AGARTALABENCH RAJENDRA SARKAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner who was Constable/Tailor under the Border Security Force (for short 'BSF') has called in question the legality and correctness of the impugned order dated 30.9.1995 passed by JAD (Admn.) whereby the petitioner has been dismissed from service.

(2.) The short facts giving rise to the present proceeding may be noted as follows : The petitioner initially entered into the service under the BSF in the year 1982 and was promoted to the rank of Constable Tailor in the year 1983. His grievance is that on 11.10.1995, after a period of 13 years of unblemished service, he was suddenly directed to face a trial before the Summary Security Force Court (for short 'SSFC') on a charge of committing theft, which is an offence punishable under Section 30(A) of the BSF Act, 1968 (for short the Act'). The charge framed against him reads as follows : "The accused No. 82844001 Constable/Tailor Rajendra Sarkar of 97 Bn. BSF attached with 103 Bn. BSF is charged with : COMMITTING THEFT OF PROPERTY BELONGING TO THE GOVERNMENT In that be, At Gokulnagar SHQ TRA (S) on 08th July'95 at about 2200 hrs, committed theft jointly along with No. 90192196 Constable Maquebul Hussain of 97 Bn BSF in respect of four celing fan, four regulator, four chokes of Tube light, the property belonging to primary school of SHQ TRA (S), the property of the Government by taking away from said school. Place : Salbagan Sd/- Dated, the 11 Oct'1,995 (D. V. SARASWAT) COMMANDANT 103 BN BSF" Before the above charge was framed, an order was passed by DIG, BSF on 23rd September, 1995 directing JAD (Comm.) to record evidence in respect of 'the allegation against the petitioner with further instruction to comply with the provisions of Rule 48 of the BSF Rules, 1969 (for shout 'the Rules').

(3.) Following the above order dated 23rd September, 1995 the JAD (Comm.) recorded the statements of Subedar Ranjit Singh (P.W. 1), C.T. Ashok Kumar (P.W.2), N.K. Sribas Saha (P.W.3) and C.T. Maquebul Hossain (P.W.4). The statements recorded brought into focus the modus operandi of the alleged offence and its Mens rea. C.T. Maquebul Hossain (P.W. 4) is in fact, a co-accused, who stated that on 8th July, 1995, he along with the petitioner planned to commit theft of the ceiling Fans from the Primary School as both of them were in need of such fans for their home. While Maquebul Hussain brought the electric plier, the petitioner brought one screwdriver for opening the window and iron grill for entry into the school building. As planned, they entered the school building and removed four electric fans, four regulators and four chokes of tube lights. Thereafter, the blades of the fans were disassembled and they divided the booty equally among themselves. P.W.3, Sribas Saha stated that on 19th September, 1995 he was on guard duty when C.T. Ashok Kumar (P.W.2) came to him with a purse in hand asking permission from the sentry to go inside the guard room tfor handing over the money and the purse; to C.T. Rajendra Sarkar, the petitioner herein. He was asked to obtain permission from Sobedar Ranjit Singh (P.W. 1). When approached, Ranjit Singh searched the purse wherein one bus ticket, one rail ticket, Rs.690/- and a letter written in Bengali language were found. As Ashok Kumar being a non-Bengalee could not read the [letter, Sobedar Ranjit Singh (P.W. 1) asked N. K. Sribas Saha (P.W.3) to read out the letter and translate the same into Hindi which he did accordingly. The letter was written by the petitioner to his wife Aruna advising her to hide the fans as there might be a search by the BSF personnel. This factum, particularly the contents of the letter had also been narrated by C.T. Ashok Kumar (P.W.2) and Subedar Ranjit Singh (P.W.I). All the statements were recorded on 26.9.1995 and 27.9.1995. On 28.9.1995, the accused-petitioner in terms of Rule 48(3) of the Rules was asked by JAD (Comn.) whether he would like to make any statement cautioning him that he was not found to make one and what ever he would state might be taken down in writing and might be used as evidence. The accused-petitioner, however, declined to make any statement then, though on 19.9.1995 he had already given a confessional statement to Joint Asstt. Director (Admn.) in presence of Constable Mahadeb Mistry and Nayek S. Saha, marked Exbt. B.