B. S. HARI COMMANDANT versus UNION OF INDIA & ORS.

Citation: [2023] 3 S.C.R. 431 · Decided: 13-04-2023 · Supreme Court of India · Bench: KRISHNA MURARI, AHSANUDDIN AMANULLAH · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 10 · see the full citation network in Lexace

Judgment (excerpt)

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[2023] 3 S.C.R. 431
431
B. S. HARI COMMANDANT
v.
UNION OF INDIA & ORS.
(Criminal Appeal No(s). 1890 of 2014)
APRIL 13, 2023
[KRISHNA MURARI AND
AHSANUDDIN AMANULLAH, JJ.]
Border Security Force Act, 1968 – Appellant-Commandant in
Border Security Force was sentenced to 10 years’ rigorous
imprisonment; imposed fine of Rs. 1,00,000/- and dismissed from
service for allegedly permitting smuggling of contraband goods
from India to Pakistan from Border fencing gate under his control
– Held: Though in the armed forces, including the paramilitary
forces, utmost discipline, unity of command are the sine qua non, the
doctrine of proportionality still holds the field – In the present case,
there is no direct evidence against the appellant – Except the
statement of the Subedar (who was the actual in-charge of the area
where the activity allegedly occurred) roping in the appellant, there
is no material against him – Statement of a single person alone,
ought not to have resulted in his conviction without other material(s)
incriminating him or pointing to his guilt – Thus, in the absence of
direct and cogent evidence against the appellant, even if the General
Security Force Court (GSFC) was convinced of his guilt, the
punishment handed out was too harsh and disproportionate –
Appellant was a first-time delinquent and not a habitual offender –
Moreover, the appellant has served the country for over 31½ years
without blame or blemish and received various awards including
medal from Hon’ble the President of India – His track record is
otherwise unquestionable – Impugned judgment of High Court set
aside – Conviction and sentence awarded by the GSFC set aside –
Appellant entitled to full retiral benefits from the date of
superannuation till date – Narcotic Drugs and Psychotropic
Substances Act, 1985 – Doctrine of Proportionality – Armed Forces.
Constitution of India – Article 226:
Criminal writ petitions – Power of High Courts to sift through
evidence – Discussed.
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SUPREME COURT REPORTS
[2023] 3 S.C.R.
Limit on exercise of power – Held: Art.226 is a succour to
remedy injustice and any limit on exercise of such power is only
self-imposed.
Judgments/Orders – Paragraph-wise numbering in – Held: It
is desirable that all Courts and Tribunals, as a matter of practice,
number paragraphs in all Orders and Judgments in seriatim –
Hon’ble Chief Justices of High Courts to consider adoption of a
uniform format for Judgments and Orders, including paragraphing
and accordingly direct the Courts and Tribunals subordinate to their
High Courts – Directions by Supreme Court.
Allowing the appeal, the Court
HELD: 1.1 In the armed forces of the Union, including the
paramilitary forces, utmost discipline, unity of command et al are
the sine qua non. That said, the doctrine of proportionality still
holds the field. In the absence of direct and cogent evidence
against the appellant, even if the GSFC was convinced of the
appellant’s guilt, the punishment handed out was too harsh, paying
heed that the appellant would, even then, be a first-time
delinquent, and not a habitual offender. Arguendo, that there be
some semblance of truth in the allegations, the punishment meted
out was disproportionate. [Paras 36, 37][442-H; 443-A-B]
1.2 The appellant has served the country for over 31 ½
years without blame or blemish, and has received various awards,
inter alia, including medal from Hon’ble the President of India.
The appellant’s track record is otherwise unquestionable. On
the alleged criminality, the undisputed and uncontroverted fact
remains that the appellant was commanding the Force operating
over a large area, including from where the Jerrycans allegedly
moved from the Indian side to the Pakistani side. However, it is
equally not in dispute that the actual manning of the area is by
the subordinate personnel of the Force. In the present instance,
the subordinate personnel have been adjudged guilty, indicating
their active involvement. Being the persons on the spot, it was
their primary responsibility to ensure that no crimes/offences/
questionable incidents took place on their watch. Moreover,
there is no direct evidence against the appellant. [Paras 38,
41][443-C, E-G]
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1.3 Save and except Subedar DS’s statement, roping in the
appellant, there is no material against him. Hence, ceteris paribus,
without other material(s) incriminating the appellant or pointing
to his guilt, the statement of a single person a

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