted that the Commandant was disqualified under Rule 46 of the BSF Rules to initiate disciplinary proceedings in the instant case as he was himself an interested person. It is pointed out: “ … there is no provisions under Border Security Force Rule for relaxing the said provisions of BSF Rule 46 and to empower the commandant to initiate disciplinary action even when he WP (C) 1881/1996 Page 11 of 22 was disqualified to do so. The punishment of the reduction of rank awarded to Shri David Topna was not in proportionate to the gravity of offence committed by him. It is respectfully submitted that no confirmation of the sentence passed by Summary Security force court is required to be done by the DIG under the Rules.” 31. It is also pointed out that as per the General Diary Entry, HC Topno was not present at Headquarters Bagafa from 0530 hours on 26th October, 1990 to 1800 hours on 27th October, 1990. This renders the statements made by HC Topno inconsistent and contradictory.
32. This Court has heard the submissions of Mr. Prakash Gautam, counsel for the
... Petitionerand Ms. Abha Malhotra, counsel for the
... RESPONDENTS.
33. One of the central issues to be addressed is whether the GSFC could have relied on the uncontroverted version of the co-accused HC Topno (PW-
3) to find the
... Petitionerguilty of the offence with which he was charged. Reliance is placed on the decisions in Bhiva Doulu Patil v. State of Maharashtra AIR1963SC599and Haroon Haji Abdulla v. State of Maharashtra AIR1968SC832 34. It is pointed out that there is no category of “reserved for confirmation” under Rule 106 of the BSF Rules. In the present case, a question has been raised whether the confirmation of the findings and the punishment by the DG, BSF was legal when confirmation had been withheld by the IG, BSF under Rule 106 of the BSF Rules. WP (C) 1881/1996 Page 12 of 22 35. Mr. Gautam pointed out that the affidavits of the witnesses sought to be summoned in the proceedings before the Judicial Magistrate, First Class, which included the affidavit of Kishan Lal (Annexure P-13), could not have been refused to be taken on record. It is pointed out that HC Topno has been retained in service and awarded a minor punishment of reduction in rank, which is discriminatory vis-à-vis the
... Petitioner, whose culpability, if any, is far less than that of HC TopNo.36. Mr. Gautam also pointed out that the essential ingredient of Section 30 (f) of the BSF Act is not proved in the present case. In other words, barring the evidence of HC Topno, which itself was inadmissible, there was no independent and credible evidence to show that any money had been received by the
... Petitionerfrom the sale of the sugar.
37. Turning to the enhancement of the original punishment to dismissal from service, it is submitted that it was wholly unwarranted considering the lenient treatment accorded to HC Topno, who was, if at all, the principal accused. Non-examination of the witnesses cited by the
... Petitionerin his defence was a denial of fair trial procedure, which was completely lost sight of when the enhancement of the punishment was awarded. No valid reasons have been given for the enhancement of the sentence.
38. Ms. Abha Malhotra, learned counsel for the Respondent on the other hand submitted that this Court should not re-appreciate the evidence under writ jurisdiction and that the scope of interference with the impugned orders was limited to examining if there was any illegality committed in the WP (C) 1881/1996 Page 13 of 22 procedure. Ms. Malhotra submitted that the charges for which the
... Petitionerwas found guilty were extremely serious and admitted of “no leniency”. Considering the level of responsibility of the
... Petitionerin the organisation, it could not be said that the punishment was disproportionate and no comparison could be drawn to his subordinate.
39. The above submissions have been considered. The Court has also perused the entire record of the GSFC.
40. The
... Petitionerwas tried by the GSFC for the single charge of committing an offence punishable under Section 30 (f) of the BSF Act which pertains to the doing of an act with the intent to cause wrongful gain to oneself.
41. The wrongful gain to the
... Petitioner, as alleged, was being privy to the sale of 30 quintals of levy sugar of the unit by HC Topno (RUO) to HTC for a profit of Rs.8,550/-. Interestingly, the charge does not bear out the allegation made by HC Topno that of the sum of Rs.8,550/-, HC Topno retained Rs. 550 and passed over Rs.8,000/- to the
... Petitioner.
42. The trial court record reveals that the first witness of the prosecution (PW-1) was Assistant Sub-Inspector („ASI‟)/Clerk Mohan Singh. He produced a letter dated 19th September, 1990 received from the Government of Tripura, Directorate of Food and Civil Supplies addressed to the DIG, BSF, Gokul Nagar, pertaining to the allotment of levy sugar for the month of August, 1990. He also produced a letter dated 24th September, 1990 by the WP (C) 1881/1996 Page 14 of 22 DIG, BSF reallocating the levy sugar for the aforementioned months to various units deployed in Tripura. This witness confirmed that levy sugar was ordinarily purchased in cash, and when it was brought to the unit, it was surveyed by a board of officers and then taken “on ledger charge”. During cross-examination, a letter dated 16th October, 1990 of the Additional Director, Food and Civil Supplies, Tripura for allotment of levy sugar for September, 1990 was also produced and taken on record. The corresponding letter of the Sector Headquarters („SHQ‟), Tripura dated 29th October, 1990 issued to the Director, Food and Civil Supplies, Agartala, Tripura (West) with a copy to the concerned Headquarters/Units pertaining to the allotment of levy sugar for September, 1990 was also marked as an exhibit. PW-1 does not appear to have proved any part of the charge against the
... Petitioner.
43. PW-2, Tapan Deb Nath was an Upper Division Clerk („UDC‟) at the Directorate of Food and Civil Supplies who, during the relevant year 1990, was serving in the Department of Food and Civil Supplies, Agartala. He stated, inter-alia, that on 27th October, 1990, one BSF person from the 123rd Battalion Headquarters had come to his office with an authority letter and after the perusal of the same, he was issued a permit. Again, this witness is not particularly helpful to the prosecution as far as the charge against the
... Petitioneris concerned.
44. PW-3 was HC Topno, the co-accused in the case. In his examination-in- chief, he claimed that the
... Petitionercalled him on 20th October, 1990 at around 1900 hours to 1930 hours and enquired about the present stock of sugar in the ration store of the unit. PW-3 is supposed to have told him that WP (C) 1881/1996 Page 15 of 22 there was sufficient stock of sugar and that there was no need to procure any sugar from the market. According to PW-3 on 22nd October, 1990, at around 0630 hours to 0645 hours, the
... Petitioneragain called him to his residence and told him that there was a deficiency about Rs.5,000/- to Rs.6000/- in the Officers‟ Mess which had to be adjusted. According to PW-3, the
... Petitionersuggested that the deficiency could be made up by selling off the levy sugar in the market on some profit. PW-3 is supposed to have told the
... Petitionerthat he would have to ask the Commandant, and thereafter returned to the unit.
45. According to PW-3, the
... Petitioneragain called him to the
... Petitioner‟s office on 22nd October, 1990 between 0930 hours and 1000 hours. The
... Petitioneris stated to have taken out a cyclostyled authority letter, filled it up in the presence of PW-3 and affixed his signatures thereon. He also required HC Topno to put his signatures at the relevant place, which HC Topno did. PW-3 then identified his signatures as well as that of the accused on Exhibit „U‟ i.e. the authority letter.
46. PW-3 then stated that on 22nd October, 1990, at around 0730 hours, the
... Petitionercalled him at his residence and handed over the authority letter for the collection of the levy sugar. The
... Petitioneris claimed to have told PW-3 that he had already informed the Commandant about it. The
... Petitioneris supposed to have instructed PW-3 to contact M/s. A. L. Saha and HTC and to sell the levy sugar to the firm from which higher profit could be made, and hand over the profit to the
... Petitioneron return from Agartala. WP (C) 1881/1996 Page 16 of 22 47. PW-3 then stated that on the morning of 26th October, 1990, he had gone to Agartala for the collection of ration items and had returned to the unit in the evening. Before making his arrival entry in the GD register, he met the
... Petitionerat his office between 1800 hours to 1830 hours and reported to him that the ration items had been collected. The
... Petitioneris supposed to have told PW-3 that since the latter had to go to Agartala on the following day i.e. 27th October, 1990, he should not make an arrival entry in the GD register.
48. PW-3 is supposed to have instructed the GD clerk accordingly. PW-3 left for Agartala at around 0800 hours on 27th October, 1990 by bus and reached there at 1100 hours. He took a rickshaw and went to M/s. A. L. Saha and talked to the proprietor about the purchase of the sugar but the said proprietor refused it. Then PW-3 went to HTC and made the offer to sell the sugar. The said proprietor of HTC informed HC Topno that he could buy at the rate of Rs.810/- per quintal, and if the sugar quality was good, then at an even higher rate. After drawing 30 quintals of levy sugar, HC Topno proceeded to the godown of HTC, and after unloading the sugar there, he visited the shop of HTC. The rate of Rs.810 /- per quintal of levy sugar was fixed with the proprietor. Thus, according to PW-3, after deducting the sum of Rs.15,750/- as the actual cost of the sugar paid at the Food and Civil Supplies Office, the balance amount of Rs.8,550/- was given to PW-3 as profit by the proprietor. PW-3 claims to have met the
... Petitionerthereafter and then given him Rs.8,000/- which he accepted. PW-3 produced the Ration Stock Register of the 123rd Battalion, BSF wherein on 27th October, 1990, there was no entry regarding the receipt of 30 quintals of levy sugar. WP (C) 1881/1996 Page 17 of 22 49. During the course of cross-examination, the defence counsel requested the court that the register be marked as Exhibit „W‟ and taken on record. The court then made the following observations in the transcript of the cross- examination of PW-3: “The Court observe that the ration sanction register, 123 Bn BSF contains 134 leaves. However, the last leaf not numbered. On the first page an inspection sheet is glued and certificate to the effect that the register contains 134 pages has been rendered on the first page. It has been signed by QM, 123 Bn BSF and does not bear any date. The Court observe that at page 49 at serial No.03 against sugar, the column „signature of SI/QM‟ and „signature of QM‟ are blank. However, at other serial numbers i.e. serial number 01.02.04 and 05 the signatures of the SI/QM and QM have been made. The dates by the SI/QM have not been put whereas, the dates by the QM have been put as 28.10.90 under his signatures. In the column „approval by the Commandant‟, the Commandant has signed on 28.10.90. In the column „date and bill number‟, bill No.158371 dated 5.11. is written. In the column „signature of SI/QM‟ the signature dated 5.11.90 have been made. Similarly, in the column, „signature of QM‟, signatures dated 5.11. have been made and in the column sanctioned by the Commandant, the officiating Commandant has sanctioned Rs.15,808.50 on 13.11.” 50. One S. B. Sarkar was PW-4. He had been working at the Tripura State Cooperative Consumers Federation Limited, Agartala since 1964. There was a fifth witness for the prosecution (PW-5), who had been working as a Daftry at the Battalion Headquarters, who produced the Letter Receipt Register.
51. Initially, it appears that the
... Petitioneranswered in the negative when he WP (C) 1881/1996 Page 18 of 22 was asked, “Do you intend to call any witness in you defence?.”. However, the fact remains that the
... Petitionerwas not allowed to summon the witnesses of his choice. In his statement, the
... Petitionercompletely denied that HC Topno had visited him or that the
... Petitionerhad called him. It was further stated by the
... Petitionerthat he: “never suggested and asked him or instructed him to dispose of the sugar of August 1990 quota to earn profit to adjust the outstanding dues of Officers‟ Mess as alleged by him. It is also correct to say HC David Topno never met me on 27 Oct 1990, nor handed over me Rs. 8,000/- as alleged to have stated by him. Being Quarter Master of the Unit, I also state that without receipt of the allotment letter from SHQ BSF Tripura (S) for levy sugar, no approval of the Commandant has ever been taken or can be taken for purchase of levy sugar. During tenure of my functioning as Quarter Master, approval of the Commandant was only taken on receipt of the allotment letter. It is further submitted that the signatures endorsed by me on the ration sanction register at page No.49 for purchase of other items of ration except sugar were dated on 25.10.90 in my own handwriting and not 28.10.90 as recorded by the Hon‟ble Court during the course of proceedings.” 52. The GSFC also noticed that the “GD register is badly eaten up by white- ants at different places as a result, most of the pages are loose, un- manageable and not intact. It is not binded also. It contains pages serial No.03 to 498.” 53. The
... Petitionerwas cross-examined and he withstood completely. He was also put questions by the Court which he satisfactorily answered. He denied having told HC Topno about any deficiency of Rs.5000/- to Rs.6,000/- in the Officers‟ Mess which was required to be adjusted. He WP (C) 1881/1996 Page 19 of 22 denied calling HC Topno to his office on 22nd October, 1990 or 27th October, 1990 or telling HC Topno to go to Agartala and contact M/s. A. L. Saha and HTC and dispose of the levy sugar by collecting the highest possible amount. He specifically denied accepting Rs.8,000/- from HC TopNo.54. In the above circumstances, the Court fails to appreciate how the GSFC could have been satisfied about the guilt of the
... Petitionerin having accepted Rs.8,000/- from the sale proceeds of the levy sugar.
55. As rightly pointed out by counsel for the
... Petitioner, the star witness to this entire transaction should have been the alleged purchaser of the goods, Kishan Lal. It appears to the Court that the failure to summon him was contrary to the requirement of fair procedure as set out in Rule 48 of the BSF Rules.
56. Coming to the main charge, the Court finds that it does not stand proved that the
... Petitionerbenefited from a sum of Rs.8,000/- from the sale of levy sugar, or for that matter, from any amount at all. The only evidence is that of HC Topno, but that has not corroborated by any other credible and independent evidence. The statement of HC Topno also appears to be largely self-exculpatory, which makes it even more doubtful. The failure of the
... Petitioner‟s attempts at summoning Kishan Lal, and even being denied permission to tender his affidavit, has deprived the
... Petitionerof an effective defence to the charge. No satisfactory explanation has been forthcoming from the
... RESPONDENTSabout the failure to summon the witnesses as requested by the
... Petitioner. This appears to be a case where the GSFC WP (C) 1881/1996 Page 20 of 22 proceeded to convict the
... Petitioneron no credible evidence.
57. Consequently, the Court is satisfied that not only was the procedure adopted not consistent with the requirements of the BSF Rules, but even the substantive charge against the
... Petitionerwas not proved.
58. The Court finds also that there was no occasion for the IG to have enhanced the punishment to dismissal from service. The order passed in this regard is an entirely non-speaking one which also renders it vulnerable to invalidation.
59. For all of the aforementioned reasons, the Court sets aside the proceedings of the GSFC and the findings and sentence awarded to the
... Petitioner. He is acquitted of the charge of committing the offence under Section 30 (f) of the BSF Act.
60. The
... Petitionerhas in the meanwhile crossed the age of superannuation. The
... RESPONDENTSwill now issue appropriate orders on the basis that the
... Petitioner, upon his acquittal from the charge under Section 30 (f) of the BSF Act, would have stood reinstated in service, and calculate his retiral dues and pension etc. after fixing his notional pay in accordance with law. This exercise be completed within a period of twelve weeks from today.
61. If aggrieved by any of the consequential orders passed by the
... RESPONDENTS, it will be open to the
... Petitionerto seek appropriate remedies in accordance with law. WP (C) 1881/1996 Page 21 of 22 62. The petition is allowed in the above terms with costs of Rs.20,000/- to be paid by the
... RESPONDENTSto the
... Petitionerwithin a period of four weeks. OCTOBER21 2019 tr/mw S. MURALIDHAR, J.
TALWANT SINGH, J.
WP (C) 1881/1996 Page 22 of 22