CONST TANVEER AHMED KHAN Vs. UOI

JUDGEMENT

(1.) PERTAINING to an incident of cattle crossing from the territory of India to Bangladesh at BOP Lal Bazaar the Commandant of the 46th Bn. BSF took cognizance of the offence report and reduced the allegation to writing in the form set out in Appendix VI of the BSF Rules 1969 i.e. drew out a charge sheet against the petitioners and on 29.7.2007, Rakesh Chauhan 2-IC functioning as the Commandant in the absence of the Commandant 46th Bn BSF ordered Pawan Kumar Asst. Commandant 46th Bn. BSF to prepare the Record of Evidence. In pursuance of the said order, Record of Evidence was prepared by Pawan Kumar and 4 prosecution witnesses were examined in the presence of the petitioners who were given an opportunity to cross- examine the witnesses, which opportunity they declined to avail and thus no witness was cross-examined.

(2.) INSP.Gopal Ram PW-1 deposed that he had been informed through his source/contacts that smuggling was facilitated in some areas falling under BOP Lal Bazaar on the days when the weather was bad i.e. rainy/cloudy. He was keeping surveillance in that area. On 28th July 2007, he informed Abhimanyu Jha (DC), Coy Commander that as the weather was bad on that day there were chances of smuggling taking place in that area and thus the need to be vigilant. At about 19:00 hours, he along with Ct.Ram Sagar left from Bara Mircha Bazaar on cycles through a katcha (jagged) track which leads to Gitaldah Barah Mircha Fence Gate No.1 of BOP Lal Bazaar. On reaching Border Track near Gate No.1 of BOP Lal Bazaar approx.100 meters away from culvert No.75/93 near BP No. 903/105, he heard sounds as if something was moving in the water. He shouted and immediately ran towards the culvert side. Halfway, he saw Ct.Ajay Kumar i.e. petitioner No.2. He told him to check as to what was happening on the culvert side. On reaching at the culvert he saw that 8-10 civilians with 15-20 calves were going towards the village Gitaldah Bara Mircha. He heard sounds indicative of something moving through the water towards Border side but due to bamboo bushes and Nala (drain) he could not see anything. After 4-5 minutes Ct.Tanveer Ahmed petitioner No.1 who was standing approx.150 meter away from the culvert towards BOP Bara Mircha on border track reached at the spot. He questioned Ct.Tanveer Ahmed and Ct.Ajay kumar as to who was Patrol Commander and who was on duty at this location. Both of them told him that they were on duty in that area. Then with help of torch light he conducted search in that area and had found that one bamboo made phhata (plank) was inserted between the fences ahead the culvert to facilitate the smuggling. He noticed that one calf was trapped between the fences. He told Ct.Tanveer Ahmed and Ct.Ajay Kumar to pull the calf out. He then asked both the constables for an explanation. They told him that they were not involved, and took the plea that villagers take advantage of bad weather and heavy rain to do smuggling. But both of them accepted that they acted negligently while on duty. Then he asked Ct.Tanveer Ahmed to call the Post Commander of BOP Lal Bazaar at this location. In the mean time A.JHA (DC), Coy Commander reached at the place of incident. He reported the whole incident to Coy Commander. After some time SI Inder Mohan Singh, Post commander of BOP Lal Bazaar also reached there. Coy Commander gave the report about the incident to Commandant on mobile. At about 22:00 hours both the constables were brought to Coy HQ at BOP Bara Mircha by Coy Commander. A.Jha (DC), Coy Commander enquired from both the constables about the incident and they both confessed about conniving with smugglers and giving them safe passage for smuggling.

(3.) ABHIMANYU Jha DC PW-4 deposed that the area of responsibility of ,,BCoy is from BOP Nauhati to BOP Lal Bazaar with BOP Bara Mircha as Coy HQ. He stated that although the Coy was effectively guarding the border, recently some report were coming about smuggling activities in the areas falling under BOP Lal Bazaar during bad rainy weather. Due to which he along with "G" staff of Bara Mircha was keeping a track in general area. On 28.7.2007, Insp.Gopal Ram (PW-1) told him that smuggling may took place in the night as the weather was bad on that day. At about 19:00 hours he moved towards BOP Nauhati area and after a brief halt, he headed towards BOP Lal Bazaar Area. At about 20:00 hours he reached at culvert No.75/93 which falls in area of responsibility of BOP Lal Bazaar, Naka Patrol Pt. No.3 near BP No.903/105. Ct. Tanveer Ahmed and Ct.Ajay kumar were on duty in that area from18:00 hours to 24:00 hours. Both of them looked as if they had been caught red handed. Insp.Gopal Ram was standing near the culvert. He saw a phatta (plank) made of bamboo was inserted between the fences and a seized calf with minor scratches. He enquired about the incident and Insp.Gopal Ram told him that he reached there about 5-10 minutes earlier and told him i.e. Abimanyu Jha, DC about the whole incident as he deposed in his testimony as PW-1. In the mean time SI Inder Mohan Singh Post Commander BOP Lal Bazaar also reached at the place of incident. Then he brought both accused persons to BOP Bara Mircha. Their physical search was conducted but no money had been recovered. He again questioned them and both of them pleaded that they were innocent and do not know anything in this regard. But after continuous questioning they confessed about their connivance with the smugglers and for giving them safe passage for carrying out smuggling. They confessed that 5 pair of calves at the rate of `300/- per pair were to be smuggled. Also, both of them gave in writing about the incident. The said letters are attached with the ROE proceedings as Exhibit ,,A and ,,B. After that he had reported the whole incident to Commandant 46th Bn BSF.