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TMI Blog2023 (4) TMI 1261X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Krishna Murari And A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from India to Pakistan through border fencing gate No. 205 of BOP Barrake under his control, the same was not proved against the appellant. 19. However, the learned counsel for the appellant submitted that Charge No. 2, which was identical though the date(s) were 4/5th April, 1995, of having knowingly permitted the two smugglers to take out 44 Jerrycans of 40 litres each of Acetic Anhydride from India to Pakistan from Border fencing gate No. 205 of BOP Barake, under his control has been held to be proved by the GSFC, is clearly unsustainable as one accused Surjit Singh @ Pahalwan was given relief by the High Court by quashing the FIR against him on the ground that he was lodged in Central Jail, Amritsar on the said date(s), and the other co-accused Lakhwinder Singh was also discharged by the trial court itself in the absence of any evidence. Thus, according to learned counsel, two persons, stated to have taken away the Jerrycans having themselves been let off, the case against the appellant automatically fails. As far as Charge No. 3, of knowingly acting prejudicial to good order and discipline of the Force during his tenure as Commandant at Mamdot between November, 1994 and Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heet under the BSF Act and the Rules. It was submitted that the Rules specifically provide for amendment of the charge sheet i.e., addition, omission or alteration in the charge by the GSFC; whereas in the instant case, an entirely new charge sheet had been issued by the Additional DIG which tantamounted to, in effect, a second trial which is prohibited under Section 75 of the BSF Act. 21. On the point of withholding the appellant's pension, gratuity and other benefits, it was submitted that having already superannuated on 31.08.1995, there was no authority vested in the Force to withhold the same and due to such arrogant and arbitrary action, the appellant, now aged about 82 years and having superannuated about almost 28 years back, is in a very poor financial condition and is unable to sustain himself, having no means for his daily needs and medical expenses. 22. Learned counsel submitted that neither the BSF Act nor the Rules envision withholding pension, gratuity, leave encashment and other dues/benefits of any retiree, after retirement without there being a specific order under Section 48(1)(k) 48(1)(l) of the BSF Act, which in the present case has admittedly, not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was tried by the GSFC and awarded sentence of rigorous imprisonment for 45 days in force custody. It was contended that the appellant cannot derive benefit from the discharge of the two purported smugglers as they were charged with the offence of placing the contraband substance on the spot from where it was recovered, while the appellant was charged under Section 25 of the NDPS Act. It was submitted that the contraband items could not have been taken outside the area controlled by the Force, which was under the overall control of the appellant, to the Pakistani side without it having passed through the gates which were manned by the personnel of the Force. Further, it was submitted that Surjit Singh @ Pahalwan was given relief by quashing the FIR concerned, as he was able to establish his incarceration in jail on the date of the incident. 28. Learned counsel submitted that as per the secret information received by the appellant, the Jerrycans of Acetic Anhydride were placed near the international borders by the two smugglers with the help of the officials of the Force and even if the said two persons were the lead perpetrators, the role of the appellant and other officers/pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onduct would be violative of Article 14 of the Constitution. (emphasis supplied) 34. In Ranjit Thakur v Union of India, (1987) 4 SCC 611, this Court, in the circumstances therein, commented, at paragraph no. 27, that: the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review. . 35. In Andhra Pradesh Industrial Infrastructure Corporation Limited v S N Raj Kumar, (2018) 6 SCC 410, this Court exposited: 20. In the realm of Administrative Law proportionality is a principle where the court is concerned with the process, method or manner in which the decision-maker has ordered his priorities and reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise the elaboration of a rule of permissible priorities [Union of India v. G. Ganayutham, (1997) 7 SCC 463: 1997 SCC (L S) 1806]. De Smith [Judicial Review of Administrative Action (1995), para 13.085, pp. 601-605; s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 42. Illustratively, it would not be out of place to draw an analogy from a situation where a crime occurs under the jurisdiction of the Superintendent of Police and in the criminal proceedings emanating therefrom, some police personnel are held guilty, and thereafter, a criminal case as also departmental proceedings, based on such acts of commissions or omissions, is opened against the said Superintendent of Police, on the premise that such incident transpired under his overall watch and control. This would be an extreme and absurd extension of the principle of dereliction of duty and/or active connivance, in the absence of overwhelming material establishing guilt, or at the very least, negating the probability of his innocence. 43. This Court would hasten to add that it should not be construed that the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed) 45. As emphasised hereinbefore, save and except Subedar Didar Singh 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. 46. This Court is mindful that 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. 47. While declining to consider the plea raised of insufficiency of evidence, the learned Single Bench, at page 13 (of 19) of the Impugned Judgment, has commented: The finding by a Security Force Court on the basis of appreciation of evidence would be beyond the purview of a writ Court as has been consistently held by various Courts including the Hon ble Supreme Court. 48. The High Court ought to have been cognizant that, considering the seriousness of the issue(s) raised, it was not denuded of the power to sift through the evidence, even in a criminal writ petition. This Court in Nawab Shaqaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it did not involve navigating a factual minefield. 51. For reasons aforenoted, this criminal appeal succeeds and stands allowed. Consequently, (a) the Impugned Judgement is quashed and set aside, and; (b) the conviction and sentence awarded by the GSFC dated 10.04.1996 is also set aside. The appellant is held entitled to full retiral benefits from the date of his superannuation till date. All payments due to him be processed and made within twelve weeks from today, albeit after adjusting amount(s), if any, already paid. 52. Costs made easy. ADDITIONAL DIRECTIONS: 53. The Impugned Judgment annexed in the paperbook is a certified copy obtained from the High Court. However, it is not numbered paragraph-wise. 54. In Shakuntala Shukla v State of Uttar Pradesh, 2021 SCC OnLine SC 672, this Court had the occasion to observe: 35. A judgement should be coherent, systematic and logically organised . 55. Likewise, in State Bank of India v Ajay Kumar Sood, 2022 SCC OnLine SC 1067, this Court opined: 21. It is also useful for all judgments to carry paragraph numbers as it allows for ease of reference and enhances the structure, improving the readability ..... X X X X Extracts X X X X X X X X Extracts X X X X
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