RADHEY SHYAM SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The findings and sentence passed by the General Court Martial (GCM in short) is the subject-matter of challenge in this proceeding which has arisen in the following circumstances. Petitioner, JC 171925 Radhey Shyam Singh, was posted to 4 Rajput Regiment. He is an international athlete, his event being Hammer Throw. The petitioner was attached to 113 infantry Battalion at Calcutta to enable him to undergo training at the Sports Authority of India from 28-6- 1992 and continued to be attached to that unit till he was recalled by the 4 Rajput Regiment on October, 1993. According to the petitioner, he was granted ten daysT casual leave and in fact was sent a Railway Warrant dated 15th October, 1993 for his return journey from Howrah to Jammu. On 2-11-1993, the petitioner was detained by the Railway Protection Force (RPF in short) at the Dimapur Railway Station for alleged possession of Ganja by him. In due course a GCM was convened under the Army Act and the petitioner was charged under two heads: the first head was under Section 69 of the Army Act for committing a civil offence of being in possession of ganja contrary to Section 20 (b)(i) of the Narcotic Drugs & Psychotropic Substances Act (NDPS Act in short), 1985 and the second head of charge was under Section 30(a) of the Army Act for absenting himself without leave. The GCM commenced on 26-1-1996 and the findings were announced on 1- 4-1997. The petitioner was not found guilty of the second charge and was acquitted thereof. The GCM, however, found the petitioner guilty under Section 69 of the Army Act. On the 2nd day of April, 1997, the GCM announced the sentence by awarding 4 (four) years rigorous imprisonment as well as dismissal from service. The legality and validity of the aforesaid finding and the sentence of the GCM is challenged as being arbitrary, discriminatory, illegal and without jurisdiction.

(2.) The respondent contested the case and submitted their affidavit. In their affidavit, the respondents stated that as per the advice of the Army Headquarters, the petitioner was attached to the 113 Infantry Battalion to attend an Athletics Diploma course at the Sports. Authority of India, Salt Lake, Calcutta from 28-7-1992 to 1-5-1993. On termination - of the said course, the petitioner did not return to the Unit in spite of repeated requests. On 2-11-1993, the petitioner and one Naik AK. Tigga of the Bihar Regiment were arrested at the Dimapur Railway Station by the RPF. At the time of their arrest, both of them were in possession of approximately fifty kilograms of Ganja. Both the arrested persons were then attached to the 50 Coy ASC (Sup) Type C and tried a GCM. It is further stated in the affidavit that the petitioner was attached to the 113 Infantry Battalion at Calcutta in order to enable him to undergo training With the Sports Authority of India. As per records maintained by the Sports Authority of India, the training concluded on 15-5-1993. The petitioner had asked for leave from his parent Unit and he was granted ten days; leave on 12-10- 1993 by his Unit. After the expiry of his leave, the petitioner was required to report back to his parent Unit of Rajput Regiment then located in the Northen Sector. Therefore, there was no reason for the petitioner to be at Dimapur on 2-11-1993. The petitioner was also issued Railway Warrant for his journey from Howrah to Jammu. Furthermore, there was no route to Jammu or to the home town of the petitioner via Dimapur. Besides, the petitioner had no authority to travel on Dimapur route when he was issued with Railway Warrant from Howrah to Jammu. The fact was that the petitioner alongwith the co-accused NKAK Tigga. were found in possession of fifty kilograms of Ganja and were taken into custody by the RPF at the Dimapur Railway Station and subsequently handed over to the Army Personnel of the CMP. Shri Bodhan Das, a Porter at them Dimapur Railway Station, identified the petitioner and also the Steel Box and the VIP Suitcase containing Ganja as those belonging to the petitioner and NKAK Tigga. The said civilian Porter had carried the luggage of the petitioner and co-accused from the auto rickshaw to the train. The respondents stated that the GCM on consideration of the materials on record rightly reached its findings and awarded the sentence as per law. That since there is/was no infirmity in the proceedings. the writ application is/was liable to be dismissed.

(3.) Mr. A. Sarma, learned Senior Counsel appearing on behalf of the petitioner challenged the legality of the Court martial proceedings on two grounds - Firstly that the petitioner was tried and was also found guilty by the GCM for committing a civil offence of possessing Ganja contrary to the provisions of Section, 20(b)(i) of the NDPS Act. 1985, which is unlawful and is an offence under the said Act and the Act provides that such an offence is/was to be tried by a Special Court established under the Act: the GCM was not competent to try such an offence. Secondly in trying the offence, the GCM exceeded its jurisdiction. The learned Senior Counsel submitted that an offence under the NDPS Act, 1985 is to be tried and adjudicated only a Special Court created and established under the Act and by no other authority; that the GCM authority in trying and adjudicating the offence exceeded its bounds, which was beyond the pale of any Forum other than the Special Court established under the Act. 1985. In support of his contention. Mr. Sarma, the learned Senior Counsel referred to the scheme of the NDPS Act as well to that of the Army Act and submitted that the findings and the conclusion reached by the GCM are. therefore wholly without jurisdiction and liable to be quashed. Mr. Sarma, the learned Senior Counsel appearing on behalf of the petitioner also took pains in referring to the evidence on record and submitted that the materials on record did not prove and establish possession of contraband article by the petitioner and in the absence of such proof, the GCM committed grave error in holding the petitioner guilty of the charge under Section 69 of the Army Act and sentencing the petitioner thereunder. In support of his contentions, the learned senior Counsel for the petitioner, also referred to a decision of the Supreme Court in Ali Mustaffa Abdul Rahman Moosa v. State of Kerala.