BHUPENDER SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this writ petition under Article 226 of the Constitution of India, the petitioner seeks quashing and setting aside of the finding and sentence awarded by the Summary Security Force Court on 21.4.2012. He also seeks setting aside of the order dated 15.11.2012, whereby the statutory appeal of the petitioner was rejected. The petitioner also seeks a writ of mandamus, directing the respondent No.2 to reinstate him in service with all consequential benefits from the date of his dismissal. The petitioners case is that he was on Sentry duty/Observation Post

(2.) DUTY on the Indo -Bangladesh Border on 9.4.2012 at Gate No.43 of BOP Hamjapur from 0600 hours to 1200 hours along with Constable Surender Sahu. The Gate Commander was one HC Ashok Kumar whose duty was from 0700 hours to 1713 hours. After completion of his duty, the petitioner was relieved by the new OP party comprising of HC Kalpathnath Ram and Constable Santosh Kumar, who took over the charge at 1200 hours. Allegedly, HC Kalpathnath Ram and the Gate Commander HC Ashok Kumar noticed some suspicious movement of persons at about 1205 hours, approximately 100 meters beyond the fence of Gate No.43 towards the Indo -Bangladesh Border. Upon searching the area, they allegedly found 10 -12 bags containing tractor spare parts but the persons carrying them had run away into the Bangladesh territory. The Seizure Memo dated 9.4.2012 addressed to the Superintendent/OC, Balurghat Customs P.U. records the incident as under:

(3.) TWO days later, an FIR was lodged on 11.4.2012 which too mentions the time of the incident as 1205 hours. The FIR neither names the petitioner nor does it allude any charge against him apropos the aforesaid incident of persons running away across the Indo -Bangladesh Border. The Company Commanders subsequent report five days later, on 12.4.2012 recording the incident, for the first time, suggests the involvement of the petitioner along with Constable Surender Sahu. It was imputed that the alleged smuggling could have been carried out either by throwing the bags over or taking them through the gate with the connivance of the "outmen", the OP party. However, in the same breath, the report also records that there was no damage to the Indo -Bangladesh Border Fence (IBBF). The Summary Security Force Court trial was held under Section 40 of the BSF Act, 1968. The petitioner was arrested under Rule 38 of the BSF Rules, 1969 vide order dated 20.4.2012.