- (1.) The appellant enrolled in Border Security Force as a Constable on 1st April, 1988. On 27th of October, 2000 whilst he was deployed at B.O.P. Lachugacha, Jalpaiguri, West Bengal, an outpost of "A" Coy of the B.S.F., he exchanged some hot words with Nakka Commander with regard to the Naka duty. The dispute was ultimately patched up and the battalion was subsequently deployed at Kashmir. However, a charge sheet was issued on 9th November, 2001 on the following allegations: BSF ACT BSF ACT 1968 Section-40. SECTION 40 AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE IN THAT HE, At about 22.30 hrs. on 27.10.2000 Brought a local woman to Naka Machan, while performing ambush Duty in the area of BOP Lachugachh On International Border with Bangladesh. BSF ACT BSF ACT 1968 SECTION-26 SECTION -26 INTOXICATION CHARGE-II In that he, At about 22.30 hrs. on 27.10.2000, While an ambush duty in area of BOP Lachugachh found in a state of intoxication
(2.) It is not disputed that before issuance of the charge sheet the officiating Commandant of the 40th Battalion of BSF had ordered for record of evidence by an order dated 9th June, 2001. In view of the charge sheet, the appellant was informed by a notice that the Commandant proposes to try the appellant by Summary Security Force Court ( hereinafter referred to as SSFC) at 10-30 a.m. on 12th November, 2001 under Sections 40 and 26 of the Border Security Force Act, 1968. The appellant was given liberty to be present along with any person of the Battalion as friend, as permitted under Rule 156 of the B.S.F. Rules, 1969. The statement of one Constable Anup Singh was recorded during the course of the proceedings held by SSFC between 12th and 13th November, 2001. The appellant pointed out that there was a contradiction in the statement of Anup Singh and other witnesses. Accordingly, it was submitted that there was no worthwhile evidence on the record to show that the appellant had been in the company of a woman at the Naka Machan. It was also pointed out that the statement of the alleged woman was never recorded, nor was she produced before the S.S.F.C. In spite of the contradictory nature of the evidence, the same was relied upon against the appellant. It is also the case of the appellant that even with regard to the second charge of alleged intoxication, the same had not been proved by conducting a medical test. The S.S.F.C. had merely relied on the statements of P.W.s. According to the appellant, both the charges were not proved in accordance with the provisions of the Indian Evidence Act, 1872. It is also the case of the appellant that the proceedings have been conducted in breach of rules of natural justice. The record of evidence was illegally prepared on the basis of the order issued on 9th June, 2001. Section 87 of the B.S.F. Act clearly provides that the provisions of the Indian Evidence Act, 1872 shall be applicable to proceedings before the S.S.F.C. Since the evidence had not been recorded in accordance with the Evidence Act, the entire proceedings are vitiated.
(3.) It appears that on consideration of the entire matter, the appellant was found guilty of both the charges. Thereafter, in accordance with the provisions under the BSF Act he was ordered to be dismissed from service on 13th November, 2001.;