HAVALDAR YADVINDER NATH SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner was enlisted as a Senior Non-Commissioned Officer in the Recruiting Organisation of the Indian Army on 20th January, 1962. Later on he was promoted as Naik on 12th May, 1963 and further as Havaldar on 2nd September 1969. The petitioner was transferred to Gurkha Recruiting Depot (hereinafter referred to as G.R.D.) and Record Office, Ghoom (West Bengal) (hereinafter referred to as R.O. Ghoom) attached to 5 Field Ordinance Depot as Clerk (General Duty). By virtue of being Clerk (General Duty) as a part of his duty the petitioner bad to perform the office duties in the Ration Section directly reporting to the Store Holder and Head Clerk Subedar A.K. Gurung. The petitioner was responsible for preparing the documents of ration stores of G.R.D. & R.O. Ghoom. On a complaint made by Naib Subedar K.K.S. Nair of 80 company A S.C. (Sup.) who was the Junior Commissioned Officer, a court of inquiry was convened in G.R.D. & R.O. Ghoom. to inquire into allged misappropriation of certain stores by the petitioner, Subedar A.K. Gurung and Captain B.N Deka and four others in respect of certain transaction of 6th September 1974. Since during the pendency of the inquiry Subedar A. K. Gurung was declared to be absconding, the petitioner alongwith Captain B. N. Deka was tried under Section 69 of the Army Act by a General Court Martial on the charge of committing a civil offence, that is to say, criminal conspiracy contrary to Section 120 - B of the Indian Penal Code and on two other charges of dishonest misappropriation of property contrary to Section 403 of the Indian Penal Code. The charge sheet enumerated the following three charges: Against Accused Nos. 1 and 1. Committing a civil offence, that is to say, criminal conspiracy, contrary to Section 120-B of the Indian Penal Code. in that they together:At Jalapahar, on or about 6th Sept. 1974 alongwith JC-48501 Sub. A.K. Gurung of the same unit (another accused since absconding) conspired amongst themselves to draw rations from the Supply Point, Jalaphar, in order to dishonestly misapprorpriate the same, the property belonging to the Government. Against Accused No. 2 only 2. Committing a civil offenc that is to say, dishonest imsappropriation of property, contrary to Section 403 of the I.P.C. in that he:at Jalapahar on 6th September 1974 alongwith JC-48501 Sub.a.K. Gurung of the same unit (another accused since absconding) prusuant to te conspiracy referred to in the first charge, collected the under mentioned quantities of rations form Supply Point Jalaphar and dishoneslty misappropriated the same, the propertybelonging ot the Government:-

(2.) IT was contended, by the learned counsel for the petitioner that once the charge of conspiracy had failed, the charge of misappropriation cannot be sustained unless it is proved that the petitioner came in innocent possession of the goods. Learned counsel submitted that this was an essential jurisdiction Section 403 of the Indian Penal Code. There is no evidence that the petitioner was in possession of the goods alleged to be misappropriated by him and, therefore, the finding of the Court Martial being against evidence deserves to be set aside. Learned counsel relied on Tilak Raj Kohli v. State, 1970 Cri L.J. 1691 and W.E. Gardner v. Ukha, 1937(38) Cri. L.J. 48 in support of the contention that to prove a charge of misappropriation, it is necessary to prove that the goods were in innocent possession and she relied on Swarn Singh and Another v. State of Punjab and others, AIR 1976 SC 232 and R.S. Bhagat v. Union of India, AIR 1982 (Delhi) 191 in support of the contention that if the decision of the Court Martial is based on no evidence, this Court while exercising jurisdiction under Article 226 of the Constitution of India can interfere with such a finding. It was contended that the case of the prosecution was that the petitioner alongwith Captain B.N. Deka and Subedar A.K. Gurung who were the stock holders of the ration, entered into a criminal conspiracy to draw ration from the Supply Point, Jalapahar in order to dishonestly misappropriate the same. On 6th September 1974 they misrepresented to the supply point, Jalapahar that the ration was required to meet a heavy unexpected influx of recruit which had arrived suddenly and since the unit driver was not available for taking the van to the Supply Point, Captain B.N. Deka who was accused No. 1 in the first charge drove the van to the Supply Point. On reacting there, Captain B. N. Deka remained in the driver's cabin whereas Subedar A.K. Gurung and the petitioner drew the rations on loan on the undertaking that an emergent demand would be forwarded next day to cover the issue. The loan voucher was signed by Subedar A.K. Gurung on behalf of the unit and by Subedar K. K. S Nair on behalf of the Supply Point. Subedar A K. Gurung authorised the petitioner to collect the rations and sign the gate pass. Since it was not possible to carry all the ration in one trip. J. C. O. Incharge at the supply Point was requested for a vehicle from the Supply Point. While the ration was being weighed, Subedar A.K. Gurung left the Supply Point leaving behind at the petitioners alongwith Subedar K.K. S. Nair. Thereafter all items of ration except rice were loaded in the unit van and accused No. 1 Captain B. N. Deka drove the unit van alongwith the ration. Captain A. K. Gurung sat in the body of the unit van. The remainder of 40 bags of rice were loaded by the petitioner in the Supply Point vehicle which was driven by Mr. M.R.K. Nair. This rice was carried to G.X.D. and R.0. Ghoom where they were unloaded. Mr. M. R. K. Nair was the driver who was examined as PW I by the prosecution. He stated that when the jeep of Supply Point alongwith the rice reached G.R.D. and R.C. Ghoom, the rice was not unloaded for some time. Since he had to return back to the Supply Point, he asked some one who looked like a Major what to do with the rice He was asked to go and have a cup of tea. In the meanwhile, Subedar A. K. Gurung arrived at the spot and during the time Mr. M.R K. Nair was away for a cup of tea, the rice was unloaded from the vehicle and stored in the store room. Since on the next day, Subedar A. K. Gurung did not send the emergent demand as promised and on being reminded about the emergent demand, he evaded to send it thereafter as well, Subedar K. K. S. Nair instructed his N.C.O. to deduct a portion of the ration issued to the unit from subsequent indent submitted by the unit on 27th September 1974.

(3.) IN the result, the petition is allowed. The orders dated 8th, July,1977, 12th July 1977 and 18th April, 1979 are set aside as being against evidence on record. The petition will be entitled to all consequential benefits. No costs.