B.S.Hari, Commandant (Retd.) vs Union of India

M.L. Koul, J. (Oral)

The petitionerconvict B.S. Hari, a dismissed Commandant of B.S.F. by invoking the powers of this court under Articles 226/227 of the Constitution of India is seeking the quashing of the trial held by the General Security Force Court, who vide its finding dated 10.4.1996 convicted the petitioner for an offence as envisaged under Section 25 of the N.D.P.S. Act read with Section 46 of the B.S.F. Act and sentenced him to undergo rigorous imprisonment of ten years and to pay a fine of Rs. 1,00,000/. He also stands dismissed from his service.

The petitioner aggrieved of the said order of conviction and sentence preferred this Criminal Writ Petition challenging various legalities with regard to the trial of the petitioner including the powers of the General Security Force Court that it had no power to convict and sentence him under the N.D.P.S. Act and therefore the proceedings taken in the matter are illegal.

Shortly stated the allegations against the petitioner are that he being the Commandant of some area on the IndoPak border knowingly conspired and allowed two civilians namely Lakhwinder Singh alias Lakha and Surjit Singh alias Pehalwan to smuggle some acetic any by dride from India to Pakistan through border fencing gate No. 205 of BOP Barroke falling under the control of the petitioner.

In this regard the local police recovered 29 jerricans of the said abandoned substance in that area and registered a case against the said civilians on 5.4.1995. After that the B.S.F. authorities got awakened and took action against the petitioner as mentioned above. It was the civil police who sent the samples for analytic report and on that report found that the said substance was acetic anhydride which is a prohibited substance and it can be by anybody under the authority of the Government of India by getting a licence.

At the moment this Court is not concerned to see as to whether the trial held by the General Security Force Court is correct or any illegality has been committed in convicting and sentencing the petitioner because the Court is not hearing the main case for final disposal. At present Mr. Sangha confined his argument for the purposes of bail only.

The fact remains that the case was partly heard by one of the coordinate Benches of this Court (K.S. Kumaran, J.), who afterwards released it and under the directions of Hon''ble the Chief Justice it was entrusted to this Court for disposal.

Mr. Goel, learned counsel for the B.S.F. argued that it is a proclaimed fact that the offences committed by the offenders under the NDPS Act are very serious in nature for by the action of such people very vitals of the society are mutilated and the spectrum of our social system is badly affected. According to him as the petitioner has been convicted for an offence under Section 25 of the N.D.P.S. Act read with Section 46 of the B.S.F. Act and has also been dismissed from service, therefore, he is not entitled to bail because he is not an ordinary accused. In this regard he argued that the N.D.P.S. Act in a manner is both punitive and procedural in nature and being a self contained Act a bar has been laid under Section 32A of the N.D.P.S. Act that a person convicted under any of the offences under the said Act is not entitled to bail.

In this regard to rebut the argument of Mr. Goel, I am motivated to make mention of Section 32A of the N.D.P.S. Act which has a reference to Chapter XXXIIE of the Code of Criminal Procedure. It is material to narrate the said Section 32A of the Act in verbatim which reads as under :

"No suspension, remission or commutation in any sentence awarded under this Act :

Notwithstanding anything contained in the Code of Criminal Procedure 1973 (2 of 1974) or any other law for the time being in force but subject to the provisions of Section 33 no sentence awarded under this Act (other that Section 27) shall be suspended or remitted or commuted."

The said Section of the N.D.P.S. Act has a reference to Chapter XXXIIE of the Code of Criminal Procedure which relates to the power of a State/Central Government not to suspend, remit or commute the sentence. From the simple reading of Section 32A of the N.D.P.S. Act, it transpires and is manifestly clear that this Section does not control the inherent powers of the High Court to suspend the order of sentence appealed against or challenged to be quashed and to release the appellant on bail. This Section only debars the State/Central Government to suspend or remit or commute the sentence. So far as the High Court is concerned, it stands settled that the bar created by Section 32A of the Act does not affect the powers of this Court in granting bail and suspending the sentence.

In the instant case without casting any aspersions on the merits of the case or in any manner adjudicating upon the matter, it is found that no recovery of the narcotic substance has been effected from the personal possession of the petitioner. Rather, it is alleged that he conspired and managed the smuggling of acetic anhydride substance by the smugglers from the border area of which he was the Commandant. This is a moot point which requires proper consideration and adjudication by this Court and that can be done when the main writ petition is decided on merits.

No doubt, it is settled that any offence committed under the N.D.P.S. Act is an offence both against the society and the Nation as well. By such nefarious acts of certain people social values of the society are mutilated and the public order is disturbed and the smugglers get a free hand to deal with the smuggling of narcotic substances. In fact the Courts have to be cautious in dealing with such culprits who are to be dealt with a heavy hand. While doing so we have to see that there is overwhelming, cogent and positive evidence available on the record showing that no other view is possible than the one that such an accused has committed an offence under the provisions of the N.D.P.S. Act beyond any shadow of doubt.

While arguing the case a notification was brought to my notice by the counsel for the B.S.F. to show that acetic anhydride has been deemed to be a controlled substance and anybody can deal with such substance with the permission of the Central Government. Learned counsel for the petitioner argued that at best the petitioner if proved has committed an offence within the ambit of Section 9A of the N.D.P.S. Act and thus he was liable to be convicted under Section 25A of the said Act for which the sentence provided is upto 10 years imprisonment and fine as well. By no stretch of imagination he could be sentenced for an offence under Section 25 of the N.D.P.S. Act, for he was not directly in control of the area or the gate wherefrom the socalled smuggling was being done. There were many other officers/B.S.F. personnel who were directly incharge of the area who have been let off and the petitioner has been made a scapegoat. These legalities of the case which are under consideration in the writ petition itself can be discussed and taken care of at the time the writ petition is disposed of finally on its merits. At this time this Court is not in a position to discuss the merits of the case to observe as to whether the petitioner has been correctly or incorrectly convicted and sentenced. The fact remains that the petitioner was a B.S.F. Officer who on conviction and sentence has been dismissed from service as well. He has been convicted by the General Security Force Court on the basis of the statement of a B.S.F. personnel who was incharge of gate No. 205 wherefrom the alleged smuggling was being done. He has already undergone one year and eight months sentence and besides that he remained in confinement as an offender from 12th April, 1995 till conviction. The whole proceedings held by the Central Security Force Court have been challenged and various legalities of the case have been put to challenge and many niceties of the law are to be discussed at the bar and adjudicated upon by the Court. There is no likelihood that this case can come up for immediate hearing in the near future because there are many old cases of such nature which are pending disposal in this Court. The petitioner holds a family and has not only been convicted and sentenced but has also been dismissed from service. There is none to look after his family and support them especially when he has been dismissed from service.

Once it is held that Section 32A of the Act does not impair the powers of this Court in suspending the sentence and granting bail to the appellant and the petitioner has already remained in jail for more than two years including his confinement during trial, therefore, it is felt necessary that a temporary refuge of bail of six months is granted to him and the sentence is ordered to be suspended for that period. Hence, it is ordered that the petitioner be released on bail for a period of six months on his furnishing bail bonds in the amount of Rs. 40,000/ with one surety and a personal recognizance bond in the like amount to the satisfaction of Chief Judicial Magistrate, Ludhiana. However, the petitioner shall see that his case is listed for hearing within this period. On no ground whatsoever his bail could be extended by this Court if he fails to get his case listed for final hearing during the said period.

Recovery of fine is also stayed till the disposal of the appeal.

Copy of the order be given Dasti to the counsel for the parties.