Supreme Court quashes BSF Commandant’s conviction in NDPS case: B.S. Hari vs. Union of India (2023)

Date of the Judgment: 13 April 2023

Citation: 2023 INSC 369

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

The Supreme Court of India addressed the question of whether a high-ranking officer in the Border Security Force (BSF) could be convicted for offenses under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) based primarily on the testimony of a subordinate. The court also examined whether the punishment was proportionate to the alleged misconduct. This case involved a BSF Commandant who was convicted by a General Security Force Court (GSFC) for charges related to the smuggling of a controlled substance. The Supreme Court bench, comprising Justices Krishna Murari and Ahsanuddin Amanullah, overturned the conviction, citing a lack of direct evidence and disproportionate punishment.

Case Background

The appellant, B.S. Hari, joined the Indian Army on 09 February 1964 and was later absorbed into the Border Security Force (BSF) as an Assistant Commandant on 04 June 1969. He was promoted to Commandant and awarded the Police Medal in 1994 for 30 years of unblemished service. In 1995, while serving as Commandant of the 1956 Battalion (BN) (BSF) in Punjab, a search by local police led to the discovery of Acetic Anhydride, a controlled substance under the NDPS Act, near the border. The appellant was subsequently implicated in the smuggling of the substance based on the statement of a subordinate officer.

On 05 April 1995, local police lodged a First Information Report (FIR) stating that a few jerrycans of Acetic Anhydride were found in fields near the border. On 07 April 1995, the appellant was directed to hand over charge and was placed under arrest. A Staff Court of Inquiry was ordered on 09 April 1995. The inquiry report stated that Inspector Didar Singh, who was in charge of the area where the jerrycans were found, stated that he was involved in the incident at the behest of the appellant. Based on this, the appellant was initially issued a charge sheet under Sections 40 & 46 of the Border Security Force Act, 1968 (BSF Act), which was later dropped.

A fresh charge sheet was served on 20 October 1995, containing three charges: two under Section 46 of the BSF Act for a civil offense under Section 25 of the NDPS Act, and one under Section 40 of the BSF Act. The trial commenced on 30 October 1995, before a General Security Force Court (GSFC). The appellant’s writ petition challenging the GSFC’s jurisdiction was dismissed by the High Court on 18 January 1996. Meanwhile, one of the accused smugglers, Surjit Singh @ Pahalwan, had his FIR quashed by the High Court on 01 November 1996, as he was in jail on the date of the alleged incident. On 10 April 1996, the GSFC found the appellant guilty of the second and third charges, sentencing him to 10 years’ rigorous imprisonment, a fine of Rs. 1,00,000, and dismissal from service. The appellant’s statutory petition against the conviction was rejected on 02 November 1996. Consequently, the appellant filed a criminal writ petition before the High Court, which was dismissed on 19 February 2010. The appellant was granted bail by the High Court on 19 September 1997, and remained on bail until the dismissal of his writ petition.

Timeline

Legal Framework

The appellant was charged under the following legal provisions:

• 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 pertains to civil offenses, which are offenses punishable under any law in force in India.
• Section 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act): This section deals with punishment for allowing premises, etc., to be used for commission of an offence.
• Section 9A of the NDPS Act: This section defines controlled substances. Acetic Anhydride is classified as a controlled substance under this section.
• Section 25A of the NDPS Act: This section prescribes punishment for contravention of orders made under Section 9A.

The BSF Act and the NDPS Act are the primary statutes relevant to this case. The BSF Act governs the conduct and discipline of BSF personnel, while the NDPS Act deals with offenses related to narcotic drugs and psychotropic substances. The appellant was tried under both these statutes.

Arguments

Appellant’s Submissions:

• The appellant argued that Charge No. 2, of knowingly permitting the smuggling of Acetic Anhydride, was unsustainable because one accused was in jail on the date of the incident and the other was discharged due to lack of evidence.
• The appellant contended that Charge No. 3, of acting prejudicial to good order and discipline, was based on the unreliable statement of Subedar Didar Singh, who was trying to save himself.
• The appellant argued that the trial was a nullity because the BSF Act does not allow the GSFC to try offenses under the NDPS Act without the Central Government’s sanction under Section 59(3) of the NDPS Act.
• The appellant submitted that Rule 102 of the BSF Rules, 1969, mandates only one sentence for all offenses, but three punishments were given.
• The appellant argued that the sentence of dismissal was illegal, as he had already retired before the charge sheet was issued, and Rule 166 of the BSF Rules stipulates that dismissal takes effect from the date of promulgation of the sentence.
• The appellant contended that once the first charge sheet was dropped, he should have been discharged under Rule 59(1)(i) of the BSF Rules, and the second charge sheet was illegal.
• The appellant submitted that withholding his pension, gratuity, and other benefits was illegal under Rule 9 of the Central Civil Services (Pension) Rules, 1972, which states that only the President of India can withhold pension.
• The appellant relied on State of Jharkhand v Jitendra Kumar Srivastava, (2013) 12 SCC 210 and Veena Pandey v Union of India, (2022) 2 SCC 379, to argue that pension cannot be deprived without the authority of law.
• The appellant argued 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 argued that there were violations of the BSF Act and Rules and principles of natural justice during the trial.

Respondents’ Submissions:

• The respondents argued that the appellant was correctly tried separately under the NDPS Act and Sections 40 & 46 of the BSF Act.
• The respondents submitted that Subedar Didar Singh and other personnel were also convicted by the GSFC, indicating their involvement.
• The respondents contended that the appellant could not benefit from the discharge of the alleged smugglers, as the appellant was charged under Section 25 of the NDPS Act for allowing the smuggling, not for the act of smuggling itself.
• The respondents argued that the appellant, as the overall commander, was responsible for the incidents, and the contraband could not have moved without the involvement of BSF personnel.
• The respondents stated that the appellant was paid GPF and CGEIS, and provisional pension was stopped under Rule 24 of the Pension Rules, as dismissal entails forfeiture of past service.

Issues Framed by the Supreme Court

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

1. Whether the conviction of the appellant by the GSFC was justified based on the evidence presented.
2. Whether the punishment awarded to the appellant was proportionate to the alleged misconduct.
3. Whether the High Court was correct in dismissing the criminal writ petition filed by the appellant.
4. Whether the withholding of pensionary benefits of the appellant was justified.
5. Whether the procedure followed by the GSFC was in accordance with law.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

How each authority was viewed by the Court?

• Council of Civil Service Unions v Minister for the Civil Service [CITATION]*: The Court used this case to classify the grounds for judicial review of administrative action and to lay the foundation for the principle of proportionality.
• Bhagat Ram v State of Himachal Pradesh [CITATION]*: The Court relied on this case to emphasize that penalties must be proportionate to the misconduct.
• Ranjit Thakur v Union of India [CITATION]*: The Court used this case to highlight that disproportionate punishment warrants judicial interference.
• Andhra Pradesh Industrial Infrastructure Corporation Limited v S N Raj Kumar [CITATION]*: The Court relied on this case to define the principle of proportionality, which involves a balancing test.
• State of Jharkhand v Jitendra Kumar Srivastava [CITATION]*: The Court relied on this case to support the argument that a person cannot be deprived of pension without the authority of law.
• Veena Pandey v Union of India [CITATION]*: The Court relied on this case to emphasize that pension is a hard-earned benefit and a form of property.
• D S Nakara v Union of India [CITATION]*: The Court relied on this case to reiterate the consistent view that a person cannot be deprived of pension without the authority of law.
• State of West Bengal v Haresh C Banerjee [CITATION]*: The Court relied on this case to reiterate the consistent view that a person cannot be deprived of pension without the authority of law.
• Dr Hira Lal v State of Bihar [CITATION]*: The Court relied on this case to reiterate the consistent view that a person cannot be deprived of pension without the authority of law.
• Mohd. Jamiludin Nasir v State of West Bengal [CITATION]*: The Court used this case to discuss the evidentiary value of a co-accused’s confession, emphasizing that it cannot be the sole basis for conviction.
• Nawab Shaqafath Ali Khan v Nawab Imdad Jah Bahadur [ CITATION]*: The Court relied on this case to highlight that the High Court has the jurisdiction to convert a writ petition into an appeal.
• Surya Dev Rai v Ram Chander Rai [CITATION]*: The Court used this case to highlight that High Courts must exercise discretion based on judicial conscience.
• Radhey Shyam v Chhabi Nath [CITATION]*: The Court used this case to clarify that judicial orders of civil courts are not amenable to writ jurisdiction under Article 226.
• A V Venkateswaran v Ramchand Sobhraj Wadhwani [CITATION]*: The Court relied on this case to highlight that Article 226 of the Constitution is a succor to remedy injustice.
• U P State Sugar Corporation Ltd. v Kamal Swaroop Tandon [CITATION]*: The Court relied on this case to highlight that Article 226 of the Constitution is a succor to remedy injustice.
• E P Royappa v State of Tamil Nadu [CITATION]*: The Court used this case to emphasize that the extraordinary powers vested under Articles 226 or 227 of the Constitution are not “cribbed, cabined and confined”.
• Section 40 of the BSF Act: The Court acknowledged this section as one of the charges against the appellant.
• Section 46 of the BSF Act: The Court acknowledged this section as one of the charges against the appellant.
• Section 25 of the NDPS Act: The Court acknowledged this section as one of the charges against the appellant.
• Section 9A of the NDPS Act: The Court acknowledged this section as defining controlled substances.
• Section 25A of the NDPS Act: The Court acknowledged this section as prescribing punishment for contravention of orders made under Section 9A.
• Rule 102 of the BSF Rules, 1969: The Court noted this rule, which mandates only one sentence for all offenses.
• Rule 166 of the BSF Rules, 1969: The Court noted this rule, which stipulates that the sentence of dismissal takes effect from the date of promulgation.
• Rule 59(1)(i) of the BSF Rules, 1969: The Court noted this rule, which provides for the discharge of an accused when the charge sheet is dropped.
• Rule 9 of the Central Civil Services (Pension) Rules, 1972: The Court relied on this rule, which provides that only the President of India can withhold pension.
• Rule 24 of the Central Civil Services (Pension) Rules, 1972: The Court noted this rule, which was the basis for stopping the provisional pension of the appellant.
• Rule 69 of the Central Civil Services (Pension) Rules, 1972: The Court noted this rule, which was the basis for payment of provisional pension.

Decision

The Supreme Court allowed the appeal and quashed the conviction and sentence awarded by the GSFC. The Court held that the conviction was based on weak evidence and that the punishment was disproportionate. The Court also held that the withholding of pensionary benefits was illegal. The Court did not express any opinion on the procedural deficiencies in the trial by GSFC and left it open for adjudication in a more appropriate case.

Flowchart of the Case