Pankaj Naithani And Others vs Union Of India And Others

Aggrieved by the finding of 'guilty' and sentence of 'severe reprimand' along with 'forfeiture of one year service towards promotion' (forfeiture of

service applicable to Applicant No. 1 and Applicant No. 2 only) by General Court convened to investigate charges of illegal sale of Non -Service

Pattern (NSP) weapons, the applicants, who were serving Lt Colonels of the Indian Army, have filed these 0As under Section 15 of the Armed

Forces Tribunal Act, 2007 seeking the following reliefs :

(a) Quash the findings and sentence passed by the GCM, which was subsequently confirmed by the Confirming Authority.

(b) Relieve the applicants from adverse effects of the above on their career, especially promotion to the rank of Colonel or Colonel (TS).

Heard the learned counsels from both sides in detail and perused the pleadings and documents on file.

The facts of the case, as averred by the applicants, are that they had applied for purchase of Non-Service Pattern (NSP) weapons (Pistol 7.62 mm

in case of Applicants Nos. 1 and 3 and Rifle.30 Springfield in case of Applicant No. 2) and were allotted the same from COD Jabalpur, as per laid

down policy, by the respondents. However, Applicants Nos. 1 and 3 had sold the said weapons to private arms dealers in Sri Ganganagar, Rajasthan,

due to various purported reasons, while Applicant No. 2 sold the same to fellow Army Officer. In 2007, a Public Interest Litigation (PIL) was filed by

one Shri Arvind Sharma in sale of In July same. In the Honble Supreme Court alleging unauthorised weapons by military personnel to private arms

dealers. 2007, the print media carried reports of the September, 2007, a letter was received by HQ South Western (SW) Command of the Army from

Govt. of Rajasthan (Home Dept.) mentioning that some Army personnel had sold their NSP weapons to arms dealers and private persons. In the

same month on 17.09.2007 an Intelligence Unit of SW Command submitted a report to HQ SW Command giving out details of the sale of NSP

weapons. In the meanwhile, Court of Inquiry (C of I) was convened by GOC-in-C South Western (SW) Command on 08.09.2007 to investigate into

these allegations/reports. The C of I commenced on 11.09.2007 and concluded on 15.01.2008. On 20.06.2008, Headquarters SW Command directed

for reassembly of C of I to comply with Army Rule 180 and to examine concerned witnesses from office of District Collector, Sri Ganganagar,

Superintendent of Police, Sri Ganganagar and other witnesses, including custom officials. The C of I reassembled on 17.07.2008 and the proceedings

were finally submitted on 21.07.2008. On 25.09.2008, GOC-in-C SW Command, the competent authority, directed disciplinary action against 46

serving officers (including the applicants) and 4 retired officers as well as administrative action against 25 officers. Accordingly, the Convening Order

of the GCM was issued on 06.07.2011 and the GCM commenced on 12.07.2011 (Applicant No. 1), 20.07.2011 (Applicant No. 3) and 24.08.2011

(Applicant No. 2). The GCM found the applicants 'Guilty' and awarded 'Severe Reprimand' to most of them including the three applicants.

Additionally, Applicants Nos. 1 and 2, among some others, were awarded forfeiture of seniority of one year towards promotion. Applicants contend

that their GCM was illegal as it was time barred in keeping with provisions of Section 122 of Army Act, 1950, in that it commenced after a period of

three years had expired from the date of knowledge of the offence. Applicants also contend that despite their offence not being of serious nature, they

were punished severely in a disproportionate manner which has resulted in their nonempanelment not only for promotion to the rank of Colonel but

even to the rank of Colonel (Time Scale) which is given in normal course to Lt Colonels who complete 26 years of service. Hence, this OA.

Learned counsel for the applicant contends that the GCM in respect of the applicants was time-barred as it commenced after expiry of a period of

three years from the knowledge of the offence, contrary to provisions of Section 122 of Army Act, 1950. Section 122(1) is reproduced as hereunder:

Period of limitation for trial.â€" (1) Except as provided by sub-section (2), no trial by court- martial of any person subject to this Act

for any offence shall be commenced after the expiration of a period of three years and such period shall commence,â€

(a) on the date of the offence; or

(b) where the commission of the offence was not known to the person aggrieved by the offence or to the authority competent to initiate action,

the first day on which such offence comes to the knowledge of such person or authority, whichever is earlier; or

(c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person

aggrieved by the offence or to the authority competent to initiate action, whichever is earlier.]

(2) xxx XXX XXX

(3) XXX XXX XX)C

(4) 7= xxx xxx

Learned counsel has also referred to Army Headquarters policy letter No. 01086/122/AG/DV-1(P) dated 12.04.2001 which has clarified the issue

as follows :

A close scrutiny of the aforementioned provisions reveals that the statutory period of limitation, prescribed vide the section ibid reckons

from the earliest date on which the aggrieved person or the authority competent to initiate action comes to know, firstly, the nature of the

offence committed and, secondly, the identity of the offender. Thus, the period of limitation will commence.

(a) Under clause (a) ibid, on the date the commission of the offence provided on that date there is knowledge both of the offence and the

identity of the offender. To put it slightly differently, clause (a) will not apply, if, on the date of the commission of the offence, either the

offence as such, or the identity of the offender is not known.

(b) Under clause (b) ibid, ""on the first day on which the offence comes to the knowledge of the person aggrieved thereby or of the authority

competent toinitiate action, whichever is earlier"", if, on that date itself the identity of the offender is also known. Clause (b) will not apply, if

on the date specified therein, though there is knowledge of the commission of the offence, there is no knowledge of the identity of the

offender i.e. though the offence is known, the offender is not known.

(c) Under clause (c) ibid, ""on the first day on which the identity of the offender is known to the person aggrieved by the offence or to the

authority competent to initiate action, whichever is earlier"". Clause (c) pre -supposes knowledge of the offence.

The fact that clauses (a), (b) and (c) ibid are disjunctive indicates different commencement points of period of limitation depending on

facts of each case. Therefore, the date from which the period of limitation is to be reckoned, is necessarily a question of fact, to be

determined with regard to the facts and circumstances of each case."" Counsel has thus contended that the period of limitation commenced

on 17.09.2007 when a report on the NSP weapon sales was submitted by an Intelligence Unit of SW Command to HQ SW Command. In this

regard, he controverted the argument by the respondents that the period of limitation commenced only on 25.09.2008 when the competent

authority, GOC-in-C SW Command, after analysis of the C of I, directed disciplinary action against the applicants along with the others

against whom a case was made out in the C of I.

Reliance is also placed on the judgment of the Hon'ble Apex Court dated 10.08.2010 in the matter of J.S. Sekhon Vs. Union of India & Another

[(2010) 11 SCC 586]. Para 18 of the said judgment is reproduced as under:

The report of the court of inquiry finally proved an established fact that the appellant has committed an offence alleged against him and therefore

the knowledge, if any, regarding the commission of the offence by the authority competent to convene the General Court Martial could be said to be

on 11-10-1996, when the aforesaid court of inquiry report was submitted or at the most it could be said that such knowledge was derived by the

authority competent to initiate action of convening the General Court Martial on submissions of the report by the Technical Board of Officers which

was dated 9-4-1995. If the period of limitation is computed either from 9-4-1995 or 11-10-1996, the convening of the trial by General Court Martial on

9-3-1998 must be held to be within the period of limitation as prescribed under Section 122 of the Act.

Counsel has contended that the authority competent to convene the C of I, viz. GOC-in-C SW Command, would have come to know of the offence

on receipt of report from the Intelligence Unit of SW Command which knowledge would have been further clarified when the C of I was first

submitted on 02.02.2008. Either way, the latest date of expiration of the period of limitation was 02.02.2011 and thus the commencement of GCM on

12.07.2011 was illegal as it was over six months beyond the period of limitation. Counsel has also made reference to the advisory issued by the

respondents vide Army Headquarters circular dated 29.07.2015 whereas it is confirmed that the respondents were aware of the observation of the

Honble Supreme Court in the J.S. Sekhon case (supra). Para 3 of the said circular is reproduced as hereunder:

In a recent case, Honible AFT (RB), Guwahati, relying on the decision of Apex Court in the case of JS Sekhon v/s. UOI [2010 (11) SCC

586] computed the period of limitation from the date proceedings of the Court of Inquiry were submitted to the competent authority and not

from the date of directions of the competent authority on the Court of Inquiry. It accordingly quashed the GCM proceedings though at the

trial the accused had pleaded 'Guilty' to the Charges and had not raised Plea-in-Bar of trial. The appeal filed against the AFT order ibid

was dismissed by the Apex Court, as the Hon'ble Supreme Court declined to grant leave to Appeal primarily on the ground of limitation and

also on merits.

Counsel for the applicant has also submitted that the respondents were blatantly unfair and discriminatory towards the applicants, in that, similarly

placed officers, who had imported weapons during their posting at IMTRAT Bhutan and had brought these to India and sold them to private parties in

contravention to provisions of the Customs 86 Baggage Act and the Arms Act 1959, had been let off lightly with just nonrecordable censures, as a

consequence of only administrative action being ordered against them. Counsel has argued that this happened because certain senor officers had a

stake in ensuring that this offence was viewed lightly.

Counsel for Applicants Nos. 1 and 2 have also contended that, as a number of GCMs were conducted at different locations for the same offence,

there are variations in the scale of punishment. Consequently, Applicants Nos. 1 and 2 have been punished with 'Severe Reprimand 8r, One year loss

of seniority' whereas most of the other similarly placed officers were given punishments which did not involve loss of seniority. Further, some of the

officers have been awarded only 'Reprimand'. Thus, there is enough reason for the Court to consider reduction of the sentence appropriately.

Learned counsels for the respondents, on the other hand, have controverted the arguments made on behalf of the applicants. Counsels have

contended that the G CM commenced before expiry of the period of limitation of three years as set out in Army Act 122, in that, the period of

limitation commenced only on 25.09.2008, the date the competent authority, viz. GOC-in-C SW Command, gave his directions on the Court of Inquiry

after determining that an offence had been made out in respect of the officers who had reportedly sold NSP weapons without due permissions, in

contravention to instructions contained in Special Army Order 4/S/2006 and Section 25(3) of the Arms Act 1959. Respondents have contended that

date of knowledge of the offence, as mentioned in Army Act 122 implies 'actionable knowledge'. Reference has been made to Army Headquarters

Circular dated 12.04.2001 which states that the knowledge available to the competent authority about culpability for a possible offence cannot be

vague, sketchy and lacking in certainty. The knowledge necessary before limitation begins to run must amount to 'actionable information', wherein the

offence and the identity of the offender must be known with reasonable precision and certainty to warrant action, which would be possible only after

finalisation of the Court of Inquiry, without any doubts or legal infirmities, which are then put before the competent authority for his decision on the

matter. Para 6 of the said circular is reproduced as hereunder:

What constitutes knowledge. It unambiguously emerges from the foregoing discussion that the requisite knowledge contemplated in Sec

122 ibid relates to commission of the offence and identity of the offender and that the time limitation shall not begin to run until knowledge

with regard to both aspects is acquired by either the person aggrieved or the authority competent to initiate action. The question, however,

arises what constitutes such knowledge, i.e., the extent of such knowledge and degree of certainty thereof before limitation can be deemed to

have commenced. Pertinently, since the knowledge contemplated in law has a reference merely to 'initiation of action, its extent or degree of

certainty cannot be equated to proof beyond doubt or even knowledge of all the facts and ingredients necessary to prima facie establish

commission of the offence by the accused. At the same time, it cannot be vague, sketchy and lacking in certainty, tantamounting to mere

allegation unsupported in certain material aspects. The knowledge, necessary before limitationbeginsto run must amount to 'actionable

information' i.e., it should relate to the offence and the identity of the offender with reasonable precision and certainty to warrant action.

Respondents have also argued that this was a complex case involving investigation through C of I involving 71 different officers at a number of

locations and subsequent follow-up action in the form of S of E and GCM in different locations.

Hence, actionable knowledge had to be clearly ascertained in a complex set of cases and situations.

Reliance is placed on the judgment dated 08.04.2010 in the matter of Union of India & Ors. Vs. V.N. Singh [Civil Appeal No. 32 of 2003] [(2010)

5 SCC 579]. judgment are relevant and are Paras 36 and 37 of the said reproduced as hereunder :

“36. On the facts and in the circumstances of the case this Court finds that the period of limitation for the purpose of trial of the

respondent commenced on 3-12-1994 when the GOC-in-C, Western Command being the competent authority directed disciplinary action

against the respondent in terms of Section 122(1)(b) of the Army Act. The period of three years from the direction dated 3-12-1994 would

expire on 2-12-1997, whereas GCM commenced the trial against the respondent on 17-12-1996 which was well within the period of

limitation of three years. Therefore the impugned judgment is legally unsustainable and will have to be set aside.

For the foregoing reasons it is held that GCM commenced trial against the respondent within the period of limitation as prescribed by Section

122(1)(b) of the Army Act. The impugned judgment is set aside. The appeal accordingly stands allowed. There shall be no orders as to costs."" Hence,

in the instant cases, as GOC-in-C SW Command, being the competent authority, directed disciplinary action against the applicants on 25.09.2008, the

GCM, which commenced on 12.07.2011, 20.07.2011 and 24.08.2011, started within the three year period specified under Army Act Section 122(1),

was legally sustainable.

With regard to arguments fielded by the applicants during the GCM that the NSP weapons allotted to them were in unserviceable condition, the

respondents have contended that, in such a case, the weapons should have been returned to COD Jabalpur. The orders on the subject unambiguously

mandate that an NSP weapon cannot be sold without prior approval of the Standing Allotment Committee and, under no circumstances, can a NSP

weapon be sold to an arms dealer. The acts of selling the NSP weapon without due permission, especially to an arms dealer, was a clear violation of

SAO 4/S/2006 for which the applicants were found guilty by GCM.

With regard to the contention of the applicants that they have been awarded harsher punishments as compared to most others, respondents have

contended that the GCM took into consideration the past conduct and record of service of the applicants as also the peculiar facts and circumstances

of each case. Sentences are not awarded in a mechanical manner based on some fixed formula. Therefore, the applicants cannot claim parity with

other persons tried by other GCMs. The sentences awarded to all three applicants were just and legal, keeping the evidence and peculiarities of facts

in view.

On the issue that similarly placed officers of IMTRAT Bhutan got away lightly, the respondents have submitted that the facts of the two cases

were clearly distinguishable. The IMTRAT officers had sold their private weapons, purchased during their tenure in Bhutan, in violation of the

Customs 85 Baggage Act as also the Arms Act and hence, administrative action against the defaulters were considered adequate. In that case, there

was no violation of Govt. or Army policy or Army Order whereas, in case of the applicants, the NSP weapons were allotted by the Army and there

was clear violation of Special Army Order and the Arms Act when the weapons were sold to arms dealers or others without due permission. All

officers and JCOs who sold their weapons contrary to provisions of the relevant SAO and the Arms Act, 1959 were brought to tr ial before GCMs.

There was no discrimination as all similarly placed offenders were dealt with in a similar manner. The respondents have thus contended that the case

of the applicants is devoid of merit and deserves to be dismissed.

Consideration:

Having given careful consideration to the arguments made before us, we find that the primary issue before us is whether (A) the proceedings of

the GCMs, whereby the applicants were found Guilty and sentenced to punishment of severe reprimand and one year loss of seniority (second

punishment applicable only to Applicants Nos. 1 and 2) for unauthorized sale of NSP weapons to private arms dealers, need to be set aside

consequent to the allegation that the GCMs were time-barred, contrary to Section 122 of the Army Act, 1950 and (B) Whether the sentence, if legal,

was disproportionately severe, relative to the offence, keeping in view the circumstances in which it was committed.

We find that, admittedly, the applicants had sold the NSP weapons, which were allotted to them by the respondents, in an unauthorized manner, in

that, they did not take clearance from the competent authority to make the sale in the interest of pecuniary gain. Special Army Order SAO

7/S/2003/DV: Discipline - Arms and Ammunition lays down the policy with regard to disposal/resale of NSP weapons. Para 29 of the said SAO is

reproduced as hereunder:

Weapons purchased ex-Ordnance will be resold with the prior approval of standing allotment committee as per SAO I/S/96 and at

prevailing rates which may be obtained from Dir OS (Armt), OS-15, MGO Branch, only to the entitled personnel as mentioned below â€

(a) Serving Service Officer All weapons

(b) Civilian Gazetted Officers- Carbine .30 and Pistol Rev. 32 and 12 Bore DBBL/SBBL

 (c) Retired Service Officers - Carbine .30, Pistol Rev. 32 and Shot Gun 12 Bore DBBL/SBBL

(d) JCOs - Carbine .30 and Shot Gun 12 Bore SBBL

Under no circumstances will these weapons be sold to Arms Dealers. Disciplinary action will be taken for infringement of this rule, besides

confiscation of the weapon. Those who wish to return the weapon to the Ordnance may also do so. Intimation of the sale will be notified to Army

HQ (OS 15), the appropriate civil authorities and COD Jabalpur.

The primary argument on behalf of the applicants is with regard to expiry of the three year limitation period for commencement of trial as

contained in Section 122 of the Army Act, 1950. In this regard, the issue before us is the interpretation of Army Act Section 122 as to what

constitutes 'date of knowledge' of the offence, on which date the three year period is slated to commence. The respondents have averred that, in

keeping with the interpretation as directed by the Hon'ble Supreme Court in the V.N. Singh's case (supra), the date of commencement would be

25.09.2008, the date the GOC-in-C SW Command, the competent authority, gave his directions after consideration of the findings and opinion of the C

of I, which is the 'date of actionable knowledge'. On the other hand, learned counsel for the applicant has relied upon the view of the Honble Supreme

Court in the J.S. Sekhon's case (supra) wherein it was observed that the 'date of knowledge' would be the date of C of I proceedings were submitted

to the competent authority.

Hence, having regard to these two v.rying interpretations of Army Act Section 122, which have crucial bearing on the validity of the GCM

proceedings, we have decided to examine the peculiar circumstances of the instant case to opine on the matter. Respondents have referred to the

complications related to the case, viz, the large number of personnel (71) against whom the allegations of illegal sale of NSP weapons were made in

the Honble Supreme Court through PIL and the complexities involved in conducting C of I and S of E as well as convening of GCM of such a large

number of personnel in a joint/ coordinated manner. There being absolutely no possibility of errors in investigating/inquiry with regard to determination

of nature of offence and culpability of each offender, the legal process had to be flawless and thorough resulting in the C of I being returned with

directions to comply with Army Rule 180 and include the testimony/examination of witnesses from the Office of District Collector, Sri Ganganagar,

Superintendent of Police, Sri Ganganagar and other witnesses, including custom officials. Thus, the reassembly of C of I as per Army Rule 179 (5)

was necessitated on 17.07.2008 after which the proceedings were resubmitted to HQ SW Command on 21.07.2008. Hence, it was contended that

commencement of the GCM on 12.07.2011 (Applicant No. 1), 20.07.2011 (Applicant No. 3) and 24.08.2011 (Applicant No. 2) were well within the

three year period which commenced on 25.09.2008, the day when GOC-in-C SW Command gave his directions for taking disciplinary action (by

GCM) against 46 serving officers including the applicants. Thus, we are satisfied that in light of the complexities of the case and the need for

responding to the Honble Supreme Court on the matter, the respondents were justified in ensuring 'actionable knowledge' in terms of Army Act

Section 122, as interpreted in the V.N. Singh's case (supra).

The counsel for the applicants has referred to the severe punishments awarded in this case of sale of NSP weapons to private arms dealers in the

context that some other officers earlier posted at IMTRAT Bhutan who had sold their personal weapons in contravention to Para 30 of SAO

7/S/2003/DV and the Customs Act had been let off lightly. We agree with the contention of the respondents that the offences in the two sets of cases

were not entirely similar. Sale of weapons by officers of IMTRAT did not contravene any provision of the Arms Act, 1959. The sale was in violation

of the provisions of Baggage Rules made under the Customs Act, 1962. Therefore, the relevant information was made available to the Department of

Revenue, Ministry of Finance, for confiscation of their weapon by cancelling their sales and for taking appropriate action against them and thus the

action of the respondents to deal with the said matter administratively and award punishment 'reprimand' was appropriate to the circumstances of the

case.

Further, as regards holding all the applicants guilty of the offences alleged against them, the same stands amply proved from their own admission

as Applicant No. 1 admitted having applied for purchase of NSF Weapon Pistol 7.62 mm on 02.09.1997 which was allotted to him on 19.09.1997 by

the Standing Allotment Committee (SAC) and within less than four months, he sold the same to the Arms dealer on 14.01.2007 without obtaining prior

approval of SAC nor did he give prior information to the concerned District Magistrate or Police Station.

Applicant No. 2 applied for allotment of weapon in 2002 and was allotted a Rifle .30 BA Springfield Rifle. Also this applicant tried to take a plea

that he had not sold the weapon to his fellow Army Officer in April/May 2006 but simply gave it to him on his request but the Court Martial

extensively dealt with inconsistent pleas taken during the proceedings. Admittedly, a transfer deed was executed by him in favour of his fellow Army

Officer. Therefore, rightly it was held that this applicant also sold the weapon to fellow Army Officer. Admittedly, before doing so, he also neither

obtained prior approval of SAC nor intimated the concerned District Magistrate or Police Station.

It is the case of the applicants themselves that allotment of NSP weapons was governed by a Special Army Order issued by the Respondents in

1996 which contained various clauses including the clause of seeking prior permission of the Standing Allotment Committee for selling such weapon to

any person as well as the prohibition of selling such weapon to an arms dealer. It also contained a provision of necessary administration or disciplinary

action in violation of such provisions of the SAO 1/S/1996. This SAO was superseded by another Special Army Order 4/S/2006 and most significant

amendments were made in this Army Order that the sale of weapons will be governed by the provisions of the Arms Act, 1959. The clause of seeking

prior permission of Standing Allotment Committee on allotment of weapons remained applicable. Prior information to the concerned District

Magistrate or the Police Station was also required before disposal of the weapon.

In view of these orders, since it is the admitted case of the applicants that they had sold the weapons allotted to them by SAC without obtaining prior

permission of SAC and prior information to the concerned District Magistrate or the Police Station, the applicants were rightly convicted of the

offences alleged against them.

The only question left for consideration is proportionality of the sentence. It is the submission of the learned counsel for the applicants that

differential treatment has been given to same category of officers while awarding punishment which is otherwise quite improportionate to the offences

alleged against them. He has given list of officers of Bikaner, Hisar, Kanpur and Allahabad, which reflects that in the case of majority of officers

'severe reprimand/fine or one year loss of seniority' was awarded. Keeping the same in view, while maintaining the punishment of 'Severe

Reprimand', awarded to Applicant No. 3, sentence of 'Severe reprimand and forfeiture of one year service for promotion' awarded to Applicants Nos.

1 and 2 is modified to 'Severe Reprimand' only.

With this modification, while O.A. No. 148 of 2012 and O.A. No. 180 of 2012 are partially allowed, O.A. No. 284 of 2012 is dismissed.

Pending application(s), if any, also stands disposed of. There is no order as to costs.

Pronounced in open court on this 23th day of June, 2020.