MIHIR KANTI CHOUDHURY Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was a Lance Naik in the Border Security Force (for short 'BSF'), who in the present writ petition has called in question the legality and validity of the order of his dismissal from service passed by Deputy Inspector General, SHQ BSF TRA(S) on 26th October, 1995, which was corrected later by order dated 8th June, 1996.

(2.) The petitioner entered into service in April, 1986 as Constable and in 1993 he was promoted to the post of Lance Naik in 81 Bn. BSF, Salbagan. In 1995 he came to be attached to SHQ, BSF, TRA(S), Gokulnagar. On 5.9.1995 certain valuable materials including one generator set (1.5 kv., Sriram Honda), 12 volt. Battery (Exide) and ceiling fans were found to be missing from the store and an investigation was launched by P.W.1, JBS Gurung, SUB(T) and P.W.2, P.K. Paul, SI (Vig.) under the order of the competent authority. During investigation, it came to light that constable Maquebul Hussain committed theft of those articles and on 2.9.1995 he proposed to the petitioner herein to sell the generator at a price of Rs.8,000/- only. The petitioner agreed to buy the same at a price of Rs. 6,000/- only. Though Maquebul Hussain refused to give any document and agreed to sell the generator at Rs. 6,000/- against its original price of Rs. 14,000/-, the petitioner bought the same and kept it in his brother's house at Ramnagar Road No. 4. The investigation further revealed that the petitioner admitted about his buying the generator, but pleaded his ignorance that it was a stolen property. Following his statement, the investigating officers conducted search in the house of the brother of the petitioner and recovered the generator. The fact that the generator valued at Rs.14,000/- was sold at a price of Rs. 6,000/- only by a constable, who was not supposed to deal with such article and the petitioner agreeing to buy the same without any document or verifying wherefrom Maquebul Hussain obtained the same gave rise to a suspicion in the mind of the authorities concerned that the petitioner had purchased the article knowing or having reason to believe that it was a stolen article, which is an offence punishable under 30 of the Border Security Force Act, 1968 (for short 'Act'). Separate proceedings were drawn against Moquebul Hussain and the petitioner herein. The charge initially framed by the DIG against the petitioner reads as follows:

(3.) The Summary Security Force Court (for short 'SSFC') before which the proceeding against the petitioner commenced was presided over by D.V. Saraswat, the Commandant of the Battalion. The charge was read over and explained to the accused-petitioner, who pleaded guilty to the charge even though he was informed the effect and consequence of such a plea. Before the order of penalty of dismissal from service was issued on 12.10.1995, after the plea of guilt was recorded, the statements of witnesses were recorded by one J.P. Syal, the person appointed as recording officer. Six witnesses were examined by the recording officer of whom P.W. 1, IPS Gurung and P.W.2, PL Paul conducted the investigation, searched and seized the stolen generator. P.W.3, Mohan Singh and P.W.4, Maipak Singh were also examined on the same date, i.e. on 18.9.1995. The other accused Moquebul Hussain, who is alleged to have committed the theft and sold the stolen generator to the petitioner herein was also examined as P.W.5 on 25.9.1995. P.W.6, Jagdish Singh was also examined on 25.9.1995. The statements of these witnesses established the undisputed fact that the petitioner herein had received the stolen generator from Moquebul Hussain, who also faced another proceeding on the charge that he had stolen the generator and other articles, which were the properties of the Government. The petitioner herein has assailed the impugned order of dismissal on several grounds of which the main contention is that he was a bonafide purchaser without knowing that the generator was stolen by Moquebul Hussain. He admitted that he had purchased the same without any knowledge about the offence committed by Moquebul Hussain and for that reason an offence punishable under Section 30(d) of the Act cannot be said to have been made out and consequently the impugned order of punishment, which is shockingly disproportionate to the alleged offence is not legally sustainable.