The Supreme Court recently reversed a Punjab and Haryana High Court decision that upheld the conviction of an ex-BSF commander under various provisions of the BSF Act and the NDPS Act, citing a lack of direct and compelling evidence against him.
A division bench of Justice Krishna Murari and Justice Ahsanuddin Amanullah made the following observations:
“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, in our considered view, was disproportionate.”
BS Hari, the appellant, was the Commandant of the 1956 Battalion (BN) (BSF) with headquarters in Mamdot, Punjab. On April 5, 1995, local police conducted a search and discovered a few Jerrycans of Acetic Anhydrid, a controlled substance under Section 9A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the “NDPS Act”)—in Pakistani territory and fields owned by Indian civilians adjoining the border.
The local police filed a FIR in Police Station Ferozepur, Punjab, naming two people as the accused, Lakhwinder Singh and Surjit Singh @ pahalwan, and showing them to be smugglers.
On April 7, 1995, the appellant was arrested. However, no incriminating material was discovered during the search of the appellant’s home.
On April 9, 1995, an Inquiry was held, which revealed that one Inspector Didar Singh, who was in actual and physical command and control of the area where the alleged Jerrycans were discovered, testified that he was involved in the incident at the request of the appellant.
On July 4, 1995, the appellant was charged under Section 40 (Violation of good order and discipline) and Section 46 (Civil offences) of the Border Security Force Act, 1968 (BSF Act), which were later dropped.
On October 20, 1995, a new charge sheet was filed, which included two charges under Section 46 of the BSF Act for Civil offence committed in violation of Section 25 of the NDPS Act (Punishment for allowing premises, etc., to be used for commission of an offence) and one charge under Section 40 of the BSF Act.
Meanwhile, the appellant retired on August 31, 1995, after 31 years, 6 months, and 22 days of service in the Force.
On April 10, 1996, the General Security Force Court (GSFC) convicted the appellant and sentenced him to ten years rigorous imprisonment, imposed fine of Rs. 1 lakh and dismissed him from service.
On November 2, 1996, the appellant filed a statutory petition with the relevant authority, which was denied.
The appellant filed a Criminal Writ Petition before the Punjab & Haryana High Court seeking to vacate his trial and the impugned order, as well as directions to vacate all subsequent orders and release his pensionary and other benefits.
Meanwhile, in the absence of evidence, the learned Trial Court discharged the other co-accused, Lakhwinder Singh.
The High Court dismissed the Writ Petition, which was appealed to the Supreme Court.
The counsel for the appellant argued before the Supreme Court that the charge against the appellant of knowingly allowing Lakhwinder Singh to take out 30 Jerrycans of 40 litres each of Acetic Anhydride from India to Pakistan through border fencing gate No. 205 of BOP Barrake under his control on the intervening night of March 9/10, 1995, was not proven against the appellant.
It was also argued that because two other co-accused persons who were said to have taken away the Jerrycans had been granted relief in the case, the case against the appellant was automatically dismissed.
The appellant’s counsel also contended that the sentence of dismissal from service was also illegal because the appellant retired prior to the issuance of the charge sheet in question, and thus no sentence of dismissal from service could be imposed under Rule 166 of the BSF Rules, 1969 (the Rules), which states that the sentence of dismissal shall take effect from the date of promulgation of such sentence or from any subsequent date specified at the time of sentence issuance.
On the issue of withholding the appellant’s pension, gratuity, and other benefits, it was argued that because he had already superannuated on August 31, 1995, the Force lacked the authority to do so.
The Court noted, citing its various decisions, that in the Union’s armed forces, including paramilitary forces, utmost discipline and unity of command are the sine qua non, but the doctrine of proportionality still rules the day.
The Court held that convicting the appellant solely on the basis of Subedar Didar Singh’s statement – who was said to have confessed to his involvement in the incident at the behest and direction of the appellant – was wholly unjustified.
As a result, the Court reversed the Punjab and Haryana High Court’s judgment and order, as well as the GSFC’s conviction and sentence.
