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2023 (4) TMI 1261 - SC - Indian LawsRejection of application questioning jurisdiction of the GSFC - permission to take out 30 Jerrycans of 40 litres each of Acetic Anhydride from India to Pakistan through border fencing gate - HELD THAT - 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. 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. Article 226 of the Constitution is a succor to remedy injustice, and any limit on exercise of such power, is only self-imposed. Gainful reference can be made to, amongst others, A V Venkateswaran v Ramchand Sobhraj Wadhwani 1961 (4) TMI 83 - SUPREME COURT and U P State Sugar Corporation Ltd. v Kamal Swaroop Tandon 2008 (1) TMI 942 - SUPREME COURT . 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. The Impugned Judgement is quashed and set aside - the conviction and sentence awarded by the GSFC dated 10.04.1996 is also set aside - Appeal allowed.
Issues Involved:
1. Legality of the trial and conviction of the appellant under the Border Security Force Act and the Narcotic Drugs and Psychotropic Substances Act. 2. Proportionality of the punishment awarded to the appellant. 3. Withholding of pension and other retiral benefits of the appellant. Summary: 1. Legality of the Trial and Conviction: The appellant was tried and convicted by the General Security Force Court (GSFC) under Sections 40 and 46 of the Border Security Force Act (BSF Act) and Section 25 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). The appellant contended that the trial was a nullity as the BSF Act does not envisage the GSFC trying offences under the NDPS Act and that the requisite sanction from the Central Government was not obtained as required under Section 59(3) of the NDPS Act. Additionally, the appellant argued that the second charge sheet issued was illegal and contravened Rule 102 of the BSF Rules, 1969. The Supreme Court noted procedural deficiencies but chose not to delve into them, leaving those questions of law open for future adjudication. 2. Proportionality of the Punishment: The appellant was sentenced to 10 years of rigorous imprisonment, a fine of Rs. 1,00,000, and dismissal from service. The Supreme Court found the punishment to be disproportionate considering the appellant's unblemished service record of over 31 years and the lack of direct evidence against him. The Court emphasized the principle of proportionality, citing various precedents that penalties must be commensurate with the gravity of the misconduct. The Court concluded that even if there was some semblance of truth in the allegations, the punishment meted out was too harsh and not justified. 3. Withholding of Pension and Other Retiral Benefits: The appellant argued that withholding his pension, gratuity, and other benefits was illegal as he had already superannuated before the issuance of the charge sheet. The Supreme Court agreed, citing settled law that a person cannot be deprived of pension without the authority of law. The Court referenced decisions like State of Jharkhand v Jitendra Kumar Srivastava and Veena Pandey v Union of India, which held that pension is a hard-earned benefit and cannot be withheld arbitrarily. Conclusion: The Supreme Court allowed the criminal appeal, setting aside the impugned judgment and the conviction and sentence awarded by the GSFC. The appellant was held entitled to full retiral benefits from the date of his superannuation. The Court directed that all due payments be processed and made within twelve weeks. Additional Directions: The Court emphasized the need for all judgments and orders to be numbered paragraph-wise for coherence and ease of reference. The Secretary-General was directed to circulate this judgment to all High Courts for consideration of adopting a uniform format for judgments and orders, including paragraphing.
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