VYAS, J. - (1.) IN the instant writ petition, the petitioner has prayed for quashing the finding and sentence of the G. C. M. Ex.-8 and letter dated 7. 8. 1992 Ex.-11, whereby appeal filed by wife of petitioner. Smt. Anchi Kanwar under Section 164, Army Act was returned.
(2.) ACCORDING to the facts of the petition, the petitioner was working as Sowar in Indian Army, 1 Horse (Skinner's Horse ). On 7. 6. 1991, he was arrested in connection with offence under Section 18 of the Narcotics Drugs & Psychotropic Substances Act, 1985 (in short, `the Act of 1985' hereinafter) for having been found in possession of 20. 020 kg of opium near village Thamansinghwala. Under the relevant Defence Personnel law, he was tried by the General Court Martial (in short, `gcm' hereinafter) and punished with a sentence to suffer rigorous imprisonment for 10 years as well as dismissal from service. At a much belated stage, vide application dated 20. 9. 2005, the respondents have taken an objection to the entertainment of the writ petition on the ground of territorial jurisdiction. It is contended that the incident happened at Sangroor in Punjab State and the court martial was conducted at Merrut Cantt. The respondents have argued that no cause of action accrued to the petitioner in the State of Rajasthan. Learned counsel for the respondents relied upon the decisions of this Court in S. B. Civil Writ Petition No. 3904/2005, decided on 7. 9. 2005, decided on 7. 9. 2005. In the reply affidavit, it is submitted on behalf of the petitioner that the respondents have taken objection to the maintainability of the petition after more than 12 years of filing of the writ petition and such objection itself is not maintainable at this belated stage. During the course of arguments, this Court directed the respondents place on record the confirmation order dated 10. 6. 1992. Vide application dated 20. 9. 2005, the respondents have filed order dated 10. 6. 1992 whereby the finding of the GCM has been confirmed by the General Officer Commanding, 22 Infantry Division, Major General K. S. Maan on 10. 6. 1992. The application is allowed. Order dated 10. 5. 1992 is taken on record. Adverting to the objection of the respondents on the ground of territorial jurisdiction, though, of course, raised at a much belated stage, it may be observed that Indian Army is headed by the Chief of Army Staff at the Army Headquarters in New Delhi. The position, in law, is that he can be sued by a citizen before any High Court in India. This, in itself, certainly does not carve out the legal formulation that without regard to the accrual of the cause of action the Chief of Army Staff at the Army Headquarters in New Delhi may be sued by a citizen before any High Court in India. It depends upon facts and circumstances of the case whereupon the accrual of cause of action may be gathered. Not only that the petitioner is permanent resident of Jodhpur district, the writ petition was filed before this High Court while the petitioner was undergoing imprisonment at Central Jail, Jodhpur as a sequel to the GCM duly confirmed by the competent authority by its order dated 10. 6. 1992. It must not be forgotten that the writ petition has been preferred by the petitioner against Union of India and its authorities under Article 226 of the Constitution of India alleging violation of Articles 14 and 21 of the Constitution while impugning the GCM proceedings and consequent punishment as well as sentence of imprisonment. The respondents had put in appearance in the matter way back on 25. 1. 1993 in the presence of the counsel for the respondents. The respondents filed their reply to the writ petition on 6. 9. 1994 without raising any objection to the maintainability of the writ petition before this High Court. So far as accrual of cause of action is concerned, it must remembered that commission of alleged offence took place in Punjab, GCM proceeding took place at Merrut and finding and sentence passed by the GCM was confirmed by Major General K. S. Maan, General Officer Commanding, 22 Infantry Division at field on 10. 6. 1992 ordering that the sentence of 10 years' RI shall be carried out by confinement in civil prison, in pursuance whereof, the petitioner has undergone sentence of imprisonment in Central Jail, Jodhpur. Thus, each fact/event contributing to the cause of action indicates that had it been a case of civilian trial for the offence committed in the State of Punjab by the criminal Court the question of territorial jurisdiction would have been certainly open to be raised in the manner sought by the respondents herein. But, in the instant case, in the totality of facts and circumstances, such an objection to the jurisdiction of this Court is not attracted. In the present writ petition, the petitioner has prayed for quashing finding of the GCM Ex.-8 and letter dated 7. 8. 1992 Ex.-11 besides praying for reinstatement in service and the relief is sought against respondent Union of India and others, being its authorities. In the present set of facts and circumstances, the judgment of this Court rendered in S. B. Civil Writ Petition No. 3904/2005 on 7. 9. 2005, relied upon by the counsel for the respondents, is not applicable. Facts and circumstances of the case on hand are different and in the peculiarity of the circumstances the decision of the Supreme Court rendered in the case of Dinesh Chandra Ghatori vs. Chief of Army Staff & Another, reported in (2001) 9 S. C. C. 525, is more aptly applicable.
(3.) TURNING to the merit of the case, learned counsel for the petitioner contended that GCM gravely erred in law in ignoring the provisions of Sections 43, 57 and 42 of the Act of 1985 which are mandatory. It is contended that search was conducted by an officer below the rank of Inspector of police nor there is any evidence that the substance seized was sent for chemical examination in sealed cover. He has argued that non-compliance of the mandatory provisions of the Act of 1985 left the entire trial vitiated and, therefore, the finding of the GCM and consequent order of punishment is arbitrary and illegal. Learned counsel for the petitioner next argued that wife of the petitioner, Smt. Anchi Kanwar made petition under Section 164 of the Army Act, 1950 and the competent authority seriously erred in returning the petition without considering it. He contended that Smt. Anchi Kanwar, being constituted attorney for and on behalf of her husband, petitioner Nathu Singh was lawfully entitled to make petition under Section 164 of the Army Act. It is contended by learned counsel for the petitioner that no reasons have been assigned for returning the petition. Opposing the writ petition, counsel for the respondents contended that GCM proceedings was carried through in accordance with law and the findings has been recorded by the GCM on the basis of the evidence coming up in the case. It is submitted that the Court Martial proceedings are governed by separate set of rules and regulations unlike civilian Trial Court and, therefore, the proceedings of the GCM cannot be appreciated in the same manner as proceedings of a cilian Trial Court. The GCM has taken into account all the aspects of the relevant law and has found the search conducted by the civil Police Official in accordance with Sections 42 and 43 of the Act of 1985. It is further contended that the GCM is quite competent to award punishment for a term more than seven years under Section 118 read with Section 69 of the Army Act for offence under Section 18 of the Act of 1985. Learned counsel for the respondents pointed out that the petition filed under Section 164 of the Army Act by Smt. Anchi Kanwar wife of the petitioner was not filed in accordance with law and, therefore, the same was returned. ;