Calcutta High Court (Appellete Side)
Shri R.L. Kamath vs Union Of India & Ors on 6 February, 2026
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Ananya Bandyopadhyay
W.P.A. 13868 of 2009
Shri R.L. Kamath
-Vs-
Union of India & Ors.
For the Petitioner : Mr. Kallol Basu
Mr. Nilanjan Pal
For the Union of India : Mr. Anirban Mitra
Heard on : 14.01.2026
Judgment on : 06.02.2026
Ananya Bandyopadhyay, J.:-
1. The petitioner enrolled as a Constable in the Border Security Force on 13 th
December, 1990 bearing Constable No.90401386, posted at different
formations including Tripura under 123 Battalion under the Frontier
Headquarters, BSF, North Bengal. In June 2007, he was adjusted with 127
Battalion, BSF and Operational Sector described on record as highly
sensitive from the stand-point of cross-border smuggling activities.
2. While so deployed, a written complaint was received from the Company
Commander, Shri Pratap Singh, Assistant Commandant, alleging the
petitioner had acted in connivance with the smugglers operating near the
international border. It was alleged that on 17 th October, 2007 while posted
at BOP Gitaldah of 127 Battalion near Kashim Ghat on the banks of the
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Dharla River, the petitioner along with Head Constable/ED Mohammad
Rashid (co-accused) accepted illegal gratification of Rs.10,000/- and
provided safe passage to smugglers for transporting 350 bottles of Phensedyl
contained in seven packets from India to Bangladesh.
3. In view of the seriousness of the allegations, disciplinary action was initiated
under the provisions of the Border Security Force Act, 1968 and the Rules
framed there under. The petitioner was heard by his Commandant under
Rule 45 of the BSF Rules, which contemplated hearing of the charge against
an enrolled person on an offence report. Two charges under Section 40 of the
BSF Act, 1968 relating to acts, prejudicial to good order and discipline of the
force were framed against him. The petitioner pleaded not guilty to both
charges.
4. Thereafter, a record of evidence was ordered to be prepared. The ROE was
recorded in the presence and within the hearing of the petitioner. At this
stage, he was afforded opportunity to cross-examine prosecution witnesses,
to file a statement in his defence and to produce defence witnesses. The
petitioner cross-examined the prosecution businesses but did not produce
any defence witnesses. His verbal statement in defence was recorded in
verbatim by the Recording Officer.
5. Upon consideration of the record of evidence, the Unit Commandant found a
prima facie case against the petitioner and in exercise of powers under Rule
51 of the BSF Rules, directed the matter be tried by Summary Security Force
Court (SSFC). The SSFC trial was conducted on 12 th, 14th, 15th and 18th of
July, 2008. During the trial, seven prosecution witnesses and five court
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witnesses were examined. The petitioner again pleaded not guilty to the
charges. He was afforded opportunity to defend himself, but did not induce
any defence witnesses.
6. Upon appraisal of the oral and documentary evidence, the SSFC returned a
finding of guilt against the petitioner and his co-accused on both charges.
The sentence imposed was dismissal from service. The order of dismissal
was issued vide order No.ESTT./127 BN/SSFC/SKS/08/11692-705 dated
18.07.2008.
7. The proceedings of the SSFC were thereafter counter-signed by the Deputy
Inspector General, BSF, Cooch Behar Sector on 27.08.2008. Aggrieved by
the finding and sentence, the petitioner preferred a statutory petition before
the Director General, BSF, challenging both the findings of guilt and the
punishment imposed. The said petition was examined at the directorate level
and after consideration of the materials on record was rejected as devoid of
merit. The rejection was communicated vide letter No.06/87/2008/SP/CLO
(D&L)/2911-14 dated 26.05.2009.
8. The petitioner approached this Court seeking a writ in the nature of
mandamus for rescission and setting aside the dismissal order dated
18.07.2008 and the Appellate rejection order dated 26.05.2009 and for
reinstatement in service with all consequential financial benefits.
9. The matter, thus, arises out of disciplinary proceedings conducted under the
special statutory framework governing the Border Security Force,
culminating in the petitioner's dismissal for service, following conviction by
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Summary Security Force Court and rejection of statutory representation by
the competent authority.
10. The Learned Advocate representing the petitioner commenced his
submissions by drawing attention to the petitioner and his otherwise
unblemished service career. The petitioner was enrolled in the Border
Security Force on 13th December, 1990 as a Constable and served under
various formations including Tripura under 123 Battalion, Frontier
Headquarters, BSF North Bengal. It was urged that for nearly 17 years prior
to the alleged incident, no adverse entry or disciplinary blemish had been
recorded against him.
11. It was submitted that in June 2007, the petitioner was adjusted with 127
Battalion BSF Sector described as sensitive from the standpoint of smuggling
activities. The allegation against him arose from a written complaint which
was entrenched with accusations, which were grave and stigmatic striking at
the core of discipline within a border guarding force; yet, the evidentiary
foundation of such allegation was tenuous. It was argued no recovery of
bribe money was made from the petitioner nor was any contraband seized
from his possession. The case against him, it was contended, rested
substantially on testimonial assertions without independent corroboration.
12. It was further submitted the hearing under Rule 45 of the BSF Rules was
conducted under a record of evidence. The petitioner was not afforded a fair
and effective opportunity to defend himself while he cross-examined
prosecution witnesses during the ROE and at the trial, he was placed in
circumstances where he could not meaningfully secure or produce defence
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witnesses. His verbal statement in defence, though recorded, was not
adequately considered in the appreciation of evidence.
13. The Learned Advocate representing the petitioner emphasised during the
Summary Security Force Court trial conducted on 12 th, 14th, 15th and 18th of
July, 2008 seven prosecution witnesses and five court witnesses were
examined however, material contradictions and inconsistencies in the
testimonies were not addressed. The finding of guilt, it was argued, did not
disclose a reasoned evaluation of the evidence but rather a summary-cum-
affirmation of the prosecution narrative.
14. It was contended the charge under Section 40 of the BSF Act, 1968
prejudicial to good order and discipline-required, clear and cogent proof of
culpable conduct. In the present case, the Learned Counsel submitted the
prosecution failed to establish conscious acceptance of illegal gratification or
intentional facilitation of smuggling. The inference of connivance was,
according to the petitioner, drawn without demonstrable proof.
15. The Learned Counsel submitted that the prosecution version suffered from
inherent improbability. It was contended the bribe amount of Rs.10,000/-
was only disproportionate and commercially incongruous when juxtaposed
with the quantity and estimated market value of 350 bottles of Phensedyl. It
was further argued if indeed, such a quantity of contraband was being
transported across an international border, the payment of Rs.10,000/- to
secure safe passage defy logic and common experience. This internal
inconsistency, it was urged, rendered the allegation suspicious requiring
judicial scrutiny, which according to the petitioner was not undertaken. It
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was submitted the prosecution narrative rested substantially upon the
version of persons apprehended in connection with the alleged smuggling of
350 bottles of Phensedyl. According to the Learned Advocate representing
the petitioner, these individuals described as smugglers were themselves
offenders apprehended in the course of anti-smuggling operations and
therefore deeply interested witnesses whose testimony required cautious and
independent corroboration.
16. It was further contended the conviction of the petitioner was premised upon
statements of such apprehended persons, allegedly implicating him in
having accepted Rs.10,000/- for permitting safe passage. It was urged that
no independent, civilian witness, no contemporaneous, documentary record,
and no recovery of money from the petitioner, supported the allegation. The
case therefore was said to hinge on testimonial assertions of persons who
stood exposed to penal consequences and whose statements were, in that
context, inherently suspect. It was further submitted that the smugglers
were not neutral witnesses, but individuals facing prosecution and there was
every possibility of their seeking to mitigate their own culpability by
attributing complicity to uniform personnel. It was argued that their
statements were not corroborated by objective material evidence neither call
records, no recovery of tainted money, nor civilians, documentations, nor
any prior intelligence linking the petitioner to smuggling activities.
17. The Learned Advocate further submitted the punishment of dismissal from
service was harsh, disproportionate and destructive of a career spanning
nearly two decades. The sentence it was urged did not reflect consideration
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of mitigating circumstances, including length of service, absence of prior
misconduct and lack of direct recovery linking the petitioner to the alleged
bribe.
18. It was also contended that the statutory petition preferred before the Director
General, BSF was rejected by communication dated 26 th May, 2009 without
independent and reasons scrutiny of the grounds urged. The rejection order,
according to the Learned Counsel did not close application of mind to the
procedural, informative and evidentially deficiencies raised by the petitioner.
19. It was well settled that since documentary evidence carried greater weight
and assurance than oral evidence, it was safer to rest a conclusion on
documentary evidence rather than oral evidence which might sometimes be
treacherously deceptive and difficult of correct evaluation. [1975 (3) SCC 646
Shri Kanwar Lal Gupta Vs. Amar Nath Chawla & Ors., Para 51].
20. The Punishment Order was passed on 18.07.2008 thereby dismissing the
petitioner from service. No finding was recorded in the said Order of
dismissal and the Court of the SSFC Trial had reached the conclusion that
the petitioner was "Guilty" solely on the basis of the statements and/or
depositions of the said smugglers.
21. It was submitted that interference with the decision of departmental
authorities could be permitted, while exercising jurisdiction under Article
226 of the Constitution if such authority had held proceedings in violation of
the principles of natural justice or in violation of statutory regulations
prescribing the mode of such inquiry or if the decision of the authority was
vitiated by considerations extraneous to the evidence and merits of the case,
8
or if the conclusion made by the authority, on the very face of it, was wholly
arbitrary or capricious that no reasonable person could have arrived at such
a conclusion, or grounds very similar to the above. [2000 (1) SCC 416-High
Court of Judicature at Bombay, through its Registrar Vs. Shashikant S. Patil
& Anr., Para 16].
22. It was also submitted that judicial review was not an appeal from a decision
but a review of the manner in which the decision was made. It was meant to
ensure that the individual receives fair treatment and not to ensure that the
conclusion which the authority reached was necessarily correct in the eye of
Court. (2022 (13) SCC 329 (United Bank of India Vs. Biswanath
Bhattacharjee) Para 18).
23. The Learned Advocate representing the petitioner relied on following
judgments:-
i. In Kanwar Lal Gupta v. Amar Nath Chawla & Ors. 1, the Hon'ble
Supreme Court held as follows:-
"51. Now the material before us for estimating the expenditure
which must reasonably have been incurred by the first respondent
in connection with his public meetings is of two kinds; one consists
of documentary evidence in the shape of Exs. PW 15/1-A, PW 15/1-
B and PW 15/1-C and the other consists of oral evidence of
witnesses. Since documentary evidence always carries greater
weight and assurance than oral evidence and it is safer to rest a
conclusion on documentary evidence rather than oral evidence which
may sometimes be treacherously deceptive and difficult of correct
evaluation, we would first examine the documentary evidence and
see how far it helps us to determine the expenditure incurred by the
1
(1975) 3 SCC 646
9
first respondent. The petitioner called in evidence Permod Kumar
(PW 15) and the docu-mentary evidence in the shape of Exs. PW
15/1-A, PW 15/1-B and PW 15/1-C was produced by this witness.
This witness stated in his evidence that he carried on business of
hiring out furnishings and electrical equipment and in course of his
business he “hired out durries, stage, loudspeakers etc. to
Respondent 1 during the election period”. He produced from his Bill
book carbon copies of three bills in respect of furnishings and
electrical equipment hired out by him to the first respondent. One
was Bill No. 263 dated February 20, 1971 for Rs 368, the other was
Bill No. 270 dated February 24, 1971 for Rs 414.50 and the third
was Bill No. 271 dated February 24, 1971 for Rs 360. He said that
one or two days before the date of the first bill, the first respondent
had come to him accompanied by Sat Prakash Makan and one other
person whose name he did not remember and placed an order with
him “with respect to all the three bills” and the furnishings and
electric equipment mentioned in these three bills were supplied by
him according to the order placed by the first respondent and the
payment of the amounts of these three bills was made to him
personally by the first respondent. The copies of these three bills
were marked Exs. PW 15/1-A, PW 15/1-B and PW 15/1-C. The first
respondent challenged the genuineness of these three bills and the
learned Trial Judge felt serious doubt about the authenticity of these
three bills and declined to act upon them. We do not think the
learned Trial Judge was right in casting doubt on the genuineness of
these three bills. There is absolutely no reason why these three bills
should be regarded as unworthy of credibility. Permod Kumar (PW
15) who produced and proved these three bills is a completely
independent witness who has no interest in one side or the other. It
was faintly suggested to him in cross-examination that he was a
member of the Jan Sangh and he worked for Jan Sangh candidates
in the election but this suggestion was stoutly denied by him and in
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fact there is nothing to show that he was in any way interested in
the Jan Sangh. It was then put to him that he was a partner of one
Padamchand Goel who was a member of the Delhi Municipal
Corporation on Jan Sangh ticket. He admitted that there was a
partnership between him and Padamchand Goel entered into in
1966 but that partnership was dissolved within three or four months
after Padamchand Goel became a member of the Delhi Municipal
Corporation. It does not follow merely because an erstwhile partner
of this witness was a member of the Jan Sangh, that he too should
be having interest in the Jan Sangh. It would be too much to
presume that a person without any political affiliation cannot have
any business relationship with a member of a political party, and if
there is any business relationship, it must be presumed that both
belong to the same political party. In fact we find from the carbon
copies of bills Nos. 296 and 297 in the bill book Ex. PW 15/1 that
this witness supplied material on hire even to the Youth Congress
which is avowedly a Congress organisation. There is absolutely no
reason suggested why this witness should have gone to the length
of fabricating false documents for the purpose of supporting the case
of the petitioner. The carbon copies of the bills Exs. PW 15/1-A, PW
15/1-B and PW 15/1-C find place in their proper serial order in a
bound bill book and it is indeed difficult to appreciate how they
could be subsequently introduced in the bill book unless of course
the suggestion be that the whole of the bill book was fabricated for
the purpose of this case. This was, however, not the suggestion
made to the witness in cross-examination. In any event we have
carefully gone through the whole of the bill book which is marked Ex.
PW 15/1 and we do not find any indication in it which might betray
that it is a subsequently got up bill book. Even the bill book for the
immediately preceding period was produced by this witness and it is
marked Ex. PW 15/2. That bill book contains carbon copies of bills
commencing from No. 201 and ending with No. 250 and the bill book
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Ex. PW 15/1 starts from carbon copy of Bill No. 251 and ends with
carbon copy of Bill No. 300. The carbon copies of the bills in both
these bill books appear to be quite natural and regular and no valid
reason has been suggested as to why we should regard them with
suspicion. It is no doubt true that it was elicited in the cross-
examination of this witness that he did not maintain any cash book
or ledger or any other account book but that is not such an unusual
circumstance as to lead us to believe that the carbon copies of the
bills produced by him were not genuine. It is not at all improbable
that the only record which the witness maintained was the bill book,
because by the very nature of his business, the bill book would
contain a complete record of the amount of hire received by him. The
carbon copies of the bills not only show the names of the parties to
whom materials are given on hire but also the dates and the
particulars of the items and the hire charges in respect of the same.
The witness also admitted in cross-examination that he did not
maintain any receipt books but that is also not at all unusual. One
does not need to have a regular receipt book. A receipt can always
be given on the bill submitted to the customer. Then some minor
discrepancies were sought to be shown in the carbon copies of one
or two other bills in the bill book. One was in respect of Bill No. 256.
It was pointed out to the witness that Bills Nos. 254 and 255 bore
the date Feburary 15, 1971, while Bill No. 256 bore the date
February 14, 1971 and he was asked how a later bill could bear an
earlier date than the earlier bills. The witness pointed out that that
was an obvious mistake and there is no doubt that it was so. It is
apparent from the carbon copies of Bills Nos. 254, 255 and 256 that
Bill No. 256 was in continuation of Bills Nos. 254 and 255, forming
part of one single bill in the name of K.K. Bajaj, and since the latter
two bills bore the date February 15, 1971, the former should also
have been dated February 15, 1971, but through some obvious error
the date came to be mentioned as February 14,1971. No point can
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be made of this obvious mistake. Then the attention of the witness
was drawn to some bills in the bill books PW 15/1 and PW 15/2
which were shown as cancelled, and there was some cross-
examination of the witness on this point. But we fail to see how this
circumstance is of any help to the first respondent. It is clear from
the bill bouks Exs. PW 15/1 and PW 15/2 that whenever a bill was
cancelled, the original as well as the carbon copy were marked
“cancelled” or crossed out. Now, there is nothing unusual in
cancelling a bill if it is found that there is some mistake made while
writing it out. This happens sometimes even to the most careful of
men and is not a circumstance which should be regarded in any
manner as suspicious. The important thing is that the originals as
well as the carbon copies of the cancelled bills are retained in the bill
books. That would show the regular manner in which the bill books
are maintained by the witness. There are no blank bills in the bill
books PW 15/1 and PW 15/2 which could have been utilised
subsequently for the purpose of fabricating a bill as of an earlier
date. The suggestion made in the cross-examination of course was
that there were blank bills in the bill book PW 15/1 and these were
utilised for the purpose of making out false bills in the name of the
first respondent. But this suggestion is wholly unwarranted and is
not supported by anything in the bill book PW 15/1 or PW 15/2.
There are only three cancelled bills in the bill book PW 15/1. They
are bills Nos. 253, 269 and 295. It will be seen that none of these
three bills is blank. Each one of them has been made out in the
name of some party or the other and then it has been cancelled. The
same position obtains in regard to bills Nos. 207, 208 and 229 in bill
book PW 15/2. It it apparent in the case of some of these bills that
they were cancelled because of some mistake and then new bills
were made out in the names of the same parties. Compare, for
example, cancelled Bill No. 229 with Bill No. 231, cancelled Bill No.
208 with Bill No. 209 and cancelled Bill No. 253 with Bill No. 254.
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There is no reason why any blank unutilised bills should have been
allowed to remain in the bill books. That is not done by people who
maintain their accounts in the regular course of business. Permod
Kumar (PW 15) could not have anticipated on February 20, 1971
that some blank bills might come in handy at a future point of time
and he should, therefore, leave some blank bills in the bill books. It
is also difficult to believe that there should have been a blank Bill
No. 263 and again three continuous blank bills at Nos. 269, 270 and
271. We find it impossible to accept this theory of fabrication of bills
Exs. PW 15/1-A, PW 15/ 1-B and PW 15/1-C by utilising blank bills
in the bill book Ex. PW 15/1. Moreover, there is inherent evidence in
these bills which indicates their genuineness. The charge for a
complete stage of 12 feet × 10 feet size and 5 feet height
with chuddar, durries and carpets is shown in the bill Ex. PW 15/1-
A as Rs 40 per day. That appears to be quite reasonable compared
to the ridiculously low figures given in the bills of Tandon Tent and
Furniture House and Aggarwal Tent House. Similarly, the charge for
one “loudspeaker service with five units and double mike with
stand-by battery arrangements” is shown in the bill Ex. PW 15/1-A
as Rs 90 and for one loudspeaker service with eight units and
double mike with stand-by battery arrangements is shown in the bill
Ex. PW 15/1-B as Rs 120 while according to the bills of Aggarwal
Tent House and the receipt of Saini Electric Works, it would be only
about Rs 6, because out of Rs 15 shown by them, a minimum
amount of Rs 3 to Rs 4 would be taken up by cartage and labour
charges and the hire of four floodlights at the rate of Rs 1.50 per
floodlight would come to Rs 6. Is it possible to believe that in the
year 1971 two microphones — even one, we may assume — with
five loudspeakers and stand-by battery arrangements coupled with
the services of an attendant to look after the unit could be available
for Rs 6 for a period of about four hours in the city of Delhi? It is an
insult to our intelligence to be told that the charge would be
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something as low as Rs 6 or for the matter of that, even Rs 15. Then
again, it may be noticed that the bills Exs. PW 15/1-A and PW 15/1-
B were in respect of hire charges for the material supplied at the
public meetings at Tel Mandi on February 19, 1971 and Chuna
Mandi on February 22, 1971. Both these public meetings were big
public meetings which, according to the evidence, were attended by
more than 2000 people and it is, therefore, quite reasonable to
assume that a large number of durries must have been required at
each of these two public meetings as mentioned in the bills Ex. PW
15/1-A and PW 15/1-B. The bill Exs. PW 15/1-C showing hire
charges for sets of battery operated loudspeakers for announcing on
scooter for two days is also quite natural because it is in evidence
that announcements of public meetings were made from scooters
and battery operated loudspeakers must have been utilised for the
purpose. It is significant that the first respondent has not shown
hiring of battery operated loudspeakers from any other party. We
are, therefore, satisfied beyond doubt that the three bills Exs. PW
15/1-A, PW 15/1-B and PW 15/1-C are genuine and they correctly
show the expenses incurred by the first respondent.”
ii. In High Court of Judicature at Bombay v. Shashikant S. Patil &
Anr.2, the Hon’ble Supreme Court observed as follows:-
“16. The Division Bench of the High Court seems to have
approached the case as though it was an appeal against the order of
the administrative/disciplinary authority of the High Court.
Interference with the decision of departmental authorities can be
permitted, while exercising jurisdiction under Article 226 of the
Constitution if such authority had held proceedings in violation of the
principles of natural justice or in violation of statutory regulations
prescribing the mode of such enquiry or if the decision of the
authority is vitiated by considerations extraneous to the evidence2
(2000) 1 SCC 416
15
and merits of the case, or if the conclusion made by the authority, on
the very face of it, is wholly arbitrary or capricious that no
reasonable person could have arrived at such a conclusion, or
grounds very similar to the above. But we cannot overlook that the
departmental authority (in this case the Disciplinary Committee of
the High Court) is the sole judge of the facts, if the enquiry has been
properly conducted. The settled legal position is that if there is some
legal evidence on which the findings can be based, then adequacy or
even reliability of that evidence is not a matter for canvassing before
the High Court in a writ petition filed under Article 226 of the
Constitution.”
iii. In United Bank of India v. Biswanath Bhattacharjee 3, , the
Hon’ble Apex Court held as follows:-
“18. Apart from cases of “no evidence”, this Court has also indicated
that judicial review can be resorted to. However, the scope of judicial
review in such cases is limited [T.N.C.S. Corpn. Ltd. v. K. Meerabai,
(2006) 2 SCC 255 : 2006 SCC (L&S) 265] . In B.C.
Chaturvedi v. Union of India [B.C. Chaturvedi v. Union of India,
(1995) 6 SCC 749 : 1996 SCC (L&S) 80] a three-Judge Bench of this
Court ruled that judicial review is not an appeal from a decision but
a review of the manner in which the decision is made. It is meant to
ensure that the individual receives fair treatment and not to ensure
that the conclusion which the authority reaches is necessarily correct
in the eyes of the court. The court/tribunal in its power of judicial
review does not act as an appellate authority; it does not
reappreciate the evidence. The Court held that : (B.C. Chaturvedi
case [B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1996
SCC (L&S) 80] , SCC pp. 759-60, paras 12-13)3
(2022) 13 SCC 329
16
“12. Judicial review is not an appeal from a decision but a
review of the manner in which the decision is made. Power of
judicial review is meant to ensure that the individual receives fair
treatment and not to ensure that the conclusion which the authority
reaches is necessarily correct in the eye of the court. When an
enquiry is conducted on charges of misconduct by a public servant,
the Court/Tribunal is concerned to determine whether the enquiry
was held by a competent officer or whether rules of natural justice
are complied with. Whether the findings or conclusions are based on
some evidence, the authority entrusted with the power to hold
enquiry has jurisdiction, power and authority to reach a finding of
fact or conclusion. But that finding must be based on some evidence.
Neither the technical rules of the Evidence Act nor of proof of fact or
evidence as defined therein, apply to disciplinary proceeding. When
the authority accepts that evidence and conclusion receives support
therefrom, the disciplinary authority is entitled to hold that the
delinquent officer is guilty of the charge. The Court/Tribunal in its
power of judicial review does not act as appellate authority to
reappreciate the evidence and to arrive at its own independent
findings on the evidence. The Court/Tribunal may interfere where
the authority held the proceedings against the delinquent officer in a
manner inconsistent with the rules of natural justice or in violation of
statutory rules prescribing the mode of enquiry or where the
conclusion or finding reached by the disciplinary authority is based
on no evidence. If the conclusion or finding be such as no reasonable
person would have ever reached, the Court/Tribunal may interfere
with the conclusion or the finding, and mould the relief so as to make
it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where
appeal is presented, the appellate authority has co extensive power
to reappreciate the evidence or the nature of punishment. In a
disciplinary inquiry, the strict proof of legal evidence and findings on
17
that evidence are not relevant. Adequacy of evidence or reliability of
evidence cannot be permitted to be canvassed before the
Court/Tribunal. In Union of India v. H.C. Goel [Union of India v. H.C.
Goel, 1963 SCC OnLine SC 16 : (1964) 4 SCR 718 : AIR 1964 SC
364] , this Court held at p. 728 that if the conclusion, upon
consideration of the evidence reached by the disciplinary authority,
is perverse or suffers from patent error on the face of the record or
based on no evidence at all, a writ of certiorari could be issued.”
24. On the cumulative strength of the submissions, the Learned Advocate,
prayed that this Court exercised its jurisdiction to set aside the order of
dismissal dated 18th July, 2008 and the subsequent rejection of the
statutory petition dated 26th May, 2009 and to direct reinstatement of the
petitioner with all consequential benefits.
25. The Learned Advocate representing the respondents stoutly defended the
disciplinary proceedings and the consequential orders of dismissal dated
18th July, 2008 and rejection of statutory petition dated 26 th May 2009. It
was submitted at the outset that the petitioner was an enrolled member of
the disciplined arm force interested with the duty of regarding the
international border and the allegations against him struck at the very root
of institutional integrity.
26. It was contended that while posted with 127 Battalion, BSF at BOP Gitaldah
and operationally sensitive area, vulnerable to cross border smuggling-
credible information was received regarding the petitioner’s involvement in
facilitating smuggling activities. A written complaint was lodged by the
Company Commander after preliminary verification of the incident dated
17th October, 2007.
18
27. According to the Learned Advocate representing the respondents on the said
date, the petitioner along with a co-accused, was found to have permitted
smuggler to transport 350 bottles of Phensedyl across the border in
exchange of illegal gratification of Rs.10,000/-. The respondent submitted
that the quantity of contraband seized 350 Phensedyl bottles packed in
seven bundles was substantial and the incident was not a trivial lapse, but a
deliberate act prejudicial to good order and discipline within the meaning of
Section 40 of the Border Security Force Act, 1968.
28. It was further emphasized that the proceedings were conducted strictly in
accordance with the statutory framework of the BSF Act and Rules framed
thereunder. Hearing under Rule 45 was duly conducted. The petitioner was
informed of the charges and given opportunity to respond. Thereafter, a
record of evidence was prepared in his presence and within his hearing.
During the ROE, the petitioner was afforded full opportunity to cross-
examine prosecution witnesses and to make a statement in defence. He did
cross-examine the witnesses but chose not to produce any defence witness.
29. Upon consideration of the record of evidence, the Commandant found a
prima facie case and ordered trial by Summary Security Force Court in terms
of Rule 51. The SSFC trial was conducted over multiple dates in July, 2008.
Seven prosecution witnesses and five court witnesses were examined. The
petitioner again pleaded not guilty and was given opportunity to defend
himself. The proceedings, it was submitted, were in conformity with the
principles governing military and paramilitary trials.
19
30. Addressing the petitioner’s contention regarding reliance on the evidence of
apprehended smuggler, the Learned Counsel submitted that the conviction
was not based solely upon their statements but upon the cumulative
assessment of oral testimonies, operational reports and surrounding
circumstances. It was urged that members of the force who detected the
smuggling attempt and other relevant witnesses corroborated the sequence
of events. The evidentiary appreciation by the SSFC being a fact-finding
authority under a special statute cannot be lightly interfered with.
31. With regard to the alleged absence of recovery of bribe money from the
petitioner, the Learned Counsel submitted that recovery of tainted currency
is not a sine qua non for establishing misconduct under Section 40 of the
Act. The offence charged was one of misconduct, prejudicial to discipline,
and the evidence on record sufficiently established connivance and
dereliction of duty. The respondent contended that the amount of
Rs.10,000/- was part of the evidence considered by the Court and the
quantum of bribe whether large or small did not dilute the gravity of breach
of trust by a border guard.
32. It was further submitted that the punishment of dismissal was proportionate
to the seriousness of the misconduct, a member of a border guarding force,
facilitating cross-border smuggling, compromise national security and
institutional credibility. The respondents urged that in a disciplined force,
integrity is non-negotiable and acts of corruption cannot be viewed with
leniency merely on the basis of length of service. It was further submitted
that the statutory petition preferred by the petitioner was duly considered at
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the directorate level, the rejection dated 26 th May, 2009 was issued after
examination of the trial proceedings and findings and no procedural
irregularity or miscarriage of justice was found warranting interference.
33. In conclusion, the Learned Advocate representing the respondent submitted
that the disciplinary proceedings were conducted in strict compliance with
the BSF Act and Rules. The petitioner was afforded full opportunity of
defence. The finding of guilt was based on evidence duly recorded and the
punishment imposed was commensurate with the gravity of the misconduct.
It was therefore prayed that writ petition be dismissed.
34. The submissions advanced on behalf of the petitioner and the respondents
travel along two distinct but intersecting trajectories.
35. The Learned Advocate representing the petitioner emphasised that the
conviction rested substantially on statements of apprehended smugglers
being interested witnesses facing penal consequences. No recovery of
Rs.10,000/- was made from the petitioner. No marked currency, seizure
memo, or independent documentary corroboration existed. The alleged bribe
amount appeared economically incongruous when compared with 350
bottles of Phensedyl. Material inconsistencies in testimony were not
reconciled in a reasoned manner. Log Book entries were not considered with
regard to the presence of the petitioner on the alleged date and time of the
incident of connivance. The vital witnesses were not examined and the
deposition was based on hearsay.
36. According to the Learned Advocate representing the respondents,
departmental proceedings are not governed by strict criminal evidence
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standards. Testimony of smugglers found incredible is legally permissible.
The conviction was based on cumulative appreciation of prosecution and
other court witnesses not solely on smugglers’ statements. Recovery of bribe
money is not indispensable to establish misconduct under Section 40 of the
Act. Integrity within a border force admits no compromise.
37. The respondents are correct that strict criminal standards do not apply. Yet
the petitioner’s contention regarding corroborative assurance cannot be
dismissed as trivial. Where conviction relies substantially on testimony of
accomplice like witnesses, prudential corroboration enhances reliability. The
absence of recovery does not nullify misconduct, but strengthens the
petitioner’s plea that evidentiary articulation required greater depth.
38. The Court is conscious that the Border Security Force operates along
thousands of kilometres of international border, a substantial portion of
which remains vulnerable to narcotic and contraband trafficking. Statistical
data placed in public domain by enforcement agencies indicate that seizures
of Phensedyl and other codeine based cough syrup along Indo Bangladesh
Border frequently run into tens of thousands of bottles annually. In such a
theatre of operations, even a single instance of collusion by uniformed
personnel has systematic ramifications.
39. The respondents have demonstrated as follows:-
i. A hearing under Rule 45 was conducted;
ii. A Record of Evidence (ROE) was prepared in the presence of the
petitioner;
iii. Opportunity of cross-examination was granted;
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iv. Trial by SSFC followed with examination of seven prosecution
witnesses and five court witnesses;
v. A statutory petition was considered and rejected.
40. On the plane of a formal compliance, the process cannot be branded void.
41. Yet procedural compliance is the threshold of enquiry. The deeper question
is whether the evidentiary appreciation and punishment determination
reflect application of mind commensurate with the seriousness of dismissal.
42. The conviction rests significantly on testimonial evidence, including
statements of apprehended smugglers. In disciplinary jurisprudence
accomplice testimony is not inadmissible however, long-standing principles
of evidentiary prudence require corroborative assurance where testimony
emanates from interested participants. The disciplinary proceedings are
edificed on the concept of preponderance of probabilities rather than proof
beyond reasonable doubt as in a criminal trial.
43. The following aspects, merits closer analysis:-
a. Absence of recovery of bribe money to be the alleged amount of
Rs.10,000/-,
b. No recovery of tainted currency from the petitioner,
c. No marked currency operation,
d. No contemporaneous documents were seized i.e. seizure memo, call
recording, transfer of bribe, documentary trial evidencing receipt.
44. In corruption related disciplinary matters across public services, empirical
review of reported decisions indicates that recovery of tainted currency or
demonstrably financial linkage significantly strengthens findings of guilt.
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While recovery is not indispensable, its absence heightens the need for
corroborative strength elsewhere.
45. The allegation involved 350 bottles of Phensedyl. Assuming even a
conservative black-market valuation, per bottle, the aggregate value of the
consignment would substantial exceed the all amount of Rs.10,000/-. The
Court does not intend to embark upon market speculation or nefarious
activities. However, proportionality between alleged illegal gratification and
scale of smuggling forms part of internal credibility analysis. Where an
allegation presents economic improbability, reasoned articulation becomes
essential.
46. The SSFC finding as reflected in the material materials does not indicate
engagement with this aspect. Acceptance of the prosecution narrative
appears conclusive rather than analytically reasoned.
47. It is settled that this Court shall not appreciate evidence as an appellate
forum. Interference is warranted where findings are perverse, based on no
evidence or without consideration of material factors.
48. The present case does not disclose absence of evidence. However, it reveals
argument of inadequacy in articulation of how the evidence overcame the
defence objections. The dismissal from service entails loss of livelihood, loss
of pensionary benefits, stigma affecting future employment, social and
reputational consequences. The petitioner had rendered nearly 17 years of
service prior to the incident. No misconduct has been cited.
49. The misconduct of alleged facilitation of smuggling is undoubtedly grave. In
similar reported cases involving proven corruption in uniformed services,
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dismissal is commonly upheld. However, proportionality analysis requires
that punishment correspond to the certainty of proof and surrounding
circumstances.
50. Where evidentiary doubts though not sufficient to annul conviction, cast
shadows upon the conclusiveness of guilt, a calibrated reconsideration of
punishment is warranted.
51. This Court must avoid two extremes i.e. undermining institutional discipline
by substituting its own factual conclusions and abdicating constitutional
oversight in the face of procedural formality. This Court does not substitute
its own factual conclusions, re-appreciate evidence as an appellate forum,
dilute discipline within a uniformed force. However, constitutional oversight
demands that punishment be anchored in reasoned evaluation, particularly
where livelihood and reputation are adversely affected. Between outright
annulment and uncritical affirmation lies a constitutionally balanced path.
52. The petitioner was appointed in the Border Security Force (hereinafter
referred as “BSF”) as Constable on 13.12.1990. Thereafter, the petitioner
was transferred to Tripura under 123 Battalion. In the year 1997, the
petitioner was transferred to the State of Punjab (Water Wing) and thereafter,
in the year 2001, the petitioner was again transferred to the State of Gujrat
(Water Wing). On and from 2006, the petitioner was posted at North Bengal
Frontier Headquarter, Siliguri.
53. On 12.01.2008, Mr. Pratap Singh, A. C. Coy-Commander had submitted a
report, i.e., Connivance case to the Commandant of 127 Battalion BSF.
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54. On the basis of the aforesaid report, charge-sheet was issued upon the
petitioner on 29.05.2008.
55. The Commandant, 127 Battalion BSF CBR (WB) had directed the Deputy
Commandant of the Unit to prepare the Record of Evidence on 27.06.2008.
56. In the Record of Evidence, witnesses were examined and documents were
exhibited. Seven persons were arranged as prosecution witnesses. Out of
seven prosecution witnesses, three persons were smugglers. None of the
witnesses could recollect the date of alleged incident, i.e. 17.10.2007.
Prosecution Witness No. 5, Bhola Burman, one of the smugglers, stated he
was present at the spot of the incident but he did not witness the exchange
of money. Despite request, the Log Book was not exhibited and the questions
asked by the petitioner were said to be irrelevant and not recorded during
preparation of Record of Evidence.
57. At the time of preparation of Record of Evidence, first time, the petitioner
came to know that on 08.01.2008, one of the smugglers, Milan Kumar
Burman was detained on suspect movement near OP/NAKA No. 3 of BOP,
Gitaldah by the Naka Party and on searching, nothing could be recovered
from the possession of said Milan Kumar Burman. During the preliminary
questioning, said Milan Kumar Burman had narrated the concocted story
that on 17.10.2007, the petitioners had accepted bribe of Rs.10,000/- from
smugglers and allowed them to carry 350 bottles of Phensedyl to
Bangladesh. The said Milan Kumar Burman was released on the same day,
on 08.01.2008, on the basis of the assurance of the Prosecution Witness No.
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3, Dinanath Burman, that all the smugglers would be present before the
BSF authorities.
58. All five smugglers were present before the BSF authorities and signed letter
dated 11.01.2008 in Bengali script, i.e. Exhibit “B”, thereby specifically
mentioning the date of incident, i.e. 17.10.2007. At the time of preparation of
record of evidence and in trial before the SSFC, in both cases, only Milan
Kumar Burman, Kartik Burman and Bhola Burman had deposed Dulal
Burman and Profullo Burman had not been called for as witnesses. Profullo
Burman was the only one person who knew Mahajan.
59. After preparation of the Record of Evidence, the Commandant of 127
Battalion BSF had passed an order thereby directing the petitioner to be
tried by the Summery Security Force Court. The said trial commenced on
12.07.2008 and was completed on 18.07.2008.
60. At the time of Trial, the petitioner was further examined and statements
were recorded. From the deposition of the smugglers, contradictions
regarding the date of alleged incident and the statements recorded at the
time of preparation of Record of Evidence were reflected.
61. The Log Book mentioned at page 12 of Affidavit-in-Reply, revealed on
16.10.2007 the boat point was Kashim Ghat and went to Badurkuti through
Teen Bhagha River at 18.35 pm and returned to Kashim Ghat at 05.15 am
and on 17.10.2007, the petitioner was not present at the place of
occurrence, i.e., Kharja Gitaldah. The aforesaid Log Book and/or Naka Duty
Chart of the Speed Boat was not considered in the Trial.
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62. At the time of preparation of Record of Evidence as well as in the S.S.F.C.,
Trial, the smugglers stated that “Dhawa” was called by the petitioner. It was
contended the petitioner had no power to call “Dhawa”. There were three
persons in the Speed Boat. The petitioner, Md. Rashid, the petitioner in the
writ petition being WPA No. 13867 of 2009 and Guard Commander. The said
Guard Commander had the power to call “Dhawa”. From the aforesaid Log
Book, it was revealed that on 16.10.2007, the Guard Commander was J.D.
Dung Dungand on 17.10.2007, the Guard Commander was Sukrip Singh
and both the Guard Commanders had signed the said Log Book.
Surprisingly, no Guard Commander was called for as witness in the S.S.F.C,
trial and at the time of preparation of Record of Evidence the BSF authorities
had declined the request of the petitioner to call the said Guard
Commanders.
63. Mr. B. R. Burman and Mr. Viswa Kumar, Water Wing was also posted at the
place of occurrence, i.e. Kharja Gitaldah, but they were not examined.
Signature of the witnesses was not obtained on the deposition.
64. Constable Renjil K, witness called by the Court, specifically stated in the
month of October, 2007, the water in the river was less and the motorized
boat was not required. The distance of the Kashim Ghat and the place of
occurrence, i.e. Kharja Gitaldah was more than one kilometer.
65. No money was recovered from the petitioner. As per Log Book, the petitioner
was deployed at Kashimghat BOP on 17.10.2007. Except oral statements of
the smugglers, no single document was submitted and/or exhibited by the
BSF authorities thereby evidencing that the petitioner was present at Kharja
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Gitaldah on 17.10.2007 and/or the smuggling was made on 17.10.2007. The
phone call records and/or any investigation report was not exhibited.
66. The petitioner portrayed the dismissal as the culmination of a proceeding
that though procedurally staged was substantively infirm resting upon
interested testimony, non-citation and non-examination of independent
witnesses, non-appreciation of logbook entries, unsupported by recovery of
bribe money and marred by internal improbabilities concerning the alleged
acceptance of Rs.10,000/- for facilitating smuggling of 350 bottles of
Phensedyl.
67. The respondent in contrast projected the matter as one of institutional
betrayal. A member of a disciplined border guarding force, compromising
operational integrity in sensitive sector-where statutory procedure was
meticulously followed and evidence, cumulatively appreciated, justified the
severest penalty. The Court must examine where these narratives converge,
and where they part.
68. The petitioner does not deny that Rule 45 hearing, preparation of record of
evidence and SSFC trial, were conducted. His grievance is that these stages
have been formalistic and the appreciation of evidence lacked depth and
fairness.
69. The respondent emphasized that every statutory safeguard under the BSF
Act and Rule was observed. The petitioner was informed of the charges,
cross-examined witnesses, filed the defence statement and preferred a
statutory petition. The process, they contended, satisfied procedural
fairness.
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70. On the face of the record, procedural steps were undertaken. The petitioner’s
challenge is thus not to the existence of process, but to its qualitative
sufficiency, the distinction is material; procedural compliance in form does
not foreclose judicial enquiry into whether findings were supported by
reasoned consideration.
71. The disciplinary proceedings were conducted within statutory framework.
However, considering the petitioner’s challenge to reliance on interested
testimony, non-examination of vital witnesses and proper appreciation of
documents viz. log book etc., absence of recovery of alleged amount, need for
articulated reasoning and internal coherence of allegation, the petitioner’s
long prior service and the irreversible nature of dismissal, the order of
dismissal dated 8th July, 2008 as affirmed on 26th May, 2009 is set aside
remitting the petitioner’s case to the disciplinary authority based on the
discussions and the opinion of this Court for reconsideration to be
completed within 12 weeks from the date of communication of this order by
the petitioner.
72. This direction preserves the autonomy of the force, reinforces discipline, and
simultaneously affirm that punishment in a constitutional democracy, must
reflect reasoned justice rather than unexamined severity.
73. Accordingly, the instant writ petition being WPA 13868 of 2009 stands
disposed of. Connected application, if any, also stands disposed of.
74. There is no order as to costs.
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75. Photostat certified copy of this order, if applied for, be given to the parties on
priority basis on compliance of all formalities.
(Ananya Bandyopadhyay, J.)
