STATE OF J&K Vs. GULLA KHAN

JUDGEMENT

(1.) THESE cases raise a substantial question of law namely;

(2.) THE question actually arose, before us in the case of Gula Khan (Supra). That is an appeal under the Letters Patent from the Judgment dated January 9, 1978 of a learned Single Judge of this Court allowing a writ petition. The claim in - the petition was that Order No. 354 of 1076 dated 15 -5 -1976 passed by the Inspector General of Police dismissing the petitioner Gula Khan, from service was void; illegal and without jurisdiction.

(3.) BRIEFLY stated, the facts are these On 14 -11 -1974, two unclaimd apache cases contained contraband charas weighing 23 Kgs, were found and seized by the police while in the process of loading in the aeroplane at the Srinagar Airport. A case F. I. R. 245/74 under sections 3/13 Dangerous Drugs Act and section 48 Excise Act was registered at Police Station Saddar, Srinagar. the investigation was entrusted to Inspector Gh Mohi -ud -Dn, the then Circle Inspector. Saddar The investigation led to the arrest of two persons namely Mohd Yousif and Nissar Qadir both residents of Bombay. Upon interrogation, they disclosed that the seized contraband charas belonged to S/Shri Feroz -ud -Din Sansi and his -brother. Aslam Sansi. both residents of Bagh Mahtab, Srinagar. who had employed them as couriers to smuggle the contraband charas out of the State. Berth Feroz -ud -Din and brother Aslam Sansi had already come to adverse notice for their charas smuggling activities as a result of which warrants of detention were issued - against them, by the Government "under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Feroz -ud -Din Sansi was detained, whereas his brother evaded arrest. While under detention, Feroz -ud -Din Sansi was interrogated by Mr R. Tirkoo, the then A. S. P. Srinagar. In consequence of the interrogation Feroz -ud -Din Sansi disclosed that the case property 23 Kg of Charas) in FIR 245/74 P/S Sarldar had been clandestinely replaced by supurious stuff and that the same had been sold for a sum of Rs. 8000/ - by Inspector Ghulam Mohi -ud -Din, to one Abdul Rehman resident of Gupkar Road He further disclosed that he as also Gula Khan Constable, and two other civilians Jahan Dad Khan and Jamla were privy to the act. Mr. R. Tickoo reported the matter to the Superintendent of Police, Srinagar. The Superintendent of Police ordered investigation and, at the same time, placed the officers under suspension on 20 -2 -1975. A CASE F.T.R. No. 73 of 1975 under -sections 409/201/161/120 -B R. P. C. and under section 5 (2) Prevention of Corruption Act was registered at Police Station Sherghari. The investigation was taken up by Shri Tickoo. Mr. Tickoo submitted the result of the investigation for opinion to the prosecution branch, who reported that the case was not likely to succeed in a court of law. None the less, Mr. Tickoo wanted the case to be put in a court of law and suggested that, in the event of its failure the defaulting officers could be dealt with departmentally .The Deputy Inspector General Police did not agree. He felt that it may not be fair and proper to proceed against the delinquent officers departmentally after they had been acquitted by the Court. He, therefore, suggested that the delinquent officers be dealt with departmentally right in the beginning. The Inspector General of Police agreed with his view and directed that the enquiry shall be he -d by the Dy. Inspector General of Police himself. That was so on 13 -3 -1975. Thereafter, on 19 -8 -1975, the Dy. In rector General of Police, Srinagar purporting to act under Rule II 349 of the J&K Police Rules asked for permission of the District Magistrate to hold departmental enquiry against the delinquent officers. The District Magistrate agreed and conveyed his sanction the same day under his No. LJ90/DM dated -y -8 -1975. The Dy. Inspector General of Police held the enquiry and submitted his report to the Inspector General of. Police After issuing the usual show cause notice the Inspector General of Police passed an order on 15 -5 -1976 dismissing the petitioner from service.