D.N. Chowdhury, J.
1. The findings and sentence passed by the General Court Martial (GCM in short) is the subject-matter of challenge in this proceeding which has arisen in the following circumstances.
Petitioner, JC 171925 Radhey Shyam Singh was posted to 4 Rajput Regiment. He is an international athlete his event being Hammer Throw. The petitioner was attached to 113 infantry Battalion at Calcutta to enable him to undergo training at Sports Authority of India from 28.6.1992 and continued to be attached to that unit till he was recalled by the 4 Rajput Regiment on October, 1993. According to the petitioner, he was granted ten days' casual leave and in fact was sent a Railway Warrant dated 15th October, 1993 for his return journey from Howrha to Jammu. On 2.11.1993, the petitioner was detained by the Railway Protection Force (RPF in short) at the Dimapur Railway Station for alleged possession of Ganja by him. In due course a GCM was convened under the Army Act and the petitioner was charged under two heads; the first head was Under Section 69 of the Army Act for committing a civil offence of being in possession of ganja contrary to Section 20(b)(i) of the Narcotic Drugs & Psychotropic Substances Act (NDPS Act in short), 1985 and the second head of charge was Under Section 30(a) of the Army Act for absenting himself without leave. The GCM commenced on 26.1.1996 and the findings were announced on 1.4.1997. The petitioner was not found guilty of the second charge and was acquitted thereof. The GCM, however, found the petitioner guilty Under Section 69 of the Army Act. On the 2nd day April, 1997, the GCM announced the sentence by awarding 4 (four) years' rigorous imprisonment as well as dismissal from service. The legality and validity of the aforesaid finding and the sentence of the GCM is challenged as being arbitrary, discriminatory, illegal and without jurisdiction.
2. The respondent contested the case and submitted their affidavit. In their affidavit, the respondents stated that as per the advice of the Army Headquarters, the petitioner was attached to the 113 infantry Battalion to attend an Athletics Diploma course at the Sports Authority of India, Salt Lake, Calcutta from 28.7.1992 to 1.5.1993. On termination of the said course, the petitioner did not return to the Until inspite of repeated requests. On 2.11.1993, the petitioner and one Naik A.K. Tigga of the Bihar Regiment were arrested at the Dimapur Railway Station by the RPF. At the time of their arrest, both of them were in possession of approximately fifty kilograms of Ganja. Both the arrested persons were then attached to the 50 Coy ASC (Sup) Type 'C and tried a GCM. It is further stated in the affidavit that the petitioner was attached to the 113 Infantry Battalion at Calcutta in order to enable him to undergo training with the Sports Authority of India. As per records maintained by the Sports Authority of India, the training concluded on 15.5.1993. The petitioner had asked for leave from his parent Unit and he was granted ten days leave on 12.10.1993 by his Unit. After the expiry of his leave, the petitioner was required to report back to his parent Unit of Rajput Regiment then located in the Northern Sector. Therefore, there was no reason for the petitioner to be at Dimapur on 2.11.1993. The petitioner was also issued Railway Warrant for his journey from Howrah to Jammu. Furthermore, there was no route to Jammu or to the home town of the petitioner via Dimapur. Besides, the petitioner had no authority to travel on Dimapur route when he was issued with Railway Warrant from Howrah to Jammu. The fact was that the petitioner alongwith the co-accused NKAK Tigga, were found in possession of fifty kilograms of Ganja and were taken into custody by the RPF at the Dimapur Railway Station and subsequently handed over to the Army Personnel of the CMR Shri Bodhan Das, a Porter at them Dimapur Railway Station, identified the petitioner and also the Steel Box and the VIP Suitcase containing Ganja as those belonging to the petitioner and NKAK Tigga. The said civilian Porter had carried the luggage of the petitioner and co-accused from the auto rickshaw to the train. The respondents stated that the GCM on the consideration of the materials on record, rightly reached its findings and awarded the sentence as per law. That since there is/was no infirmity in the proceedings, the writ application is/was liable to be dismissed.
3. Mr. A. Sarma, learned Senior Counsel appearing on behalf of the petitioner, challenged the legality of the Court martial proceedings on two grounds Firstly, that the petitioner was tried and was also found guilty by the GCM for committing a civil offence of possessing Ganja contrary to the provisions of Section 20(b)(1) of the NDPS Act, 1985, which is unlawful and is an offence under the said Act and the act provides that such an offence is/was to be tried by a Special Court established under the Act; the GCM exceeded its jurisdiction. The learned Senior Counsel submitted that an offence under the NDPS Act, 1985 is to be tried and adjudicated only a Special Court created and established under the Act and by no other authority; that the GCM authority in trying and adjudicating the offence exceeded its bounds, which was beyond the pale of any Forum other than the Special Court established under the Act, 1985. In support of his contention Mr. Sarma, the learned Senior Counsel referred to the scheme of the NDPS Act as well to that of the Army Act and submitted that the findings and the conclusion reached by the GCM are, therefore, wholly without jurisdiction and liable to be quashed. Mr. Sarma, the learned Senior Counsel appearing on behalf of the petitioner, also took pains in referring to the evidence on record and submitted that the materials on records did not prove and establish possession of contraband article by the petitioner and in the absence of such proof, the GCM committed grave error in holding the petitioner guilty of the charge Under Section 69 of the Army Act and sentencing the petitioner thereunder. In support of his contentions, the learned senior Counsel for the petitioner, also referred to a decision of the Supreme Court in Ali Mustaffa Abdul Rahman Moosa v. State of Karala : AIR1995SC244 .
4. Mr. K.K. Mahanta, learned Sr. CGSC appearing on behalf of the respondents, on the other hand, submitted that the petitioner was charged for committing a civil offence Under Section 69 of the Army Act. That the GCM was fully within its jurisdiction in trying and adjudicating the offence under the Army Act. That the jurisdiction of the GCM was neither expressly nor impliedly taken away by the NDPS Act, submitted the learned Sr. CGSC. The learned Sr. CGSC Mr. Mahanta, further submitted that Constitution as well as convening of the Court Martial is not under challenge; what is basically challenged is as to the findings and the conclusion reached by the GCM. The learned Senior Counsel submitted that a proceeding of Court Martial is not to be equated with the proceeding of a Criminal Court under the Code of Criminal Procedure. That the Court Martial Authority under the Army Act is charged with a specilised job equipped with the mechanism to maintain the military discipline. The Army Act, the Rules, the Defence Services Regulation and other administrative instructions of the Army provide an in-built safeguard to an accused for a fair trial. In the instant case, the Court Martial Authority, on considering the evidence on record and after holding a fair trial, reached a finding of its own and came to a conclusion which should not be lightly be interfered within exercise of the powers under Article 226 of the Constitution of India. Mr. Mahanta, the learned Sr. CGSC, time and again submitted that a Court Martial is not subject to the Superintendence of the Courts in its jurisdiction under Article 227 of the Constitution of India. That when the Court Martial reaches its conclusion on assessment of facts after providing reasonable opportunity of defence to the accused, there is/was no scope for interfering with such conclusion under Article 226 of the Constitution, submitted the Sr. CGSC. In support of his contentions the learned Sr. CGSC referred to the decisions of the Supreme Court in Union of India and Ors. v. IC 14827 Maj. A Hussain : (1996)ILLJ781SC and General Court Martial and Ors. v. Col. Aniltej Singh Dhaliwal : 1998CriLJ1402 .
5. Before dealing with the first contention of Mr. A. Sarma, learned Senior Counsel appearing on behalf of the petitioner as to the competence and jurisdiction of the GCM to try the offence in question it would be appropriate to look into the relevant statutory provisions. The Army Act, 1950 is enacted to consolidate and amend the law relating to the governance of regular Army. Section 2 of the Act enumerates the different categories of Army persons who are subject to the Act. Section 3(iii) defines 'civil offence' to mean an offence which is triable by the Criminal Court. 'Court Martial' and 'Criminal Court' are defines in Clauses VII and VIII of Section 3 meaning a Court Martial held under the Army Act and Criminal Court as a Court of ordinary criminal justice in any part of India respectively. 'Offence' is defined in Clause XVII of Section 3 as an act or omission punishable under the Act and includes a civil offence. Chapter IV comprising of Sections 34 to 70 deals with the offences. Sections 34 to 68 speak of the offence against the Act as well as the punishment for the said offence. Section 69 refers to the punishment that can be imposed on the person tried for committing any civil offence. Section 70 mentions to the civil offences not triable by Court Martial which reads as follows:
70. Civil offences not triable by Court Martial--A person subject to this Act who commits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be tried by a Court Martial, unless he commits any of the said offences--
(a) while on active service, or
(b) at any place outside India, or
(c) at a frontier post specified by the Central Government by notification in this behalf.
6. As per the scheme as enumerated above there are three classes of offences, namely, (a) offence committed by a person subject to the Act triable by a Court martial--Specified punishments are prescribed in respect of this category; (b) civil offences commied by such persons at any place in or beyond India but deemed to be offence committed under the Act and if charged Under Section 69 of the Act triable by a Court; and (c) offence of murder and culpable homicide not amounting to murder or rape committed by a person subject to the Act against a person not subject to military, navel or air force law save and except few exceptions those offences are not triable by an ordinary Criminal Court. Categorisation of offences and Tribunals brings in its train a conflict of jurisdiction. Some of the offences as eneumerated in Sections 34,35,36,37, 38, 39 etc. are exclusively triable by Court Martial. Whearas civil offence is also an offence under the Act or deemed to be an offence under the Act both the Courts, namely, an ordinary Criminal Court as well as the Court Martial will have a jurisdiction to try person committing the offence. The Legislature conceived of such a situation as will appear from Sections 125 and 126 of the Act which are reproduced below:
125. Choice between Criminal Court and Court Martial--When a Criminal Court and a Court Martial have each jurisdiction in respect of an offence it shell be in the discretion of the officer commanding the army, army cops division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which Court the proceedings shall be instituted before a Court Martial, to direct that the accused persons shall be detained in military custody.
126. power of Criminal Court to require delivery of offender--(1) When a Criminal Court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged offence, it may, by written notice. Require the officer referred to in Section 125 at his opinion, either to deliver over the offender to the nearest Magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Government.
7. As per the two provisions outlined above it is left to the discretion of the officer mentioned in Section 125 who decides first as to in which Court the proceeding shall be instituted. If the officer decides that that should be instituted before a Court Martial the accused person is to be detained in a military custody. When a Criminal Court having jurisdiction is of opinion that the said offence is to be tried by itself he may issue the requisite notices Under Section 126 either to deliver over the offender to the nearest Magistrate or to postpone the proceeding pending a reference to the Central Government. On receipt of the said requisition the officer may either deliver over the offender to the Court or refer to the question of proper Court for determination of the Central Government whose order shall be final. Section 127 of the Army Act conceives of successive trials by Court Martial and by Criminal Court in respect of the same offence.
8. The Act deals with the offence committed by Army personnel mentioned in Section 2 of the Act, creates new of offences with specified punishment, awards higher punishment to the existing offences and by fiction sanctions civil offences to be treated as an offence under the Act. The act also provides a machinery for resolving the conflict of jurisdiction. From the survey of the relevant provisions of the Act it also emerges that person committing other offences for which both the Court martial and the ordinary Criminal Courts have jurisdiction, in those cases also it must be tried by Court Martial if the offences are committed while the accused is in active service in or outside India or at the frontier post. The Legislature left it to discretion to have a Court Martial to the Army Authority keeping in mind the maintaince of discipline in the Army, nature of the offence etc. In doing so, the Legislature also took note of the exigencies of service. While creating the mechanism it also took note of the fact that trials in ordinary Criminal Courts are bound to take longer time on account of procedure for trials and consequential appeals and revisions etc. than trials of Court Martial. Sections 102, 103 speak of the anxiety of the Legislature for conducting a trial by the Court Martial with as much speed as possible.
9. Mr. Sarma, learned Senior Counsel appearing for the petitioner, however, put forward his argument by referring to the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'), more particularly to Sections 36 and 36A of the Act. The learned Counsel contended that the aforesaid Act is enacted by the Parliament to cancel the law relating to narcotic drugs to make stringent provision of regulation and operation relating to narcotic drugs and psychotropic substances and deal with such offences by a specially designated Court. Mr. Sarma referring to Section 36A contended that all offences under the Act are to be tried by the Special Court constituted for the purpose constituted for the area in which the offence has been committed. Since it a special statute creating special offences, such offences could have been only tried and adjudicated by the Special Court and not by the GCM. The argument of the learned Counsel, however overlooks the scheme of the Army Act as mentioned earlier. The jurisdiction for trial by Special Court arises on constitution of such Special Court Under Section 36 of the Act to try offences under the Act only by the Special Court constituted for the area. All offences mentioned in Section 36A are only to an offence under the NDPS Act. The petitioner herein was tried upon for committing a civil offence by a person subject to the military law. The Army Act which is also a special statute clearly confers jurisdiction on the Court Martial Authority to try and adjudicate the offence. The NDPS Act does not prohibit a trial of a person subject to military law for an offence created by the Army Act as well as the offence described as civil offence under the Act. The contention of Mr. Sarma in the circumstances, cannot be accepted. The contention of Mr. Sarma in the circumstances, cannot be accepted. The learned Senior Counsel Mr. Sarma took pain to refer to the material evidence on record does not support the finding of the Court Martial Authority. There is no grievance as well as the conduct of the trial by the GCM. The learned Senior Counsel could not point out any fault in the proceeding. There is also no challenge as to the composition as well as the procedure of the Court Martial. At the instance of the learned Senior Counsel for the petitioner I have myself looked to the evidence on record and on scrutiny of the materials on record it cannot be said that there is no legal evidence to justify the findings. It may also be pointed out that the Court Martial proceeding was subsequently confirmed and the confirming authority remitted the unexpired sentence of rigorous imprisonment for four years. The findings of the GCM holding the petitioner guilty on the first charge cannot be said to be perverse. The GCM fairly addressed its mind to the charges and in respect of charge No. 2 the authority found the petitioner not guilty. Therefore, the second ground of challenge also fails.
10. On overall consideration of all aspects of the matter I do not find any merit in this petition and accordingly the same is dismissed. There shall, however, be no order as to costs.