J.P. Singh, J.
1. Convicted for an offence under Section 13(1)(e) of Prevention of Corruption Act, 1988, punishable under Section 13(2) of the said Act and sentenced to dismissal from service, and rigorous imprisonment for one year, Subedar Nawab Khan of 5th Battalion, Border Security Force, approached this Court in SWP No. 482/2000 but remained unsuccessful. He has approached this Court again in original side appeal (LPASW No. 02/2006) questioning the judgment of the writ Court, his conviction and sentence, on a short ground, that his trial by the General Security Force Court is vitiated because of flagrant violation of Border Security Force Act and Border Security Force Rules, hereinafter referred as Act and Rules respectively.
2. Mrs. Surinder Kour, learned Counsel for the appellant, submits that appellant was denied opportunity of hearing and producing evidence by the Commandant before directing his trial by the General Security Force Court on a charge under Section 13(1)(e) of the Prevention of Corruption Act, 1988. According to the learned Counsel, opportunity of hearing including leading of evidence provided by the Commandant to the appellant on a different charge alleging infraction of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, would not constitute hearing and providing opportunity of leading evidence as contemplated by Rule 45(b) of the Rules, which asserts the learned Counsel, are mandatory in nature, infraction whereof would render the subsequent trial by the General Security Force Court, illegal. She refers to 'Union of India and Ors. v. Dev Singh' reported as Military Law Journal 2003 SC 146; 'Union of India and Ors. v. B.N. Jha reported as 2003 AIR SCW 1863; and 'G.S. Sandhu v. Union of India' reported as 2001 (4) SCT 860.
3. Sh. Ajay Sharma, learned Counsel appearing for the Union, submits that the trial conducted by the General Security Force Court is in accordance with law and no such prejudice has been caused to the appellant, which may entail quashing of the trial and findings of the General Security Force Court. Sh. Sharma submits that appellant had been provided opportunity, as contemplated by the Rules, to urge if there was any violation of the Rules, preceding the commencement of the trial, but he had not availed of the opportunity and proceeded to take the trial whereafter he cannot be heard to complain of any prejudice. Learned Counsel further submits that no opportunity of hearing or leading the evidence is contemplated by the Rules when the basic allegations remain the same and there is only change in the description and nomenclature of the offence on which the competent authority decides to hold the trial of an accused on an offence falling in the definition of the offence other than the one on which the ROE is ordered. Learned Counsel refers to 'Flying Officer S. Sundarajan v. Union of India and Ors.' reported as ; 'Union of India and Ors. v. Major A. Hussain (IC-14827)' reported as ; 'Union of India and Ors. v. Naik Subedar Baleshwar Ram and Ors.' reported as ; and 'Major G.S. Sodhi v. Union of India and Lt. Col. S. Duggal v. The Chief of Army Staff reported as . Sh Sharma placed the records of the General Security Force Court proceedings as also the records of the competent authority for perusal.
4. We have considered the submissions of learned Counsel for the parties, judgment of the writ Court and gone through the proceedings of the competent authority and the General Security Force Court.
5. First issue, which falls for consideration, is as to what is the nature of allegations/charge in the two charge-sheets, which the learned Counsel for the appellant terms as different charge-sheets and the counsel for the Union describes as one charge resting on same allegations.
6. We will first notice first tentative charge on which hearing is admitted by the parties to have been provided to the appellant. This charge reads, thus:
APPENDIX VI
RULE 53(2)
CHARGE SHEET
The accused No. 870021695 Subedar Nawab Khan of 5 BN BSF, is charged with:
BSF ACT 1968, SECTION 46 : COMMITTING A CIVIL
OFFENCE, THAT IS TO SAY ABETTING THE
SMUGGLING OF GOODS, PUNISHABLE UNDER SECTION 3 OF
CONSERVATION OF FOREIGN EXCHANGE AND
PREVENTION OF SMUGGLING ACTIVITIES Act 1974.
in that he,
while posted in 'B' Coy Radhanagar, since 1st Mar' 97 as Coy 2I/C and acted as Off. Coy Commander, abetted smugglers for smuggling of goods to Bangladesh and collected Rs. 74000/- illegally from Mar to JuF 97 and remitted this amount to his relatives by various Demand drafts from SBI Belonis and SBI, Sonamura through No. 85102970 LNK Veer Bhadrappa and No. 90193186 Const Sushil Choudhary. Sd/-(MOHANDASS PREM)Place: Gokulnagar, Tripura (W) COMMANDANTDated the 30 Sept '97. 5 BN BSF30 Sept'97.
7. We will now notice the second charge-sheet on which the appellant has been convicted and sentenced. Second charge reads, thus:
BSF ACT COMMITTING A CIVIL OFFENCE, THAT IS SECTION 46 TO SAY CRIMINAL CONDUCT FOR HAVING BEEN A PUBLIC SERVANT, IN POSSESSION OF PECUNIARY RESOURCES, DISPROPORTIONATE TO HIS KNOWN SOURCES OF INCOME, FOR WHICH HE CAN NOT SATISFACTORILY ACCOUNT FOR, AN OFFENCE SPECIFIED IN SECTION 13(1)(e) OF PREVENTION OF CORRUPTION ACT 1988, PUNISHABLE Under Section 13(2) OF THE SAID ACT. In that he,
Between Jan 1997 and July 1997, was found in possession of assets worth Rs. 79,495/- (Rupees seventy nine thousand four hundred and ninety five) only disproportionate to his known sources of income which he could not satisfactorily account for.
8. We have examined the allegations appearing in both these charge-sheets. Whereas in the first charge, it is alleged that appellant while posted in 'B' Company Radhanagar, since 01.03.1997 as Company 2I/C and acting as Officiating Company Commander, he abetted smugglers for smuggling of goods to Bangladesh and collected rupees seventy four thousand illegally from March to July, 1997 and remitted this amount to his relatives by various demand drafts from SBI Belonis and SBI Sonamura through LNK Veer Bhadrappa and Const Sushil Choudhary. The second charge alleges him to have been found in possession of assets worth rupees seventy nine thousand four hundred ninety five only, between January, 1997 and July, 1997, which are alleged to be disproportionate to his known source of income, which he could not satisfactorily account for.
9. Major offence with which the appellant stands charged in both the charge-sheets is Section 46 of the Act whereas the first charge-sheet indicates violation of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, and the second charge indicates violation of Section 13(2) of Prevention of Corruption Act, 1988, though the sub-stratum of allegations in both the charges is same.
10. Allegations in the two charge-sheets, in our opinion, are based on similar facts though indicating infraction of two penal provisions of law i.e. (i) Section 3 of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974; and (ii) Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988.
11. During the record of evidence pursuant to hearing provided to the appellant under Rule 45(b) of the Border Security Force Rules, the appellant was aware of these allegations.
12. These two charge-sheets, thus, cannot, in our view, be termed as two different charges as urged by Mrs. Surinder Kour. Judgments cited by learned Counsel do not deal with this issue, whereas judgment cited by Sh. Ajay Sharma, i.e. 'Union of India and Ors. v. Naik Subedar Baleshwar Ram and Ors. reported as , supports the view which we are taking in this case of holding that there was no difference in the basic allegations in the two charge-sheets. It hardly needs to be emphasized that in both the charge-sheets the basic offence remains as Section 46 of the Act, which prescribes punishment for the commission of civil offence, which includes the infraction of both Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, and Prevention of Corruption Act, 1988. The first plea raised by Mrs. Kour that appellant was entitled to hearing because the two charge-sheets were different, thus, is untenable because we do not accept as correct her submission that allegations in the two charge-sheets were dissimilar.
13. Mrs. Kour submits that Rule 45(b) of the Rules is mandatory and violation of the Rule would vitiate the trial held by the General Security Force Court. Her reliance is on 'Union of India and Ors. v. B.N. Jha' reported as 2003 AIR SCW 1863. We have gone through the judgment cited by learned Counsel but find that even after conceding Rule 45(b) to be mandatory in character, we are unable to accept the contention of learned Counsel that the Rule has any application to the facts of the present case because Rule 45(b) stands fully complied with in the case in hand when the appellant had been afforded opportunity of hearing and leading evidence at the time when he was heard by the Commanding Officer before directing recording of the evidence on the charge. We dismiss the plea raised by Mrs. Kour that the first charge had not been substantiated after recording of evidence was completed and it was for this reason that the second charge was introduced by the Convening Authority. We have gone through the minutes of the proceedings as also the statutory legal advice of the Law Officer who, on the basis of existing evidence had advised the Convening Authority to consider framing of a charge which was warranted on the recorded evidence.
14. The charge on which the appellant has been tried being a charge, not different than the earlier charge, there was no occasion for providing another opportunity to the appellant either by the Commanding Officer or by the competent authority in directing his trial while exercising jurisdiction and authority under Section 59 on the advice of the Law Officer, which institution is provided by the Border Security Force Act and Rules framed thereunder to ensure that provisions of law and rules are properly followed before exercising powers by the authorities constituted under the Act and Rules. The appellant cannot, thus, be said to have been prejudiced in any manner whatsoever which prejudice may entail vitiation of General Security Force Court proceedings.
15. While going through the General Security Force Court proceedings, we noticed that similar point was raised by the appellant before the General Security Force Court, which was deliberated upon by the Court after hearing the prosecutor and the defence lawyer engaged by the appellant during the trial of the case. The General Security Force Court ruled against the appellant. The General Security Force Court and the writ Court have concurrently held the allegations appearing in the two charge-sheets to be similar.
16. After examining the whole gamut of the controversy and the facts on records, we are inclined to concur with the findings of two Courts because we do not find any material on records to take a view different than the one taken by the writ Court. The appellant does not appear to have been prejudiced in any manner whatsoever. He has been provided all opportunities to which he is entitled under Rules during the trial of the case by the General Security Force Court, which has held him guilty and punished with dismissal from service and one year imprisonment. We, thus, do not find any merit in the appellant's appeal, which is, accordingly, dismissed.