ROBERT XESS Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal has been preferred at the instance of the writ petitioner-appellant assailing the judgment and order dated 12th March, 2008 passed by a learned Judge of this Court whereby the said learned Judge dismissed the writ petition on merits.

(2.) From the records, we find that the appellant herein at the relevant time was serving in the Border Security Force as 'Constable' and was posted at 136 Battalion of Border Security Force at Roshanbagh in the district of Murshidabad, West Bengal. We also find from the records that the appellant herein was on duty along with other two constables namely Sri M. Munnaswamy and Sri Roshan Kumar Singh at Indo-Bangladesh Border on 24th July, 2005.

(3.) It is the ease of the appellant-petitioner that while discharging the duties at the said Indo-Bangladesh Border on 24th July, 2005, he found some miscreants armed with deadly weapons trying to cross over to Bangladesh with smuggled cattle. It has been submitted by the learned Advocate of the appellant that the said appellant raised alarm and tried to apprehend the miscreants, but the said miscreants fled away leaving a Polythene packet which contained some cash money. It is the specific case of the appellant that in spite of his best effort, he could not connect the Area Commandant through Radio Set but after sometime when the Company Commandant came to the spot, the appellant narrated the entire incident and handed over the Polythene packet to the said Commandant. The Commandant thereafter prepared the seizure memo on 24th July, 2005 showing recovery of an amount of Rs. 13,150/- from the appellant and other two constables namely, Sri M. Munnaswamy and Sri Roshan Kumar Singh. On the next date i. e. on 25th July, 2005 an order was issued directing the Deputy Commandant of the Unit to prepare record of evidence against the aforesaid constables including the appellant herein for committing an offence under section 46 of the Border Security Force Act. The record of evidence was thereafter prepared on 28th July, 2005 and the Commandant of the area by the order dated 30th July, 2005 directed the Deputy Commandant to prepare an additional record of evidence within 31st July, 2005. The Commandant subsequently by an order dated 1st August, 2005 forwarded the chargesheet, copies of records of evidence as well as additional records of evidence to the appellant herein informing him about the commencement of the trial in Summary Security Force Court on 2nd August, 2005. The appellant and the aforesaid two other constables were arrested on 2nd August, 2005 and tried by the Summary Security Force Court on 2nd August, 2005. The final order of punishment was thereafter issued by the Commandant on 4th August, 2005 holding the appellant guilty of the charges and the Court sentenced him to suffer rigorous imprisonment for one year Civil Prison and also directed his dismissal from service. An appeal was preferred under section 117 of the Border Security Force Act before the Appellate Authority which was however, not disposed of for a considerable period. After a specific order was passed by this Court in another writ petition being W. P. No. 2636 (W) of 2006, the said appeal was ultimately disposed of by the Appellate Authority namely, the Director General of Border Security Force on 25th April, 2006 whereby the said Appellate Authority rejected the appeal filed by the wife of the appellant herein.