EX CONST UMESH PRASAD Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner joined BSF as a constable in the year 1990, and was attached to the 79th Bn. as on January 9, 1999. He was a part of ,,C Coy of the battalion, which was posted at Border Out Post (BOP) Chainagar.

(2.) IT is not in dispute that on January 9, 1999, the petitioner was assigned sentry duty at gate No.2 of the BOP from 06:30 hours to 12:00 hours. Insp.Mukund Singh, along with Ct.Ashok Kumar was patrolling the area from gate No.5 to gate No.2. The two claim that as they approached gate No.2, they took a hidden position in a nearby bamboo grove in order to detect any suspicious movement. That at around 07:30 hours, a man entered gate No.2 bringing along some goods. He was followed by another man carrying a net. A few other persons also entered. Insp.Mukund Singh and Ct.Ashok Kumar claim that they emerged from the hidden spot and started shouting ,,Pakro, Pakro, whereupon the said persons, whom Insp.Mukund Singh and Ct.Ashok Kumar claim to be smugglers, turned tail and ran in different directions and in spite of being pursued, managed to run away. 36 ploughs, a 1500 meter net and an old bicycle were seized. 2-I/C Sanjeev Bhanot was informed who apparently interrogated the petitioner and recorded a confession that for an illegal gratification in sum of Rs.400/- the petitioner had permitted the smugglers to bring into the territory of India from Bangladesh the seized goods.

(3.) AS per the record, two days later i.e. on January 11, 1999, the Commandant of the Battalion took cognizance of the Offence Report and after hearing the petitioner ordered Dy.Comdt.B.B.Gusain to prepare Record of Evidence (ROE) on the charge of the petitioner having committed an offence under Section 40 of the BSF Act, 1968 i.e. an act prejudicial to Good Order and Discipline of the Force inasmuch as he entered into a contract with smugglers for providing safe passage for smuggling of goods. The record reveals that Dy.Comdt.B.B.Gusain commenced recording evidence on January 17, 1999, and completed the same on January 23, 1999. During the course of the ROE, the statements of six persons, namely; Insp.Mukund Singh, HC A.N.Godara, Ct.Ashok Kumar, SI R.D.Sarkar, HC Om Prakash and SI(G) R.B.Chaudhary were recorded; all of whom deposed against the petitioner and as per the version of the prosecution.