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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.