Navin Chandra v. Union of India

* IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on: 11.09.2015 + W.P.(C) 8709/2015 and CM No. 19135/2015 and CMNo.19136/2015 NAVIN CHANDRA Petitioner Through: Mr Ravindra S. Garia and Mr Vikram S. Mawari, Advs. versus UNION OF INDIA ResDondent 1, The petitioner Coili^under Article 226 of the Constituti;on\|6^settingaside his pQifvicliBn^underSection 16(d) ofBSFAct, 1968 and tm^s'^t^n6Bjoif'SismMI(jlfrdln-<sen''ice.

¶2The brief facts of the case^Fe-that-tKe''petitionerwas on duty from 0200 hours to 0500 hours on 20.07.2012and on checkingby duty NCO, he was found missing at about 0340 hours from his duty post and when a searchwas made for him, he was found sleepingin 'F' Coy stores shed at about 0540 hours along with his weapon and ammunition.The proceeding of recording of evidence was held and during which statements of six witnesseswere recorded.All the six witnesseswere duly cross-examinedby the petitioner. After completion of the recording of evidence of the W.p.(C) No. 8709/2015 p^ge / witnesses of the prosecution, the statement of the petitioner was recorded, after issuing caution under Rule 48(3) of BSF Rules Act, 1969. Thereafter, on the basis of the record of evidence, the following chargesheet under Section 16(d) was issued:- "While on Sentry Duty at Unit Store-Magazine Guard, at 0340 HRS on 20.07.2012 during checking by duty NCO you were found absent from guard duty"

3., A Summary Security Force Court (SSFC) was constituted, which conducted a trial. A friend of the acc.us.edShri V.D. Gangwar attended the SSFC trial along with the?]pef|tioner^.fheC^p5aMantShri Nanak Chanc^ who conductedthe ,trial, als5"acted^asi-anint'erpr^fer^'^I^hepetition«rhad pleadednot guil1^^)f|flae' ex^in^r"' —- All the witnessed'were'dulycro^$®MfneS^thepetiti^er.%ndefence,he statement and closed his defence^ y'B^sedkiln i was dismissedftpm servjgg. petitionswhich were also dismissed. %

¶4The petitioner<chMlenge^s"-Ms_..dismissal on>^W^^^ that the convictionis based on materMfe\5^ni^ to prove his guiltan^ thereforethere is a grave erroroffact and law. It is also submittedt)^at the entire proceedings were mala fide and tainted with bias and the charge itself was false. It is submitted that the petitioner was on Store Guard Duty and not on Unit Store-Magazine Guard duty and that the prosecution witness H.C. Anil Kumar has supported the petitioner when he deposed that the petitioner was on "Store Guard Duty". It is further stated that the proceedings were conducted with undue haste and the petitioner was not given proper time and opportunity to prepare his defence and to analyze the six witnesses. examinedone Witness Constable^lB&j^MSte,and, thereafter^!he made his SSFC trial,Jhe petitioner W.P.(C) No. 8709/2015 Page 2 evidenceor the documentsrelieduponagainsthim by prosecution.Denialof proper legal assistanceas envisagedunder Rule 157 of BSF Rules, is also urged as an infirmity.The friend of the accused, Shri V.D. Gangwar, was appointedon the day whenthe trial commencedand no document,evidence or recordsoughtto be used againstthe petitioner,were suppliedto him as a result of which he could not render any assistanceto the petitioner.It is furthercontendedthat the Commandanthimselfhad acted as an interpreter and that the entireproceedingswere in Englishwhichthe petitionerdid not understand and, therefor§,p4edid, |n9t-:get^,proper...opportunity to defend himself.It is conte^ed^hat,^c^arges,^reamendedj^in^ ofSection 57 and 58, i.e.,^9^^uan^^fe|^^hepeSSon^.Jtis submitted thatin themem^bi^arge,itw^|||(||||iiewas on%^}^dutyat Unit MagazineGumdat 0340hrs".^ ^llecordofevidence,the charge-sheetgivento Wm statedthat "he dutyatunitstore-magazine suard. at 0340Hrs" If

¶5It is for not being found on duty was a major amendmentin charge andt;#n€^hWam5^^ of the process under Section 57 and 58 ofthe 'BSFTRules,the trial stands vitiated. It is further contendedthat the disciplinaryproceedingswas based on areport dated 20.07.2012by the AssistantCommandantAkhileshBisht, where he reportedthat the petitionerwas on rear guard duty in the magazine(Gola BaroodBhandar)and was absentfrom the placeofhis responsibility.It was arguedthatPW-1, duringrecordofevidenceclearlystatedthathe had found the magazinefront and rear guard in position.It is submittedthat it was for this reason,that subsequentlya differentcharge-sheetwas issuedto him. It W.P.(C)No. 8709/2015 Page 3 is further submittedthat AppellateAuthorityignored the evidence of the GuardCommanderof StoreGuardnearMagazinewho clearlystatedthathe had checked the guards at 0030 hours and found them alert. It is further pointed out that when the petitionerwas allegedlysleeping,the time was about 5.30 hours and by that time his duty was over. It is furthercontended that his explanationof being absent from, duty on the ground that he had gone to drinkwaterand whilereturningslippedand fallenunconscious,was ignoredby the AppellateAuthority.Thus, his defence was not considered eitherby the SSFC or by .the-^AppelkJe'pAutK® is thus submittedthat® the findings into his,^guilt||re^4n^)^^ the law at^ the evidenceson reco^pf^Kas

¶6It is argueloifi&halfofS^^p^^thatthe^jonerhas cooked up new groun4 of challengea®I® he had never disput^, during the it • -vt is: 5ft5 ('I H i'i , recordingofevidenceor before he was on sentryjduty between

2.00to 5.00ho% on20.07.20^^^^^Store.It is sul|hittedthatthe petitioner himseff,^ 'proceedingsof ^ assigned duty of magazine-store <1hrs. I took over^ chargeas sentryat 0200 hrs. on To.of'fiffl2\i\dalso in SSFCtiialwhenhe has stated in his statementthat "I was detailedfor Guard Duty at Store MagazineGuardfrom 200200 hrs to 200500 hrs." It is further contended thateventhe defencewitness—whohad replacedthe petitionerwhenhe was found absenton the directionsofthe GuardCommandantHC J.D. Mishra— clearly stated that "On 20'^ July, 2012 I was detailedas guardfor store magazineguard and my duty was to be startedat 200500 hrs, at about 200440 hrs I was directedby the Guard CommanderHC J.D. Mishra, to W.P.(C)No. 8709/2015 ^ r immediatelygo to Morchaat Store MagazineGuardfor duty as CT Navin Chandrea is absent from Store Magazine Guard. When I came to Store Magazine Guard I didn't find CT Navin Chandra in his Morcha." It is furtherarguedthat the prosecutionexaminedsix witnessesin the recording of evidence proceedingsand the petitionerdid not suggest in the cross-examinationto any of the witnesses that he was not on Magazine Store Guardduty and thathe was on 'StoreGuardDuty'.Evenno such suggestion was made to any prosecutionwitness^uringSSFC. It is furtherarguedthat petitioneris blowinghot and-^ofdatpthe-rsame?time..Whilehe has contended -. . .thathe was nevermis^ng@lrhis^;^and1;h§"ch^^Aathe was missing from duty, is a ^disn^^^^wm^^^^ervice^In-liis,petition under Section117 BSlA^1968anS^^S^ji^yappealfed, he had taken up the plea that' he had gone td^'Mrinfej-'.^aierand slipped, fell' and became 'I k101)I'S ' 1' unconsciousdue to weakness caus'edpy [dysenteryand,his iplea was not P fV " • ' ' i: taken into consJ|erationby the|^i^^^^^iAuthority.In this way, he has also admittedthafehe duty post to drink water. It is\^fmitte^^thatthe ,,evi!fenBlS-feeokedduring the proceedings of recordin SSFC clearly establishes that the petitionerwasWdutyon 20.7.2012from 2.00 hours to

5.00 hours and was found missingduringpatrollingat about 3.40 hours. All the witnesseswere duly cross-examinedby the petitioner.He also admitsthe assistance of Shri V.D. Gangwar and that the entire proceedings were explainedto him—moreover—henever explained inability to understand the proceedingsor inabilityto provehis defence,etc. duringSSFC.

¶7We have heardthe learnedcounselfor the parties.Thereis no dispute that the petitionerwas on duty from 2.00 hours to 5.00 hours on 20.07.2012. W.P.(C)No:8709/2015 ^ While the contentionof the petitioneris that he was on Store Guard Duty and the store contains the bedding and other articles of the personnel on leave and some article of persons on duty and does not have any arms and ammunitionsand military equipment,the contentionof the respondentis that he was on sentry duty at Unit StoreMagazineGuard. It is apparentthat it is for the first time beforethis Courtthat the petitionerhas takenthe plea that he was on Store Guard Duty at the store which containedbeddingand other articles. Neither during proceedings of record of evidence nor in SSFC did he raise this plea. No^sug'gestion-was^ of the witnessesthdi^ he was not on duty ats'UniCStofeMagazineGiSiLrd^^^^^ in his statementrecorded?%rMg'recoKdi'|^f eyidenceand^^ade^beforeSSFC,he had not taken thfe >|lea that hd^^a|^1|ot'on^-''Hutyat Uiiit^SloreMagazine Guard,but at a.storecontainingt^Bel^dingv'etc. ofpersonnelon leaveor on S 1 sfp I It . duty. He rather ^admittedin his defeiiciestatement that "he waskssigned duty I • I nm A/fnrrn'TTv^/D rZn/yi'*/^ -ft/^rwM n^A /-.Ur-»o was detailedfor GiMt^^''$fk^'^P=.^tpreMagazineQitardfiom200200hrs to 200500hrs". His defenc^^yitnlss"hS§-als#fM facts. In viewoi^ these evidences, the findings of the Disciplinary Authority that the petitioner was on sentry duty at Store Magazine Guard cannot be found fault with.

¶8As per Rule 157 of BSF Act, the petitioner was provided a friend to help him during SSFC trial and Mr V.D. Gangwar had participated in trial.

¶9At no stage, Mr Gangwar or the petitioner had requested the Court for supply of any deficient documents or proceedings to them. They also did not express any lack of understanding of the proceedings conducted by the SSFC. If the petitioner or his friend, were unable to understand the W.P.(C) No. 8709/2015 . Page 6 proceedings or they needed any document or further assistance of any sort, ought to have expressed their desire to the Court and in the absence of any such objection being raised during the trial, the plea raised before us lacks genuineness. Besides that, the trial before the SSFC clearly shows that the petitioner had fully understood the proceedings, including the statements of the witnesses and that is why he could cross-examine them. The way the questions were being put to the witnesses in their cross-examination by the petitioner shows that the petitioner had fully understood the testimonies of the witnesses and could .formulate,-his" questions, intelligently. There is nothing,on the record^tofslfew""thathe wa's"^unabre%tounderstand the proceedmgs before S-SfC. HeShastralspjIexamined'^'hisdefence witness, / a:/ "4. ..' ••A therefore, it caniibt xi. i ^bt-jp'said fult'opp'qrtunityby the 4-u^ u;™—if"+T U Court.Merelyl|ecausetheCour^'{^^^|^p3onhimselfther^ponsibilities . entire proceeding unless the /petitioner has of an interprete petitionershow^\^that failed to point that he either had been deprivedo&^Ko^E''^pp|tunitie^^^ or was unable ^to prepare his defence or suffered with inability to cross-examine the witn~ess~i'n a'proper manner. The proceedings, therefore, do not suffer with any infirmity.

¶10The contention of the petitioner is that the findings of guilt remain unsupported, in view of deposition of the Guard Commander who had stated that he found the Guards on checking, alert at 0030 hours, and thus proves that the petitioner was on duty and not missing from duty, is devoid of any merit for the reason that the charge against him was that he was found missing by PW-1 while patrolling at about 3.40 hours, while the statement W.P.(C) No:8709/20I5 Page 7 h:- of the Guard Commanderrelatesto the time 0030 hours, when he was not put on duty, as his duty hours started from 2.00 hours. Not only this, the petitionerexplainedthat while on duty he had gone to drink water when he slipped and fell unconscious due to his weak condition, owing to the dysenterywith whichhe was,suffering.So the fact thathe was missingfrom his duty is admitted.The petitioner'splea is also that his absencefrom duty was not deliberate or intentional but he actually fell somewhere while drinking water as he was sufferingfrom vomiting and dysenteryof such severe nature which so \^eak6nedT,^im^ttirende>::movementdifficult.Thti . .vs A ^ contentionofthe petitioner^Sicdntrw^rtedby the Ee|pohdenL.Ifit isgrue,it was reasonablethaf%§petition^MI Room of r)fKf prescriptionto substantiatehis plea,'but-ri^|suchdocumentwaJ,producedby the petitionerditherduringrecordi|0|/ej||(llnceproceedingsc before us. Moreover, his pleaJ^ri^r^paliein the light oi' which emerge froto categorically stated that petitioner.w|^f6trad^sjeeping^i#^fc 'F' Coy. ASI MithleshKumar, PW-4,^ha$^a@5^^t€d^^^^lfenr-ffewas looking for tha petitioner,he saw HC J.D. Mishfa'lfringmg'outConstableNaveen Cliandra from the "Coy Store Room" Even before SSFC, HC Anil Kumar categoricallystatedthatat about5.30 hours,the accusedwas found sleeping inthe storeof 'F' Coy. PW-3 HC J.D. Mishrahas also clearlystandthat'Ve found Ct. Naven Chandra sleepingin coy store"".PW-4 has also statedthat ''bythe timeI came to thefrontandI saw thatHCJ.D. Mishrawas bringing out Ct. Navin Chandra from the Coy store room."" In their cross-examination,no suggestionwas givenby the petitionerthatthey did not find r in SSFC or f certain facts W.p.(C) No. 8709/2015 Page8 him sleepingin the Coy storeroom, butthathe was found unconsciousnear the water point near MI Room. If we believe the explanation of the petitioner that he due to the weakness had fallen down and become unconscious,when he had gone to drinkwaternear the waterpointnear MI Room, the question he reached to the Coy store room where he was discoveredsleeping,is a mystery.

¶11The petitioner'splea is false and unsubstantiatedby any evidence (oral/documentaryon record)while on the otherhand, the testimoniesofthe prosecutionwitnessesthathe was found-sleeping the Store Room during his duty hours stands^cont^oYatedIn the (3S.thevtestimoniesof the prosecutionwitnesse||^^Jheple^||^|!M^^^3hepetiffGxner''does not inspire confidence. /•' mmmmk

¶12From th| above discus^^^M)ws that the finding of the Sj |^~f| I 11 (| petitioner'sgui| is based on the efd^Mon record and that there are no mitigatingcircumstanceson rec##^f2^^bf the petitioner.'Inthe lightof the above, there% 0^]^ impugned order.

¶13The writpetition,with the pending applicationsis accordinglydismissedrNo'drderas to costs. SEPTEMBER 11, 2015/bg DEEPA SHARMA (JUDGE) LvvjLi^|&^ S. RAVINDRA BHAT (JUDGE) W. p. (C) No. 8709/2015