Supreme Court Quashes BSF Commandant’s Conviction in Acetic Anhydride Case: B.S. Hari vs. Union of India (2023)

Date of the Judgment: 13 April 2023

Citation: 2023 INSC 336

Judges: Krishna Murari, J., Ahsanuddin Amanullah, J.

Can a high-ranking officer be held responsible for the actions of their subordinates without direct evidence? The Supreme Court of India recently addressed this critical question in a case involving a Border Security Force (BSF) Commandant convicted for offenses related to the smuggling of Acetic Anhydride. The Court examined whether the conviction was justified based on the available evidence and if the punishment was proportionate to the alleged offense. The judgment was delivered by a two-judge bench comprising Justice Krishna Murari and Justice Ahsanuddin Amanullah, with the majority opinion authored by Justice Ahsanuddin Amanullah.

Case Background

The appellant, B.S. Hari, joined the Indian Army in 1964 and was later absorbed into the Border Security Force (BSF) in 1969, eventually rising to the rank of Commandant. He served for over 30 years with an unblemished record, earning a Police Medal in 1994. In 1995, while serving as Commandant of the 1956 Battalion in Punjab, a search by local police led to the discovery of Acetic Anhydride, a controlled substance, in fields near the border. This discovery led to a series of events that culminated in the appellant’s conviction by a General Security Force Court (GSFC).

The appellant was initially charged based on an inquiry report that implicated him through a statement from his subordinate, Inspector Didar Singh, who claimed involvement at the appellant’s behest. Despite the charges being dropped initially, a fresh charge sheet was issued, leading to a trial where the appellant was found guilty on two of three charges. The High Court of Punjab and Haryana dismissed the appellant’s writ petition challenging his conviction, leading to the present appeal before the Supreme Court.

Timeline

Course of Proceedings

The appellant initially challenged the jurisdiction of the GSFC by filing a writ petition before the High Court, which was dismissed. Subsequently, one of the accused smugglers, Surjit Singh @ Pahalwan, had the FIR against him quashed by the High Court on the grounds that he was in jail on the date of the alleged incident. Despite this, the GSFC found the appellant guilty on two charges, sentencing him to 10 years’ rigorous imprisonment, a fine of Rs. 1,00,000, and dismissal from service. The High Court later dismissed the appellant’s criminal writ petition, which led to the appeal before the Supreme Court.

Legal Framework

The case involves several key legal provisions:

• Section 9A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act): This section deals with controlled substances. Acetic Anhydride is classified as a controlled substance under this section.
• Section 25 of the NDPS Act: This section specifies the punishment for offenses related to controlled substances.
• Section 40 of the Border Security Force Act, 1968 (BSF Act): This section deals with acts prejudicial to good order and discipline of the Force.
• Section 46 of the BSF Act: This section deals with civil offenses.
• Section 59(3) of the NDPS Act: This section requires sanction from the Central Government for initiating trial against the appellant.
• Rule 102 of the BSF Rules, 1969: This rule states that only one sentence shall be awarded in respect of all the offences of which the accused is found guilty.
• Rule 166 of the BSF Rules, 1969: This rule stipulates 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.
• Rule 59(1)(i) of the BSF Rules, 1969: This rule states that if a charge sheet is dropped, the appellant was required to be discharged.
• Section 75 of the BSF Act: This section prohibits a second trial for the same offense.
• Rule 9 of the Central Civil Services (Pension) Rules, 1972: This rule provides that only the President of India can withhold the pension of an employee.
• Rule 24 of the Central Civil Services (Pension) Rules, 1972: This rule states that dismissal from service entails forfeiture of past service.
• Rule 69 of the Central Civil Services (Pension) Rules, 1972: This rule deals with provisional pension.

Arguments

Appellant’s Submissions:

• The appellant argued that the charges against him were not proven. Specifically, regarding Charge No. 2, the appellant contended that it was unsustainable as one of the accused, Surjit Singh @ Pahalwan, was acquitted by the High Court, and the other, Lakhwinder Singh, was discharged by the trial court, thus, the case against the appellant automatically fails.
• The appellant also argued that the statement of Subedar Didar Singh, his subordinate, was made to save himself and was unreliable.
• It was contended that the trial itself was a nullity as the BSF Act does not envisage the GSFC trying offence(s) under the NDPS Act and it also did not obtain the requisite sanction from the Central Government for initiating trial against the appellant as required under and in terms of Section 59(3) of the NDPS Act.
• The appellant contended that the sentence of dismissal was illegal as he had already retired, and the rules stipulate that the dismissal takes effect from the date of promulgation of the sentence, which was after his retirement.
• The appellant argued that the second charge sheet was illegal as the rules only provide for amendment of a charge sheet, not a new one.
• The appellant argued that withholding his pension and other benefits was illegal and violated the Central Civil Services (Pension) Rules, 1972.
• It was contended that Acetic Anhydride is a controlled substance, not a narcotic drug or psychotropic substance, and is punishable under Section 25A of the NDPS Act.
• The appellant contended that there have 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.

Respondents’ Submissions:

• The respondents argued that the appellant was correctly tried under the NDPS Act and the BSF Act.
• The respondents contended that the discharge of the two smugglers did not affect the case against the appellant, as he was charged under Section 25 of the NDPS Act for facilitating the smuggling.
• The respondents submitted that the contraband could not have been taken out of the area without passing through the gates under the appellant’s control.
• The respondents stated that other officers involved in the incident were also tried and convicted.
• The respondents submitted that the appellant had been paid GPF and CGEIS and that the provisional pension was stopped as dismissal from service entails forfeiture of past service.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section, but the core issues addressed were:

1. Whether the conviction of the appellant was justified based on the available evidence, particularly the statement of a subordinate.
2. Whether the punishment awarded to the appellant was proportionate to the alleged offense.
3. Whether the High Court was right in not examining the evidence in a criminal writ petition.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Court relied on the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Court relied on Council of Civil Service Unions v Minister for the Civil Service [CITATION] to establish the grounds for judicial review.
• The Court relied on Bhagat Ram v State of Himachal Pradesh [CITATION] to emphasize that penalties must be proportionate to the misconduct.
• The Court relied on Ranjit Thakur v Union of India [CITATION] to highlight that punishments should not be strikingly disproportionate.
• The Court relied on Andhra Pradesh Industrial Infrastructure Corporation Limited v S N Raj Kumar [CITATION] to explain the principle of proportionality.
• The Court relied on State of Jharkhand v Jitendra Kumar Srivastava [CITATION] and Veena Pandey v Union of India [CITATION] to hold that pension is a right and cannot be deprived without authority of law.
• The Court relied on D S Nakara v Union of India [CITATION], State of West Bengal v Haresh C Banerjee [CITATION], and Dr Hira Lal v State of Bihar [CITATION] to reiterate that pension cannot be deprived without legal authority.
• The Court relied on Mohd. Jamiludin Nasir v State of West Bengal [CITATION] to discuss the evidentiary value of a co-accused’s confession.
• The Court relied on Nawab Shaqafath Ali Khan v Nawab Imdad Jah Bahadur [CITATION] to emphasize the power of the High Court to examine evidence.
• The Court referred to Surya Dev Rai v Ram Chander Rai [CITATION] and Radhey Shyam v Chhabi Nath [CITATION] to discuss the High Court’s powers under Articles 226 and 227, noting that Surya Dev Rai was partly overruled.
• The Court relied on A V Venkateswaran v Ramchand Sobhraj Wadhwani [CITATION] and U P State Sugar Corporation Ltd. v Kamal Swaroop Tandon [CITATION] to emphasize that Article 226 is a remedy against injustice.
• The Court referred to E P Royappa v State of Tamil Nadu [CITATION] to highlight the extraordinary powers of the High Court under Articles 226 and 227.

What weighed in the mind of the Court?

The Supreme Court was primarily swayed by the lack of direct evidence against the appellant and the disproportionate nature of the punishment. The Court emphasized that the appellant’s conviction was based solely on the statement of a subordinate, Subedar Didar Singh, who had a clear motive to shift blame. The Court also highlighted the appellant’s long and unblemished service record, including a medal from the President of India, which further underscored the injustice of the harsh penalty. The Court was also influenced by the fact that the other accused in the case were either acquitted or discharged, which weakened the prosecution’s case against the appellant.

Fact:Law

The Court’s decision was driven more by the factual aspects of the case, such as the lack of direct evidence and the circumstances surrounding the subordinate’s testimony, rather than purely legal interpretations.

Logical Reasoning:

The Court considered alternative interpretations, such as the possibility of the appellant’s involvement due to his overall command, but rejected them due to the lack of direct evidence. The Court’s final decision was based on its assessment of the evidence and the principle of proportionality.

The Court’s decision was based on the following reasons:

• The lack of direct evidence against the appellant.
• The unreliability of the subordinate’s statement.
• The disproportionate nature of the punishment.
• The appellant’s long and unblemished service record.
• The acquittal or discharge of other accused persons.

The Court did not have a dissenting opinion.

The Court’s decision implies that high-ranking officers cannot be held liable for the actions of their subordinates without direct evidence of their involvement. It also reinforces the principle of proportionality in sentencing, ensuring that punishments are commensurate with the gravity of the offense.

The judgment introduces no new legal principles but reinforces the existing principles of proportionality and the evidentiary value of a co-accused’s statement.

The Court rejected the argument that the appellant’s overall command made him responsible, emphasizing the need for direct evidence of involvement.

“… the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review.”

“… 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 confession of a co-accused cannot be treated as substantive evidence to convict other than the person who made the confession on the evidentiary value of it.”

Key Takeaways

• High-ranking officers cannot be convicted solely based on the statements of their subordinates without direct evidence.
• Punishments must be proportionate to the offense and the individual’s service record.
• The High Court has the power to examine the evidence in criminal writ petitions, especially when serious issues are raised.
• Pension and other retirement benefits cannot be withheld without legal authority.

This judgment could impact future cases involving military and paramilitary personnel by emphasizing the need for direct evidence and proportionate sentencing. It also reinforces the importance of judicial review in cases of injustice.

Directions

The Supreme Court directed that the appellant be given full retiral benefits from the date of his superannuation till date, with all payments to be processed within twelve weeks, after adjusting any amounts already paid.

The Court also directed that all Courts and Tribunals number paragraphs in all Orders and Judgments, and the Secretary-General was directed to circulate the judgment to the Registrars General of all High Courts for the adoption of a uniform format for Judgments and Orders.

Development of Law

The ratio decidendi of this case is that a high-ranking officer cannot be convicted solely based on the statement of a subordinate, without direct evidence, and the punishment must be proportionate to the offense. This case reinforces the existing principles of proportionality and the evidentiary value of a co-accused’s statement but does not introduce any new legal doctrines.

Conclusion

The Supreme Court’s decision in B.S. Hari vs. Union of India is a significant ruling that underscores the importance of direct evidence and proportionate punishment in cases involving military and paramilitary personnel. The Court quashed the conviction of the BSF Commandant, emphasizing that a high-ranking officer cannot be held liable based solely on the statement of a subordinate. This judgment reinforces the principles of justice, fairness, and the need for a thorough examination of evidence in legal proceedings.