Border Security Force Act, 1968 – Appellant-Commandant in Border Security Force was sentenced to 10 years’ rigorous imprisonment; imposed fine of Rs. 1,00,000/- and dismissed from service for allegedly permitting smuggling of contraband goods from India to Pakistan from Border fencing gate under his control – Held: Though in the armed forces, including the paramilitary forces, utmost discipline, unity of command are the sine qua non, the doctrine of proportionality still holds the field – In the present case, there is no direct evidence against the appellant – Except the statement of the Subedar (who was the actual in-charge of the area where the activity allegedly occurred) roping in the appellant, there is no material against him – Statement of a single person alone, ought not to have resulted in his conviction without other material(s) incriminating him or pointing to his guilt – Thus, in the absence of direct and cogent evidence against the appellant, even if the General Security Force Court (GSFC) was convinced of his guilt, the punishment handed out was too harsh and disproportionate – Appellant was a first-time delinquent and not a habitual offender – Moreover, the appellant has served the country for over 31½ years without blame or blemish and received various awards including medal from Hon’ble the President of India – His track record is otherwise unquestionable – Impugned judgment of High Court set aside – Conviction and sentence awarded by the GSFC set aside – Appellant entitled to full retiral benefits from the date of superannuation till date – Narcotic Drugs and Psychotropic Substances Act, 1985 – Doctrine of Proportionality – Armed Forces.
Constitution of India – Article 226:
Criminal writ petitions – Power of High Courts to sift through evidence – Discussed.
Limit on exercise of power – Held: Art.226 is a succour to remedy injustice and any limit on exercise of such power is only self-imposed.
Judgments/Orders – Paragraph-wise numbering in – Held: It is desirable that all Courts and Tribunals, as a matter of practice, number paragraphs in all Orders and Judgments in seriatim – Hon’ble Chief Justices of High Courts to consider adoption of a uniform format for Judgments and Orders, including paragraphing and accordingly direct the Courts and Tribunals subordinate to their High Courts – Directions by Supreme Court.
Allowing the appeal, the Court
HELD: 1.1 In the armed forces of the Union, including the paramilitary forces, utmost discipline, unity of command et al are the sine qua non. That said, the doctrine of proportionality still holds the field. In the absence of direct and cogent evidence against the appellant, even if the GSFC was convinced of the appellant’s guilt, the punishment handed out was too harsh, paying heed that the appellant would, even then, be a first-time delinquent, and not a habitual offender. Arguendo, that there be some semblance of truth in the allegations, the punishment meted out was disproportionate. [Paras 36, 37][442-H; 443-A-B]
1.2 The appellant has served the country for over 31 ½ years without blame or blemish, and has received various awards, inter alia, including medal from Hon’ble the President of India. The appellant’s track record is otherwise unquestionable. On the alleged criminality, the undisputed and uncontroverted fact remains that the appellant was commanding the Force operating over a large area, including from where the Jerrycans allegedly moved from the Indian side to the Pakistani side. However, it is equally not in dispute that the actual manning of the area is by the subordinate personnel of the Force. In the present instance, the subordinate personnel have been adjudged guilty, indicating their active involvement. Being the persons on the spot, it was their primary responsibility to ensure that no crimes/offences/questionable incidents took place on their watch. Moreover, there is no direct evidence against the appellant. [Paras 38, 41][443-C, E-G]
1.3 Save and except Subedar DS’s statement, roping in the appellant, there is no material against him. Hence, ceteris paribus, without other material(s) incriminating the appellant or pointing to his guilt, the statement of a single person alone, ought not to have, in this instance, resulted in his conviction. At the proximate time, the search of the appellant’s house, did not result in recovery of any incriminating documents/articles. Such non-recovery would obviously enure to the appellant’s benefit. [Paras 45, 46][445-CD]
1.4 Article 226 of the Constitution is a succour to remedy injustice, and any limit on exercise of such power, is only selfimposed. The High Courts, under the Constitutional scheme, are endowed with the ability to issue prerogative writs to safeguard rights of citizens. For exactly this reason, this Court has never laid down any strait-jacket principles that can be said to have “cribbed, cabined and confined” the extraordinary powers vested under Articles 226 or 227 of the Constitution. This was a fit case for the High Court to have examined the matter threadbare, more so, when it did not involve navigating a factual minefield. The Impugned Judgement is quashed and set aside. The conviction and sentence awarded by the GSFC is also set aside. The appellant is held entitled to full retiral benefits from the date of his superannuation till date. [Paras 50, 51][446-E-H; 447-A]
E P Royappa v State of Tamil Nadu AIR 1974 SC 555 : [1974] 2 SCR 348 – followed.
Mohd. Jamiludin Nasir v State of West Bengal (2014) 7 SCC 443 : [2014] 14 SCR 1; Nawab Shaqafath Ali Khan v Nawab Imdad Jah Bahadur (2009) 5 SCC 162 : [2009] 4 SCR 589; Surya Dev Rai v Ram Chander Rai (2003) 6 SCC 675 : [2003] 2 Suppl. SCR 290; A V Venkateswaran v Ramchand Sobhraj Wadhwani (1962)
1 SCR 573; U P State Sugar Corporation Ltd. v Kamal Swaroop Tandon (2008) 2 SCC 41 : [2008] 1 SCR 887; Shakuntala Shukla v State of Uttar Pradesh 2021 SCC OnLine SC 672; State Bank of India v Ajay Kumar Sood 2022 SCC OnLine SC 1067 – relied on.
State of Jharkhand v Jitendra Kumar Srivastava (2013)
12 SCC 210 : [2013] 8 SCR 177; Veena Pandey v Union of India (2022) 2 SCC 379; Council of Civil Service Unions v Minister for the Civil Service [1984]
3 WLR 1174 (HL); Bhagat Ram v State of Himachal Pradesh (1983) 2 SCC 442; Ranjit Thakur v Union of India (1987) 4 SCC 611 : [1988] 1 SCR 512; Andhra Pradesh Industrial Infrastructure Corporation Limited v S N Raj Kumar (2018) 6 SCC 410 : [2018] 3 SCR 455; D S Nakara v Union of India (1983) 1 SCC 305 : [1983] 2 SCR 165; State of West Bengal v Haresh C Banerjee (2006) 7 SCC 651 : [2006] 5 Suppl. SCR 620; Dr Hira Lal v State of Bihar (2020) 4 SCC 346 : [2020] 2 SCR 907; Radhey Shyam v Chhabi Nath
(2015) 5 SCC 423 : [2015] 3 SCR 197 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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