Full Judgment Text
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CASE NO.:
Appeal (crl.) 1056 of 2006
PETITIONER:
The Commandant, 68, Bn. BSF Gakulnagar
RESPONDENT:
Shri Arjun Das & another
DATE OF JUDGMENT: 16/10/2006
BENCH:
ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
(Arising out of SLP (CRL.) No. 66 of 2006)
ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is to the judgment rendered by a
learned Single Judge of the Guwahati High Court, Agartala
Bench. By the impugned order High Court upheld the
direction given for inquiry by learned SDJM, Belonia, South
Tripura. The revision petition was filed under the Code of
Criminal Procedure, 1973 (in short the ’Cr.P.C.)
Factual background as projected by the appellant is as
follows:-
On 31.12.1998 at about 5.50 p.m. Assistant
Commandant of BSF with special Patrol party of BOP
Radhanagar carried out special operation in BOP Rajnagar
area and intercepted one Commander Jeep bearing No. TR-03-
2031 loaded with 22 quintals of sugar in 44 bags, each bag
containing 50 kgs. The Jeep Driver i.e. respondent no.1 was
asked to produce documents relating to the stock and
transportation of sugar which was carried in the Jeep. But the
driver said that he had no paper and expressed his inability to
show as to who was the owner of the sugar. He stated that
there some unknown persons asked him to carry sugar in his
vehicle. The place where the vehicle was intercepted was at a
distance of about 200 yards from Indo-Bangladesh border.
Since the place of seizure was at a short distance from the
border and the answer given by the driver created strong belief
in the mind of the Assistant Commandant of the BSF that the
goods were intended for smuggling to Bangladesh where it was
in great demand, the Assistant Commandant arrested the
respondent and seized the sugar. On the next day i.e.
1.1.1999 at about 10.00 a.m. the arrested person was handed
over to the P.R. Bari Police Station and the seized articles were
handed over to the Inspector of Customs, Belonia who
acknowledged the receipt in writing. The respondent no.1 was
produced before learned SDJM, Belonia on 2.1.1999 who
started case no.1/99. Learned SDJM observed that on the
direction of BSF police forwarded the accused for no good
reason. He further observed that carrying of sugar is not a
penal offence and BSF had no authority to seize sugar on the
public road and the police should not have taken any person
from the BSF without being satisfied that any offence was
committed. The learned SDJM took serious view of the
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functioning of the BSF and held that the BSF personnel were
with their arms and might disobeyed all legal directions and
the police was giving indulgence to them by acting on the
directions of the BSF personnel. He directed release of the
accused at once. He further directed the P.R. Bari, Police
Station to find out the name of the BSF personnel who illegally
seized the sugar on the public road which according to him
was illegal. He also directed Company Commander Belonia
BSF, 68 Bn., BSF to enquire and report about the seizure of
sugar on the public road.
Questioning correctness of the order passed by learned
SDJM, the appellant filed revision petition before the
Guwahati High Court. Primary stand was that the order was
passed in respect of the BSF personnel without affording any
opportunity and without examining the powers of BSF
functionaries under the Customs Act, 1962 (in short ’Custom
Act’). The learned Single Judge dismissed the petition
observing that there was mere direction by the Court to make
an enquiry and the appellant behaved as if he is above law.
Learned counsel for the appellant submitted that the
order passed by the learned SDJM has no sanction in law.
Without considering the fact that the Government of India,
Ministry of Defence, Department of Revenue has issued a
notification on 20th December, 1969, further notification was
issued on 3.8.1974 which dealt with functioning of the BSF
personnel posted in the State of J & K, Punjab, Gujarat, West
Bengal, Assam and the U.T. of Tripura to carry out functions
of the nature indicated in the notifications. Without granting
opportunity to the particular BSF personnel to place relevant
facts for consideration, learned SDJM came to the conclusion
that an innocent person had been illegally detained. At the
stage the order was passed learned SDJM had no jurisdiction
to pass such order.
Learned counsel for the State, on the other hand,
submitted that there was absence of power by the BSF
functionaries to act in the manner done and learned SDJM
had, therefore, rightly passed the order.
It is accepted by learned counsel for the respondent that
the trial is still pending. The conclusions arrived at by learned
SDJM, therefore, were not appropriate. The stage to decide
whether the detention of the respondent and/or the authority
of the BSF Assistant Commandant was yet to be tested in trial.
Learned SDJM made some observations which prima facie do
not appear to be sustainable i.e. carrying sugar is not a penal
offence and/or BSF has no authority to seize the sugar on the
public road. These are matters which were to be decided in
the trial itself. Since the occurrence is nearly 7 years old it
would be appropriate to direct the learned SDJM to complete
the trial of the case as expeditiously as practicable. The
directions given by learned SDJM for conducting enquiry shall
not be carried out. The effect of the two notifications referred
to by learned counsel for the appellants shall be duly
considered during trial.
The appeal is allowed to the extent indicated.