OM PRAKASH Vs. UNION OF INDIA & ANOTHER

JUDGEMENT

(1.) On 28th July, 2001, the petitioner, who was a constable in the Border Security Force (hereinafter referred to as BSF) and was performing observation duty at the border outpost in Ram Nagar from 1200 Hrs. to 1800 Hrs. on the International Border between India and Bangladesh, was tried by Summary Security Force Court (hereinafter referred to as SSFC) on the charge of giving free pass to smugglers to smuggle approximately 100 cattle from India to Bangladesh. Vide order dated 11th August, 2001, the petitioner was found guilty of the aforesaid misconduct and awarded a sentence of dismissal from service. It is a matter of record that the petitioner's co -delinquent -Constable Shiv Shankar Singh, who was also performing duty at the same border outpost, was also awarded a similar penalty. The penalty imposed upon the petitioner was approved by the Reviewing Officer on 25th January, 2002, and the statutory petition against the afore -referred conviction preferred by the petitioner stood dismissed by the Directorate General, BSF and the said dismissal of the statutory petition was conveyed to the petitioner vide impugned communication dated 17th February, 2003 (Annexure P -6).

(2.) The relevant facts, which led to the trial and conviction of the petitioner, as noticed in the counter affidavit filed by the respondents, are highlighted, as under: - "On 28.7.2001, the petitioner was detailed to perform OP duty at OP No.1 under Ramnagar BOP, jointly with Ex.Ct. Shiv Shanker Singh of 62 Bn BSF at B.P. No.34/2 -S from 0600 hrs. to 1800 hrs. While performing the O.P. duty, both the constables allowed free pass to smugglers to smuggle the cattle approximately 100 in number to Bangladesh. Both constables were heard by the Commandant and thereafter a joint Record of Evidence was ordered vide order dated 30.7.2001 after completion of record of evidence a decision was taken to try them jointly by a Summary Security Force Court. The petitioner and Ex.Const. Shiv Shanker Singh were tried jointly by a Summary Security Force Court by the Commandant for an offence under Section 40 of BSF Act, 1968 "An omission prejudicial to good order and discipline of the Force". The petitioner pleaded not guilty to the charges. However, after going through the material and evidence on record, the court found the petitioner guilty of the charge and awarded sentence to be dismissed from service with effect from 11.8.2001. Summary Security Force Court proceedings were forwarded to Law Officer Grade -I Ftr. HQ. SB Vide letter dated 14.8.2001 and were received after counter signature by DIG SHQ BSF KNR vide their letter dated 28.1.2002 and were sent to Chief Law Officer, FHQ BSF, New Delhi for record. The petitioner joined the BN HQ at Roshanbagh (WB) on 29.6.01, after which he underwent pre -induction training about the modus operandi of smugglers and about taking the counter measures. He was deployed on the border after area familiarization, and before assigning the duty the petitioner was briefed by officiating Coy Commander Subedar Jaswant Kumar."

(3.) The trial against the petitioner and his co -delinquent proceeded on the basis of a written complaint dated 29th July, 2001, by the Offg. Coy Comdr. 62 Bn. BSF, which unfolds the precise case set up against them. It is pertinent to advert to this complaint, which in verbatim reads as under: - "To The Commandant 62 BN BSF Roshanbagh Murshidabad. Sub.: Connect with smugglers and crossing of cattle to Bangladesh It is submitted that No.90254297 Ct Om Prakash Choti and No.98002550 Ct Shiv Shankar Singh of D Coy, 62 BN BSF were on OP duty. At OP point No.1 from 2811300 hrs. to 281900. I was given some Spl. Task by the worthy Comdt to carry out joint Ops with B Coy towards BOP Khandua side during night Intervening 28/29 July 2001 and accordingly I had left my Coy HQ Ramnagar at about - - - on a motor cycle Driver No. - - - - Ct/Dvr T.S. Prakash. On reaching at OP Point No.1 I had found that No.90254297 Ct Om Prakash on OP duty along with No.98002550 Ct Shiv Shankar Singh had consumed liquor and was fully in the stock of intoxication. I had tried to enquire about the focus. But Const. Om Prakash was not in a position to give response of my queries. I had told and Shiv Shankar to remain vigilant on duty and since I had to accomplish this special task assigned to me, I proceeded further with the view that I will deal with this Ops later on. Secondly, I hardly about 500 yards ahead towards BOP Khandua I had seen that there was a small way crossing border road and going towards IB and a large no. of foot marks of cattle on the way were noticed. On seeing this, I again returned back towards this OP Point 01 and asked the both this above persons as to how large number of cattle have crossed by the smugglers just a 500 yards distance from the OP Point. Ct. Om Prakash was not in a position to give a reply being in the state of intoxication and Ct. Shiv Shankar Singh had replied that I do not know in this regard. Keeping in view the above facts, I am of this view that crossing of cattle from just such short distance from OP Point in broad day light between 1600 hrs to 1700 hrs. cannot be possible without connivance of these persons on naka duty. Therefore, it is requested that a strong disciplinary action against the above persons may be initiated so that reoccurrence of such lapsed in furtherance be avoided. It is further submitted that Sh. Chhindu Ram DC has also reported of this location today at about 1200 hrs. from BN HQ and has seen the way/spot from where the cattle have been crossed by the smugglers. Sd/ - Insp. Jaswant Kumar (Offg Coy Comdr) D Coy 62 BN BSF Dated 29.07.2001"