- (1.) 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 SEC -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. 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. The appellant challenged the aforesaid order of dismissal by filing a writ petition being W.P. 5505 (W) of 2002. This writ petition was disposed of by this Court on 13th May, 2002 with the direction to the respondents to supply copy of the S.S.F.C. proceedings. The appellant was also granted liberty to file a petition under Section 117 of the B.S.F. Act, 1968. The appellant submitted the necessary petition. This petition has also been dismissed by the Appropriate Authority by order dated 8th May, 2003 by passing the following order: The issues raised in your petition have been considered very carefully in the light of relevant records, legal provisions and evidence in SSFC trial proceedings. After a detailed consideration and careful scrutiny of all facts and circumstances of the case, the DG BSF has rejected the petition being devoid of merit. Upon dismissal of the petition, the appellant filed the present writ petition which has been dismissed by the learned Single Judge by order dated 28th April, 2004. It is this order of the learned Single Judge which has been challenged in the present appeal.
(3.) ALONG with the appeal, the appellant has filed a petition for stay of the impugned judgment. In the stay petition the submissions earlier made before the Trial Court have been reiterated.;