Banwarilal v. Union of India & Ors.

1. The present Writ Petition has been filed by the Petitioner challenging the Order dated 09.10.2007, passed by the Office of the Commandant, 142 Battalion BSF Sonari, Cooch Behar, West Bengal, dismissing the Petitioner herein from service; and Order dated 29.05.2008, passed by the Director General, BSF, CGO Complex, New Delhi, dismissing the appeal filed by the Petitioner herein against the Order of dismissal.

2. Shorn of unnecessary details, the facts, in brief, leading to the present Petition are that the Petitioner herein was appointed as a Constable in the Border Security Force (BSF) in 1989. It is stated that on 18.09.2007, the Petitioner herein along with one Constable Ranjit Das of Border Observation Post (BOP) Sachidanandan was on patrolling duty from 1800 hrs to 2359 hrs at BP No.967/2-s to BP No.967/5-s, i.e. Picket No.445-581. It is stated that at about 2215 hrs, Head Constable (G) Gopal Singh of 142 Battalion BSF, while coming on bicycle from BOP Sahebganj side on the Indo-Bangladesh Border Road (IBBR) saw the Petitioner herein walking towards him. It is stated that Head Constable Gopal Singh observed Petitioner and Constable Ranjit Das standing alongwith 4 to 5 civilians near fencing (Single Wire) at culvert No. 67/12 in front of BP No. 467/5-s IBBF picket no. 565 to 566 at a distance of approximately 200 metres from International Border and about one Km away from BOP Sachidanandan. It is stated that Head Constable Gopal Singh saw the Petitioner and Constable Ranjit Das helping the some people to smuggle cows across the border to Bangladesh Side through the International Border fencing along with some cattle (calves). It is stated that when Head Constable Gopal Singh flashed the torchlight on them, the smugglers fled with the cattle. Material on record indicates that when the Head Constable Gopal Singh asked Constable Ranjit Das and the Petitioner herein as to how many cattle have been smuggled during their duty, they did not utter a single word. It is stated that the Petitioner herein tried to bribe the said Head Constable Gopal Singh and requested him not to disclose about the incident to anyone but he refused. It is stated that Head Constable Gopal Singh reported the matter to the Platoon Commander - Sub Inspector Krishna and the matter was further communicated to higher officers of the unit. It is stated that a spot verification of the place of incident was carried out by the officers, including a Second-in-Command, a Deputy Commandant (DC) and an Assistant Commandant (AC). It is stated that during the verification fresh foot and hoof marks were visible between the Indo-Bangladesh Border Road and the paddy fields near the nallah on the Indian side of the fencing and the paddy crop was found to be grazed in the area ahead of the fence near the place of crossing. It is stated that under Section 40 of the BSF Act, 1968 and Rule 45 of the BSF Rules, 1969, an offence report for three charges was framed against the Petitioner herein and the same reads as under: “FIRST CHARGE BSF ACT, 1968 SECTION 40: AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE. In that he On 18.09.07 at BOP Sachidanandan while on Pillg duty as Pillg party commdr froml800 hrs to 2359 hrs from BP No. 987/2-S to BP No. 967/5-S ( Picket No.445 to 581) failed in dominating the area as a result other member of Pilg was found assisting smuggler to cross some small size cattle by stretching the fence opposite to culvert No. 67/12 opposite to culvert No. 67/12 and BP No. 967/2-S caught by HG(G) Gopal Singh.

SECOND CHARGE BSF ACT, 1968 SECTION 40: AN ACT PREJUDICIAL TO GOOD ORDER AND On 18.09.07 at BOP Sachldanandan while on Pilg duty as Pillg party commdr from 1800 hrs to 2359 hrs from BP No. 987/2-S to BP No. 967/5-S ( Picket No.445 to 581) he did not stop his under command No.00444045 Ct Ranjit Dass to assist the smuggler to cross Cattle to Bangladesh through the fencing area stretching IBB fence.

THIRD CHARGE BSF ACT, 1968 SECTION 40: AN ACT PREJUDICIAL TO GOOD ORDER AND On 18.09.07 at BOP Sachdanandan while on Pilg duty as Pillg party commdr froml800 hrs to 2359 hrs from BP No. 987/2-S to BP No. 967/5-S ( Picket No.445 to 581) instead of performing duties together as per instruction he remained away from his buddy NO. 00444045 Ct Ranjit Dass due to which Ct Ranjit Dass could assist smugglers to cross Cattle to Bangladesh and thereby had violated the instructions.”

3. The Petitioner pleaded “Not Guilty” to the first charge and “Guilty” to the second and the third charges. The Unit Commandant, thereafter, proceeded for preparation of Record of Evidence. The Record of Evidence was prepared in the presence of the Petitioner and the Petitioner was given an opportunity to examine the witnesses and to make a statement in his defence and to produce defence witnesses. The Petitioner cross-examined most of the Prosecution Witnesses in the Record of Evidence but did not produce any defence witnesses. The Petitioner made an oral statement in his defence which has been recorded in the Record of Evidence by the Recording Officer. On the perusal of the Record of Evidence it was felt that a prima-facie case has been made out against the Petitioner and, therefore, the Commandant decided to dispose of the case by holding a Summary Security Force Court (SSFC) proceeding against the Petitioner herein. The SSFC trial of the petitioner was conducted by the Commandant 142 Battalion BSF on three charges under Section 40 of BSF Act 1968. During the SSFC trial the petitioner pleaded "Not Guilty" to the first charge and "Guilty" to the second and third charges. The SSFC found sufficient evidence to substantiate the first charge against the Petitioner and accordingly, found the Petitioner “Guilty” of the first charge. After compliance with provisions of BSF Rule 142(2), the Court recorded the finding of “Guilty” on second and third charges also. The SSFC vide Order dated 09.10.2007, after recording its findings, awarded the sentence of “dismissal from service” to the Petitioner. The said Order was approved by the DIG, BSF, on 10.11.2007. The Petitioner submitted a statutory Petition under Section 117 of the BSF Act read with Rule 167(2) of the BSF Rules to the Director General of BSF and the same was rejected by the Director General, BSF, vide Order dated 29.05.2008. It is these Orders which have been challenged by the Petitioner in the present Petition.

4. Learned Counsel for the Petitioner states that the entire case of the prosecution is based on nil evidence. He states that the entire case is based on the allegation of a single person, who was in the state of intoxication. He states that the Commandant was personally interested in the matter and the Petitioner has been implicated in the present case only on the instructions of the Commandant.

5. Per contra, learned Counsel appearing for the Respondents states that the SSFC Trial was conducted in accordance with the BSF Rules and the Petitioner has been awarded full opportunity to explain his case and to crossexamine all the witnesses. He states that the SSFC came to the conclusion that the Petitioner is guilty of all the three charges framed against him after thorough examination.

6. Heard the learned Counsels for the parties and perused the material on record.

7. A perusal of the witnesses in the SSFC trial shows that the Petitioner was assisting the smugglers to take small calves across the border by loosening the hooks and stretching the barbed wire. A perusal of the statement of PW-1, Head Constable Gopal Singh, who was the eye-witness, shows that the Petitioner was actively assisting the smugglers in smuggling the calves and when he confronted the Petitioner herein, the Petitioner apologized and sought forgiveness. PW-2, who is a resident of the area where the incident took place, stated that when he visited the scene he found that hooks were removed from the fence and barbed wire has been stretched to facilitate crossing of cattle through the paddy filed. PW-3, PW-4 and PW- 5 have also all substantiated the charges against the Petitioner herein. In view thereof, the defence raised by the Petitioner that he is being implicated does not found acceptance by this Court.

8. The scope of interference of a Writ Court, exercising jurisdiction under Article 226 of the Constitution of India, in a disciplinary proceeding is well settled. While exercising power under Article 226 of the Constitution, this Court cannot act as an Appellate Court, and it is not within its purview to re-appreciate the evidence. The extraordinary jurisdiction can be exercised where the findings recorded are manifestly perverse or unsupported by any evidence on record, or where the procedure adopted suffers from violations of the principles of natural justice or mandatory statutory provisions, or where the punishment imposed is so grossly disproportionate to the offence as to shock the conscience of this Court. The Apex Court in S.N. Mukherjee v. Union of India, (1990) 4 SCC 594, has observed as under: “44. From the provisions referred to above it is evident that the judge-advocate plays an important role during the course of trial at a general court martial and he is enjoined to maintain an impartial position. The court martial records its findings after the judge-advocate has summed up the evidence and has given his opinion upon the legal bearing of the case. The members of the court have to express their opinion as to the finding by word of mouth on each charge separately and the finding on each charge is to be recorded simply as a finding of “guilty” or of “not guilty”. It is also required that the sentence should be announced forthwith in open court. Moreover Rule 66(1) requires reasons to be recorded for its recommendation in cases where the court makes a recommendation to mercy. There is no such requirement in other provisions relating to recording of findings and sentence. Rule 66(1) proceeds on the basis that there is no such requirement because if such a requirement was there it would not have been necessary to make a specific provision for recording of reasons for the recommendation to mercy. The said provisions thus negative a requirement to give reasons for its finding and sentence by the court martial and reasons are required to be recorded only in cases where the court martial makes a recommendation to mercy. In our opinion, therefore, at the stage of recording of findings and sentence the court martial is not required to record its reasons and at that stage reasons are only required for the recommendation to mercy if the court martial makes such a recommendation.”

9. A perusal of the abovementioned Judgment shows that the SSFC is not required to provide detailed reasons for its findings, but has to give its opinion as to whether an individual is “Guilty” or “Not Guilty” of the Charges framed against him. This Court is of the opinion that the SSFC has scrupulously followed the procedure prescribed under the BSF Act and Rules.

10. The Apex Court in Union of India & Anr. v. Dinesh Kumar, (2010) 3 SCC 161, has held as under:

11. This Court has perused the evidence in detail, which clearly reflect that all the witnesses have supported the case of the prosecution. As stated above, there is virtually no defence of the Petitioner. This Court is, therefore, not inclined to interfere with the findings rendered by the SSFC and the Director General, BSF. Resultantly, the present Petition is dismissed, along with all the pending applications, if any.

SUBRAMONIUM PRASAD, J. SAURABH BANERJEE, J. AUGUST 07, 2025