SUPREME COURT OF INDIA
Commandant, 68, Bn. BSF Gakulnagar
Vs
Arjun Das and Another
Appeal (Crl.) 1056 of 2006 (Arising Out of Slp (Crl.) No. 66 of 2006)
(Arijit Pasayat and L. S. Panta, JJ)
16.10.2006
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 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.