LexEX. NAIK SARDAR SINGH versus UNION OF INDIA AND OTHERS
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A B EX. NAIK SARDAR SINGH v. UNION OF INDIA AND OTHERS I MAY 3, 1991 [S. RATNAVEL PANDIAJ'! AND K. JAYACHANDRA REDDY, JJ.] Army Act, 1950: Sections 63, 71 and 72-Summary Court- Martial-Punishment-Award of-To be commensurate with nature and degree of offence-Army Jawan carrying extra liquor bottles without C permit while proceeding on leave-Award of punishment of 3 months' • j R. l. and dismissal from service-Whether arbitrary and excessive. The appellant, who had put in 10 years of service as Jawan in the Army, was sentenced to 3 months' R.I. and dismissed from service by D the Summary Court-Martial, on the charge that his action in carrying 12 bottles of liquor while proceeding on leave to his home town was contrary to the orders on the subject. The appeal preferred by the appellant, pointing out the irregularities committed in the summary E F G H trial, and pleading that he had unblemished record of service, was also . -'< rejected by the higher authority. The Writ Petition filed by the appel- lant was also summarily rejected by the High Court. In the appeal before this Court, on behalf of the appellant it was contended that the summary trial was vitiated on account of several irregularities committed in conducting the trial, and that the sentence awarded to him was wholly disproportionate to the offence committed by him. Disposing of the appeal, and remanding the case to the Summary Court Martial on the question of sentence, this Court HELD I. The trial is not vitiated and no prejudice has been caused to the appellant, inasmuch as from the records it is found that the evidence has been duly recorded and, admittedly, the appellant was carrying extra seven bottles of liquor without the necessary permit. However, there is an element of arbitrariness in awarding severe punishments and, therefore, an interference is called for and the matter has to be remanded on the question of awarding any of the lesser punishments provided in the Army Act. [679E. 683G-H] 676 .... SARDAR SINGH v. UNION OF INDIA 677 2.1 Section 72 of the Army Act, 1950 provides that the court- martial may, on convicting a person subject to the Act, of any offences specified in Sections 34 to 68 inclusive, award either the particular punishment with which the offence is stated in the said sections to be punishable, or, in lieu thereof, any one of the punishments lower in the · scale set out in Section 71, regard being had to the nature and degree of offence. [680C-D) 2.2 In the instant case, in the charge sheet it is merely stated that the action of the appellant in carrying 12 bottles of liquor when he was proceeding to home town was against the orders on the subject. But in the counter affidavit it is stated that such an act of the appellant came within the meaning of Section 63 of the Act. This Section may cover various types of misconducts committed by way of an act or omission. It also provides for awarding any other lesser punishment mentioned in the Act. Therefore, much depends on the nature of the act or omission of which the person is found guilty. [680B, E) A B c 2.3 Admittedly, the appellant was granted leave_ w_hen he was D ~ · proceeding to bis home town. Enroute be had to pass through a place where prohibition was in force. He had a valid permit to carry 5 bottles of liquor and the extra 7 bottles were purchased from the Army Can- teen itself. Unless be bad some permits or chits given by some higher authorities, he could not have purchased these extra bottles from the Canteen. He was taking this liqour to bis home town to celebrate his E brother-in-law's marriage, but the local Civil Police checked his bag- gage and conf"iscated the bottles as he had no valid permit to carry the extra bottles. [679G-H, 680A) 2.4 Assuming that the offence committed by the appellant is covered by the residuary Section 63, but in awarding the punishment, f court-martial has to keep in view the spirit behind Section 72 and it has to give due regard to the nature and degree of the offence. Section 63 provides for awarding of any of the lesser punishments enumerated in Section 71. In view of tllese provisions· oflaw and having regard to the nature and degree of the offence, the punishments awarded to the appellant, namely, three months' R.I. and dismissal from service are G severe and are also violative of Section 72. Ends of justice will be suffi- ciently met if a lesser punish
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