Navin Chandra v. Union of India

2. The brief facts of the case^Fe-that-tKe''petitioner was on duty from 0200 hours to 0500 hours on 20.07.2012 and on checking by duty NCO, he was found missing at about 0340 hours from his duty post and when a search was made for him, he was found sleeping in 'F' Coy stores shed at about 0540 hours along with his weapon and ammunition. The proceeding of recording of evidence was held and during which statements of six witnesses were recorded. All the six witnesses were duly cross-examined by the petitioner. After completion of the recording of evidence of the W.p. (C) No. 8709/2015 p^ge / 2015:DHC:11418-DB witnesses of the prosecution, the statement of the petitioner was recorded, after issuing caution under Rule 48(3) of BSF Rules Act, 1969. Thereafter, on the basis of the record of evidence, the following chargesheet under Section 16(d) was issued:- "While on Sentry Duty at Unit Store-Magazine Guard, at 0340 HRS on 20.07.2012 during checking by duty NCO you were found absentfrom guard duty" 3., A Summary Security Force Court (SSFC) was constituted, which conducted a trial. A friend of the acc.us.ed Shri V.D. Gangwar attended the SSFC trial along with the?]pef|tioner^.fhe C^p5aMant Shri Nanak Chanc^ who conducted the,trial, als[5] "acted^asi-an int'erpr^fer^'^I^he petition«r had pleaded not guil1^^)f|flae' ex^in^r"' —- All the witnessed'were'duly cro^$®MfneS^the petiti^er.%ndefence, he statement and closed his defence^ y'B^sedk iln i was dismissed ftpm servjgg. petitions which were also dismissed. %

4. The petitioner<chMlenge^s"-Ms_..dismissal on>^W^^^ that the conviction is based on materMfe\5^ni^ to prove his guilt an^ therefore there is a grave error offact and law. It is also submitted t)^at the entire proceedings were mala fide and tainted with bias and the charge itself was false. It is submitted that the petitioner was on Store Guard Duty and not on Unit Store-Magazine Guard duty and that the prosecution witness H.C. Anil Kumar has supported the petitioner when he deposed that the petitioner was on "Store Guard Duty". It is further stated that the proceedings were conducted with undue haste and the petitioner was not given proper time and opportunity to prepare his defence and to analyze the six witnesses. examined one Witness Constable^lB&j^MSte, and, thereafter^! he made his SSFC trial,Jhe petitioner W.P. (C) No. 8709/2015 Page 2 evidence or the documents relied upon against him by prosecution. Denial of proper legal assistance as envisaged under Rule 157 of BSF Rules, is also urged as an infirmity. The friend of the accused, Shri V.D. Gangwar, was appointed on the day when the trial commenced and no document, evidence or record sought to be used against the petitioner, were supplied to him as a result of which he could not render any assistance to the petitioner. It is further contended that the Commandant himself had acted as an interpreter and that the entire proceedings were in English which the petitioner did not understand and, therefor§,p4e did, |n9t-:get^,proper...opportunity to defend himself. It is conte^ed^hat,^c^arges,^re amendedj^in^ ofSection 57 and 58, i.e., ^9^^uan^^fe|^^he peSSon^.Jt is submitted thatinthemem^bi^arge, itw^|||(||||iiewas on%^}^dutyat Unit Magazine Gumdat0340hrs". ^ ^llecordofevidence, thechargesheet given to Wm stated that "he duty atunit store-magazine suard. at 0340 Hrs" If

5. It is for not being found on duty was amajor amendment in charge andt;#n€^hWam5^^ of the process under Section 57 and 58 ofthe 'BSFTRules, the trial stands vitiated. It is further contended that the disciplinary proceedings was based on areport dated 20.07.2012 by the Assistant Commandant Akhilesh Bisht, where he reported that the petitioner was on rear guard duty in the magazine (Gola Barood Bhandar) and was absent from the place ofhis responsibility. It was argued that PW-1, during record ofevidence clearly stated that he had found the magazine front and rear guard in position. It is submitted that it was for this reason, that subsequently a different charge-sheet was issued to him. It W.P.(C)No. 8709/2015 Page 3 is further submitted that Appellate Authority ignored the evidence of the Guard Commander of Store Guard near Magazine who clearly stated that he had checked the guards at 0030 hours and found them alert. It is further pointed out that when the petitioner was allegedly sleeping, the time was about 5.30 hours and by that time his duty was over. It is further contended that his explanation of being absent from, duty on the ground that he had gone to drink water and while returning slipped and fallen unconscious, was ignored by the Appellate Authority. Thus, his defence was not considered either by the SSFC or by.the-^AppelkJe'pAutK® is thus submitted that® the findings into his,^guilt||re^4n^)^^ the law at^ the evidences on reco^ pf^Kas

6. Itis argueloifi&halfofS^^p^^thatthe^jonerhas cooked up new groun[4] of challenge a®I® he had never disput^, during the it • -vt is: 5ft[5] ('I H i'i, recording ofevidence or before he was on sentry jduty between 2.00to 5.00ho% on20.07.20^^^^^Store.Itis sul|hittedthatthe petitioner himseff,^ 'proceedings of ^ assigned duty of magazine-store <1hrs. I took over^ charge as sentry at 0200 hrs. on To.of'fiffl2\i\d also in SSFC tiial when he has stated in his statement that "I was detailed for Guard Duty at Store Magazine Guardfrom 200200 hrs to 200500 hrs." It is further contended that even the defence witness—who had replaced the petitioner when he was found absent on the directions ofthe Guard Commandant HC J.D. Mishra— clearly stated that "On 20'^ July, 2012 I was detailed as guardfor store magazine guard and my duty was to be started at 200500 hrs, at about 200440 hrs I was directed by the Guard Commander HC J.D. Mishra, to W.P.(C) No. 8709/2015 ^ r immediately go to Morcha at Store Magazine Guardfor duty as CT Navin Chandrea is absent from Store Magazine Guard. When I came to Store Magazine Guard I didn't find CT Navin Chandra in his Morcha." It is further argued that the prosecution examined six witnesses in the recording of evidence proceedings and the petitioner did not suggest in the crossexamination to any of the witnesses that he was not on Magazine Store Guard duty and that he was on 'Store Guard Duty'. Even no such suggestion was made to any prosecution witness^uring SSFC. It is further argued that petitioner is blowing hot and-^ofd atpthe-rsame?time..While he has contended -...that he was never mis^ng @lrhis ^;^and[1];h§"ch^^Aat he was missing from duty, is a ^disn^^^^wm^^^^ervice^In-liis, petition under Section 117 BSlA^1968 anS^^S^ji^y appealfed, he had taken up the plea that' he had gone td^'Mrinfej-'.^aier and slipped, fell' and became 'I k101)I'S ' 1' unconscious due to weakness caus'ed py [dysentery and, his iplea was not P fV " • ' ' i: taken into consJ|eration by the|^i^^^^^iAuthority. In this way, he has also admitted thafehe duty post to drink water. It is\^fmitte^^that the,,evi!fenBlS-feeoked during the proceedings of r e c o r d i n SSFC clearly establishes that the petitioner wasWdutyon 20.7.2012 from 2.00 hours to

5.00 hours and was found missing during patrolling at about 3.40 hours. All the witnesses were duly cross-examined by the petitioner. He also admits the assistance of Shri V.D. Gangwar and that the entire proceedings were explained to him—moreover—he never explained inability to understand the proceedings or inability to prove his defence, etc. during SSFC.

7. We have heard the learned counsel for the parties. There is no dispute that the petitionerwas on duty from 2.00 hours to 5.00 hours on 20.07.2012. W.P.(C) No:8709/2015 ^ While the contention of the petitioner is that he was on Store Guard Duty and the store contains the bedding and other articles of the personnel on leave and some article of persons on duty and does not have any arms and ammunitions and military equipment, the contention of the respondent is that he was on sentry duty at Unit Store Magazine Guard. It is apparent that it is for the first time before this Court that the petitioner has taken the plea that he was on Store Guard Duty at the store which contained bedding and other articles. Neither during proceedings of record of evidence nor in SSFC did he raise this plea. No^sug'gestion-was^ of the witnesses thdi^ he was not on duty ats'UniCStofe Magazine GiSiLrd^^^^^ in his statement recorded?%rMg'recoKdi'|^f eyidence and^^ade^before SSFC, he had not taken thfe >|lea that hd^^a|^1|ot'on^-''Huty at Uiiit^Slore Magazine Guard, but at a.store containing t^Bel^dingv'etc. ofpersonnel on leave or on S 1 sfp I It. 1 duty. He rather ^admitted in his defeiicie statement that "he waskssigned duty I • I nm A/fnrrn'TTv^/D rZn/yi'*/^ -ft/^rwM n^A /-.Ur-»o was detailedfor GiMt^^''$fk^'^P=.^tpre Magazine Qitardfiom 200200 hrs to 200500 hrs". His defenc^^yitnlss"hS§-als#fM facts. In view oi^ these evidences, the findings ofthe Disciplinary Authority that the petitioner was on sentry duty at Store Magazine Guard cannot be found fault with.

8. As per Rule 157 of BSF Act, the petitioner was provided a friend to help him during SSFC trial and Mr V.D. Gangwar had participated in trial.

9. At no stage, Mr Gangwar or the petitioner had requested the Court for supply of any deficient documents or proceedings to them. They also did not express any lack of understanding of the proceedings conducted by the SSFC. If the petitioner or his friend, were unable to understand the W.P.(C) No. 8709/2015. Page 6 proceedings or they needed any document or further assistance of any sort, ought to have expressed their desire to the Court and in the absence of any such objection being raised during the trial, the plea raised before us lacks genuineness. Besides that, the trial before the SSFC clearly shows that the petitioner had fully understood the proceedings, including the statements of the witnesses and that is why he could cross-examine them. The way the questions were being put to the witnesses in their cross-examination by the petitioner shows that the petitioner had fully understood the testimonies of the witnesses and could.formulate,-his" questions, intelligently. There is nothing, on the record^ tofslfew""that he wa's"^unabre%to understand the proceedmgs before S-SfC. HeShastralspjIexamined'^'his defence witness, / a:/ "4...' ••A therefore, it caniibt xi. i ^bt-jp'said fult'opp'qrtunity by the 4-u^ u;™—if"+T U Court.Merelyl|ecausetheCour^'{^^^|^p3onhimselfther^ponsibilities. entire proceeding unless the /petitioner has of an interprete petitioner show^\^that failed to point that he either had been deprived o&^Ko^E''^pp|tunitie^^^ or was unable ^to prepare his defence or suffered with inability to cross-examine the witn~ess~ i'n a'proper manner. The proceedings, therefore, do not suffer with any infirmity.

10. The contention of the petitioner is that the findings of guilt remain unsupported, in view of deposition of the Guard Commander who had stated that he found the Guards on checking, alert at 0030 hours, and thus proves that the petitioner was on duty and not missing from duty, is devoid ofany merit for the reason that the charge against him was that he was found missing by PW-1 while patrolling at about 3.40 hours, while the statement W.P.(C) No:8709/20I[5] Page 7 of the Guard Commander relates to the time 0030 hours, when he was not put on duty, as his duty hours started from 2.00 hours. Not only this, the petitioner explained that while on duty he had gone to drink water when he slipped and fell unconscious due to his weak condition, owing to the dysentery with which he was,suffering. So the fact that he was missing from his duty is admitted. The petitioner's plea is also that his absence from duty was not deliberate or intentional but he actually fell somewhere while drinking water as he was suffering from vomiting and dysentery of such severe nature which so \^eak6nedT,^im^t0 rende>::movement difficult. Th0..vs A ^ contention ofthe petitioner^Si cdntrw^rted by the Ee|pohdenL. Ifit isgrue, it was reasonable thaf %§petition^MI Room of r)fKf prescription to substantiate his plea,'but-ri^|such document waJ,produced by the petitioner dither during recordi|0|/ej||(llnce proceedings c before us. Moreover, his pleaJ^ri^r^palie in the light oi' which emerge froto categorically stated that petitioner. w|^f6trad^sjeeping^i#^fc 'F' Coy. ASI Mithlesh Kumar, PW-4,^ha$^a@5^^t€d^^^^lfenr-ffe was looking for tha petitioner, he saw HC J.D. Mishfa 'lfringmg'out Constable Naveen Cliandra from the "Coy Store Room" Even before SSFC, HC Anil Kumar categorically stated that atabout 5.30 hours, the accused was found sleeping inthe store of 'F' Coy. PW-3 HC J.D. Mishra has also clearly stand that 'Ve found Ct. Naven Chandra sleeping in coy store"". PW-4 has also stated that ''by the time I came to thefrontandI saw that HCJ.D. Mishra was bringing out Ct. Navin Chandra from the Coy store room."" In their crossexamination, no suggestion was given by the petitioner that they did not find r in SSFC or f certain facts W.p. (C) No. 8709/2015 Page 8 him sleeping in the Coy store room, butthathe was found unconscious near the water point near MI Room. If we believe the explanation of the petitioner that he due to the weakness had fallen down and become unconscious, when he had gone to drink water near the water point near MI Room, the question he reached to the Coy store room where he was discovered sleeping, is a mystery.

11. The petitioner's plea is false and unsubstantiated by any evidence (oral/documentary on record) while on the other hand, the testimonies ofthe prosecution witnesses thathe was found-sleeping the Store Room during his duty hours stands^cont^oYated In the (3S.thevtestimonies of the prosecution witnesse||^^Jhe ple^||^|!M^^^3he petiffGxner ''does not inspire confidence. /•' mmmmk

12. From th| above discus^^^M)ws that the finding of the Sj |^~f| I 11 (| petitioner's gui| is based on the efd^Mon record and that there are no mitigating circumstances on rec##^f2^^bfthe petitioner.'In the light of the above, there % 0^]^ impugned order.

13. The writ petition,with the pending applications is accordingly dismissedrNo'drder as to costs.

SEPTEMBER 11, 2015 DEEPA SHARMA (JUDGE) LvvjLi^|&^ S. RAVINDRA BHAT (JUDGE)