TaxTMI 
TaxTMI 
2023 (4) TMI 1261
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....e post of Commandant in the Force as well as granted selection grade in the rank of Commandant. He was also awarded various medals, including the Police Medal in 1994 by Hon'ble the President of India for rendering about 30 years of unblemished service. Later, he was transferred to Punjab as Commandant of the 1956 Battalion (BN) (BSF) with Headquarters at Mamdot, Punjab. 4. On 05.04.1995, 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 (hereinafter referred to as the "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. 5. On 07.04.1995, 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 recov....
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.... 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. 14. 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. 15. On 19.09.1997 [1997 SCC OnLine P&H 1176], the appellant was granted bail by the High Court and he remained on bail w.e.f., 19.09.1997 till 19.02.2010. 16. In the meantime, the other co-accused viz. Lakhwinder Singh was discharged by the learned Trial Court in the absence of any evidence. 17. The High Court dismissed Criminal Writ Petition No. 3 of 1997 on 19.02.2010, which is the Impugned Judgment. SUBMISSIONS BY THE APPELLANT: 18. Learned counsel for the appellant submitted that as far as Charge No.1 was conc....
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.... under and in terms of Section 59(3) of the NDPS Act. It was further contended that Rule 102 of the BSF Rules, 1969 (hereinafter referred to as "the Rules") provides that only one sentence shall be awarded in respect of all the offences of which the accused is found guilty. However, in the present case three punishments were given, which contravenes Rule 102 of the Rules read with Section 48 of the BSF Act. 20. It was the submission of learned counsel that the sentence of dismissal from service is also illegal as the appellant retired on 31.08.1995, even before the issuance of the charge sheet in question and thus there cannot be any sentence of dismissal from service, which is made clear from Rule 166 of the Rules, which stipulate that the sentence of dismissal shall take effect from the date of promulgation of such sentence or from any subsequent date as may be specified at the time of promulgation, which in the present case is much after the superannuation of the appellant from service. Likewise, it was contended that once the first charge sheet dated 04.07.1995 was dropped, apparently for insufficient evidence, the appellant was required to be discharged under Rule 59(1)(i) of....
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....fferent authorities seeking release of his dues or a copy of the order by which the same have been withheld, filed alongwith the application seeking early hearing i.e. Crl. M.P. No. 74756/2021 at Pages 16-17. 24. It was also submitted that as far as Acetic Anhydride is concerned, it is neither a narcotic drug nor a psychotropic substance, but only a controlled substance under Section 9A of the NDPS Act, punishable under Section 25A of the NDPS Act. 25. Summing up, it was submitted by learned counsel for the appellant that there have also been violations of other statutory provisions of the BSF Act and the Rules and the principles of natural justice were not conformed to during trial. SUBMISSIONS OF THE RESPONDENTS: 26. Per contra, learned senior counsel for the respondents supported the Judgment under challenge. It was submitted that there was no infirmity in the appellant being tried separately as he was charged under the NDPS Act and under Sections 40 & 46 of the BSF Act read with Section 25 of the NDPS Act. 27. It was urged that Subedar Didar Singh was tried and convicted by GSFC and sentence of forfeiture of ten years of service for the purpose of pension and severe repri....
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....pressing no opinion thereon, we leave those question(s) of law open for adjudication in a more appropriate case, as we are interfering on merits. 32. In Council of Civil Service Unions v Minister for the Civil Service, [1984] 3 WLR 1174 (HL), the House of Lords, speaking through Lord Diplock, stated: "... Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community; ..." (emphasis supplied) 33. In Bhagat Ram v State of Himachal Pradesh, (1983) 2 SCC 442, it was opined: "15. ... It is equally true that the penalty imposed mu....
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....the appellant has served the country for over 31 ½ years without blame or blemish, and has received various awards, inter alia, including medal from Hon'ble the President of India. The appellant's track record is otherwise unquestionable. 39. There is no quarrel with the propositions enunciated in Jitendra Kumar Srivastava (supra) and Veena Pandey (supra). The need to restate the settled position of law in, inter alia, D S Nakara v Union of India, (1983) 1 SCC 305; State of West Bengal v Haresh C Banerjee, (2006) 7 SCC 651, and; Dr Hira Lal v State of Bihar, (2020) 4 SCC 346, is obviated - this Court has taken the consistent view that a person cannot be deprived of pension dehors the authority of law. 40. If things stood only thus, we may have considered remanding the matter back to the GSFC. But, given the long period of time elapsed, the age of the appellant, and our finding below on the evidentiary aspect, we refrain from adopting that course of action. 41. On the alleged criminality, the undisputed and uncontroverted fact remains that the appellant was commanding the Force operating over a large area, including from where the Jerrycans allegedly moved from the Indian ....
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....n several decisions of this Court that based on the consideration of other evidence on record and if such evidence sufficiently supports the case of the prosecution and if it requires further support, the confession of a co-accused can be pressed into service and reliance can be placed upon it. In other words if there are sufficient materials to reasonably believe that there was concert and connection between the persons charged with the commission of an offence based on a conspiracy, it is immaterial even if they were strangers to each other and were ignorant of the actual role played by them of such acts which they committed by joint effort. Going by Section 30 of the Evidence Act, when more than one person are being tried jointly for the same offence and a confession made by one of such persons is found to affect the maker as well as the co-accused and it stands sufficiently proved, the Court can take into consideration such confession as against other persons and also against the person who made such confession from the above proposition, we can make reference to the decisions of this Court in Natwarlal Sakarlal Mody v. State of Bombay [(1963) 65 Bom LR 660 (SC)] and Govt. (NCT....
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....of the civil court are not amenable to writ jurisdiction under Article 226 of the Constitution. 29.2. Jurisdiction under Article 227 is distinct from jurisdiction under Article 226. 29.3. Contrary view in Surya Dev Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] is overruled." 50. Article 226 of the Constitution is a succor to remedy injustice, and any limit on exercise of such power, is only self-imposed. Gainful reference can be made to, amongst others, A V Venkateswaran v Ramchand Sobhraj Wadhwani, (1962) 1 SCR 573 and U P State Sugar Corporation Ltd. v Kamal Swaroop Tandon, (2008) 2 SCC 41. The High Courts, under the Constitutional scheme, are endowed with the ability to issue prerogative writs to safeguard rights of citizens. For exactly this reason, this Court has never laid down any strait-jacket principles that can be said to have "cribbed, cabined and confined" [to borrow the term employed by the Hon. Bhagwati, J. (as he then was) in E P Royappa v State of Tamil Nadu, AIR 1974 SC 555] the extraordinary powers vested under Articles 226 or 227 of the Constitution. Adjudged on the anvil of Nawab Shaqafath Ali Khan (supra), this was a fit case for the High Cou....