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SUPREME COURT OF INDIA
KRISHNA MURARI, AHSANUDDIN AMANULLAH, JJ.
B.S. Hari Commandant – Appellant
Versus
Union of India and Others – Respondents
Criminal Appeal No. 1890 of 2014
Decided On : 13-04-2023
(A) Border Security Force Act,1968 – Section 40 – Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 25 – Seizure of narcotic substance – Conviction and sentence – In absence of direct and cogent evidence against appellant, even if GSFC was convinced of appellant’s guilt, punishment handed out was too harsh, paying heed that appellant would, even then, be a first-time delinquent and not a habitual offender – Appellant has served country for over 31 ½ years without blame or blemish and has received various awards including medal from President of India – Appellant’s track record is otherwise unquestionable – A person cannot be deprived of pension de hors authority of law – There is no direct evidence against appellant – Search of appellant’s house did not lead to recovery of any incriminating material(s) – Non-recovery would enure to appellant’s benefit – High Court was not denuded of power to sift through evidence, even in a criminal writ petition – Conviction and sentence awarded by GSFC set aside – Appellant held entitled to full retiral benefits from date of his superannuation till date. (Paras 37, 38, 39, 46, 48 and 51)
(B) Constitution of India – Article 226 – Writ Jurisdiction – Article 226 of Constitution is a succour to remedy injustice and any limit on exercise of such power is only self-imposed – High Courts, under Constitutional scheme, are endowed with ability to issue prerogative writs to safeguard rights of citizens. (Para 50)
(C) Practice and Procedure – A Judgement should be coherent, systematic and logically organised – It is desirable that all Courts and Tribunals, as a matter of practice, number paragraphs in all Orders and Judgments in seriatim. (Paras 54 and 56)
Facts of the case:
Present criminal appeal is directed against Final Judgment and Order dated 19.02.2010 [2010 SCC OnLine P&H 2558] rendered by the High Court of Punjab and Haryana at Chandigarh dismissing Criminal Writ Petition No. 03 of 1997 preferred by appellant (original writ petitioner).
Findings of Court:
Secretary-General shall circulate this Judgment to the learned Registrars General of all High Courts, to place the same before Chief Justices, to consider adoption of a uniform format for Judgments and Orders, including paragraphing. Chief Justices may direct Courts and Tribunals subordinate to their High Courts accordingly as well.
Result : Criminal Appeal allowed.
JUDGMENT :
AHSANUDDIN AMANULLAH, J.
1. Heard learned counsel for the parties.
2. The present criminal appeal is directed against the Final Judgment and Order dated 19.02.2010 (hereinafter referred to as the “Impugned Judgment”) [2010 SCC Online P&H 2558] rendered by the High Court of Punjab and Haryana at Chandigarh dismissing Criminal Writ Petition No. 03 of 1997 (hereinafter referred to as the “High Court”) preferred by the appellant (original writ petitioner). Leave was granted vide Order dated 29.08.2014.
THE FACTUAL PRISM:
3. The appellant joined the Indian Army on 09.02.1964. He was absorbed as an Assistant Commandant in the Border Security Force (hereinafter referred to as the “Force”) on 04.06.1969. Thereafter, he was promoted to the post of Commandant in the Force as well as granted selection grade in the rank of Commandant. He was also awarded various medals, including the Police Medal in 1994 by Hon’ble the President of India for rendering about 30 years of unblemished service. Later, he was transferred to Punjab as Commandant of the 1956 Battalion (BN) (BSF) with Headquarters at Mamdot, Punjab.
4. On 05.04.1995, the local police conducted a search and a few Jerrycans of Acetic Anhydride, a controlled substance under Section 9A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “NDPS Act”), were stated to be located in Pakistani territory and in the fields owned by Indian civilians adjoining the order, for which First Information Report No. 92 dated 05.04.1995 i.e. on the same day, was lodged in Police Station Ferozepur, Punjab by the local police naming two persons viz. Lakhwinder Singh and Surjit Singh @ pahalwan as the accused showing them to be smugglers.
5. On 07.04.1995, the appellant was directed to hand over charge and move to the STC, the Force, Kharkan, where he was placed under arrest. However, search of the appellant’s house did not lead to any recovery of any incriminating materials.
6. On 09.04.1995, a one-man Staff Court of Inquiry was ordered into the incident headed by one Mr. V.K. Sharma. In the said Inquiry, Inspector Didar Singh, who was in actual and physical command and control of the area in the vicinity of which the alleged Jerrycans were recovered, is said to have made a statement that he was involved in the incident at the behest of the appellant.
7. On the basis of the Inquiry Report, the appellant was issued charge sheet dated 04.07.1995 under Sections 40 and 46 of the Border Security Force Act, 1968 (hereinafter referred to as the “BSF Act”). However, the charges, as laid aforesaid, were dropped.
8. Thereafter, the appellant superannuated on 31.08.1995 after rendering service in the Force for 31 years, 6 months and 22 days.
9. On 20.10.1995, a fresh charge sheet containing three charges was served on the appellant. Two charges were under Section 46 of the BSF Act for Civil offence committed in contravention of Section 25 of the NDPS Act and one charge under Section 40 of the BSF Act. Trial against the appellant commenced on 30.10.1995 by convening a General Security Force Court (hereinafter referred to as the “GSFC”).
10. The appellant, invoking Article 226 of the Constitution of India (hereinafter referred to as the “Constitution”) filed Writ Petition No. 16008 of 1995 before the High Court, against the rejection of his application questioning jurisdiction of the GSFC, which was dismissed on 18.01.1996.
11. Meanwhile, one accused alleged smuggler in FIR No. 92 dated 05.04.1995 (described supra), namely Surjit Singh @ Pahalwan, moved the High Court, by way of Criminal Miscellaneous No. 10562-M of 1996, seeking quashing of the FIR against him. The ground urged was that, on the date of alleged incident, Surjit Singh @ Pahalwan was lodged in the Central Jail, Amritsar and could not have been involved in the crime. The said petition was allowed vide order dated 01.11.1996.
12. On 10.04.1996, the GSFC gave its verdict, finding the appellant not guilty of the first c
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