B. S. Hari Commandant Vs Union of India (Supreme Court of India)
Supreme Court held that conviction based on statement of single person without recovery of any incriminating documents/ articles during search is unjustified. Non-recovery during search obviously benefits the appellant.
Facts- The appellant is an Indian Army personnel. the local police conducted a search and a few Jerrycans of Acetic Anhydride, a controlled substance under Section 9A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”), were stated to be located in Pakistani territory and in the fields owned by Indian civilians adjoining the border, for which First Information Report No. 92 dated 05.04.1995 i.e., on the same day, was lodged in Police Station Ferozepur, Punjab by the local police naming two persons viz. Lakhwinder Singh and Surjit Singh @ pahalwan as the accused showing them to be smugglers.
Thereafter, the appellant was directed to hand over charge and move to the STC, the Force, Kharkan, where he was placed under arrest. However, search of the appellant’s house did not lead to any recovery of any incriminating material(s).
On the basis of the Inquiry Report, the appellant was issued charge sheet dated 04.07.1995 under Sections 40 & 46 of the Border Security Force Act, 1968 (“BSF Act”). However, the charges were dropped.
Thereafter, the appellant superannuated on 31.08.1995 after rendering service in the Force for 31 years, 6 months and 22 days.
On 20.10.1995, a fresh charge sheet containing three charges was served on the appellant. Two charges were under Section 46 of the BSF Act for Civil offence committed in contravention of Section 25 of the NDPS Act and one charge under Section 40 of the BSF Act. Trial against the appellant commenced on 30.10.1995 by convening a General Security Force Court (“GSFC”).
The appellant, invoking Article 226 of the Constitution of India (“Constitution”), filed Writ Petition No. 16008 of 1995 before the High Court, against the rejection of his application questioning jurisdiction of the GSFC, which was dismissed on 18.01.1996.
On 10.04.1996, the GSFC gave its verdict, finding the appellant not guilty of the first charge but guilty of the second and third charges. It sentenced him to 10 years’ Rigorous Imprisonment; imposed fine of Rs. 1,00,000/-, and; dismissed him from service. This was confirmed by the Confirming Officers.
Statutory petition against his conviction and sentence was then filed by the appellant on 15.05.1996. As the same was not being decided by the concerned authority, the appellant moved the High Court vide Civil Writ Petition No. 13020 of 1996, which was disposed of by order dated 28.08.1996, directing the respondent-Authority to dispose of the statutory petition within a period of two months.
Pursuant thereto, the respondent-Authority rejected the appellant’s statutory petition on 02.11.1996. In this light, the appellant filed Criminal Writ Petition No. 3 of 1997 before the High Court for quashing his trial and the impugned order therein, as also seeking directions to quash all consequential orders and to release the pensionary and other benefits to the appellant.
Conclusion- Save and except Subedar Didar Singh’s statement, roping in the appellant, there is no material against him. Hence, ceteris paribus, without other material(s) incriminating the appellant or pointing to his guilt, the statement of a single person alone, ought not to have, in this instance, resulted in his conviction.
This Court is mindful that at the proximate time, the search of the appellant’s house, did not result in recovery of any incriminating documents/articles. Such non-recovery would obviously enure to the appellant’s benefit.
FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER
