Bhagirath Choudhary v. Border Security Force Through Director General

PRADEEP NANDRAJOG, J. (Oral)

¶1Rule DB.

¶2Rejoinder affidavit stated to have been filed by the petitioner yesterday is not on record, but copy thereof has been handed over by learned counsel in the court. The same has been considered.

¶3Heard for disposal.

¶4The petitioner was employed as a Constable under BSF on

22.02.1971 and earned promotion to the post of Lance Naik. He earned further promotions and ultimately became a Sub-Inspector.

¶5During his service under BSF, he was awarded three punishments on 30.05.1980, 06.01.1989 and 25.07.1994. Pursuant to the first punishment he was imprisoned for 10 days. The second punishment was a severe reprimand and the last punishment was a reprimand.

¶6A fourth incident took place on 29.12.2005, at about 19.30 Hrs., when the petitioner was performing duty of a Platoon Commander at BSF Fence, Gate No.16, at the Indo-Bangladesh Border. The Commandant noted hoof marks of cattle. It was detected that a large number of cattles were permitted to illegally cross-over from India to Bangladesh.

¶7As per record of the respondents produced in court today for our perusal, when confronted with the tainted evidence at the site, the petitioner made a confessional statement admitting that he permitted 130 cattle to cross-over from India to Bangladesh.

¶8Instances of smuggling at the Indo-Bangladesh Border, having assumed alarming proportions, the Commandant reported the matter to the higher authorities and under Rule 45(b) of the BSF Rules, 1969 a preliminary hearing was

conducted in which evidence was recorded and reduced in the form of a summary of record of evidence.

¶9The said proceedings indicted the petitioner, resulting in action being initiated under Rule 59 of the BSF Rules, 1969 i.e. the petitioner was directed to be tried by a General Security Force Court.

¶10In the proceedings conducted before the General Security Force Court, the procedure of law was followed, a charge was served upon the petitioner and he was granted full opportunity to participate in the proceedings.

¶11We note that in the writ petition no prayer is made pertaining to any alleged taint in the proceedings conducted by the General Security Force Court.

¶12The findings resulted in the guilt of the petitioner being established.

¶13BSF examined 10 witnesses. The petitioner did not lead any evidence in defence.

¶14An order dated 22.01.2008 was passed awarding six months' RI to the petitioner as also his being dismissed from service.

¶15Statutory remedies were availed by the petitioner with reference to the order dated 22.01.2008 which resulted in the authorities rejecting the petitions filed by the petitioner and hence the instant writ petition.

¶16A single point has been urged at the hearing of the writ petition; being that, the order dated 22.01.2008 being a composite order of imposing six months' RI and punishment of dismissal from service is contrary to law.

¶17Section 40 of the BSF Act, 1968 reads as under:- "40. Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and discipline of the Force shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned."

¶18Section 48 of the BSF Act, 1968 reads as under:-"48.(1) Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by Security Force Courts according to the scale following, that is to say:-

a) death; b) imprisonment which may be for the term of life or any other lesser term but excluding imprisonment for a term not exceeding three months in Force custody, c) dismissal from the service; d) imprisonment for a term not exceeding three months in Force custody; e) reduction to the ranks or to a lower rank or grade or place in this list of their rank in the case of a under-officer; f) forfeiture of seniority of rank and forfeiture of all or any part of the service for the purpose of promotion; g) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose; h) fine, in respect of civil offences;

i) severe reprimand or reprimand except in the case of persons below the rank of an under officer; j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active duty;

k) forfeiture in the case of person sentenced to dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such dismissal; l) stoppage of pay and allowance until any proved loss or damage occasioned by the offence for which he is convicted is made good.

(2) Each of the punishments specified in sub-section (1) shall be deemed to be inferior in degree to every punishment preceding it in the above scale."

¶19Suffice would it be to note that under Section 48(1)(c) of the Act punishment which may be inflicted in respect of an offence committed by a person subject to the Act upon being convicted at a General Security Force Court includes the penalty of dismissal from service.

¶20Section 50 of the BSF Act, 1968 reads as under:- "A sentence of a Security Force Court may award in addition to, or without any one other punishment, the punishment specified in clause

(c) of sub-Section (1) of section 48, and any one or more of the punishments specified in clauses

(e) to (1) (both inclusive) of that sub-section."

¶21It is apparent that by virtue of Section 50 of the Act, a sentence of a Security Force Court may award, in addition to, the punishment contemplated in clause (c) of sub-section (1) of section 48, and anyone or more of the punishments specified under the law.

¶22Thus, we find no infirmity in the action of the respondent.

¶23Before parting we once again note that no challenge has been made to the manner in which proceedings were conducted

before the General Security Force Court and the verdict of the guilt returned at the said proceedings.

¶24The writ petition is dismissed.

¶25No costs.

¶26Original record which has been produced for our perusal has been returned.

PRADEEP NANDRAJOG, J

SURESH KAIT, J OCTOBER 28, 2009 'nks'

i.5 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 28th October, 2009 + W.P.(C) 5989/2008 BHAGIRATH CHOUDHARY ..... Petitioner Through : Mr. Sanjeev Kumar, Advocate versus BORDER SECURITY FORCE THROUGH DIRECTOR GENERAL ..... Respondent Through : Mr. Yadunath Singh, Dy. Commandant. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SURESH KAIT 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? No. 3. Whether the judgment should be reported in the Digest? No.