http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: EX. NAIK SARDAR SINGH

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT03/05/1991

BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) PANDIAN, S.R. (J)

CITATION:  1992 AIR  417            1991 SCR  (2) 676  1991 SCC  (3) 213        JT 1991 (3)     1  1991 SCALE  (1)899

ACT:      Army  Act, 1950: Sections 63, 71 and 72-Summary  Court- Martial-Punishment-Award  of-To be commensurate with  nature and  degree  of  offence-Army Jawan  carrying  extra  liquor bottles  without permit while proceeding on  leave-Award  of punishment  of  3 months’ R.I. and dismissal  from  service- Whether arbitrary and excessive.

HEADNOTE:      The  appellant, who had put in 10 years of  service  as Jawan  in  the  Army, was sentenced to 3  months’  R.I.  and dismissed from service by the Summary Court-Martial, on  the charge  that  his action in carrying 12  bottles  of  liquor while  proceeding on leave to his home town was contrary  to the  orders  on the subject.  The appeal  preferred  by  the appellant, pointing out the irregularities committed in  the summary  trial, and pleading that he had unblemished  record of service, was also rejected by the higher authority.   The writ  Petition  filed by the appellant  was  also  summarily rejected by the High Court.      In  the  appeal  before this Court, on  behalf  of  the appellant  it  was  contended that  the  summary  trial  was vitiated  on account of several irregularities committed  in conducting  the trial, and the sentence awarded to  him  was wholly disproportionate to the offence committed by him.      Disposing of the appeal, and remanding the case to  the Summary  Court  Martial on the question  of  sentence,  this Court      HELD   1.  The trial is not vitiated and  no  prejudice has  been  caused  to the appellant, inasmuch  as  from  the records it is found that the evidence has been duly recorded and,  admittedly,  the appellant was  carrying  extra  seven bottles  of liquor without the necessary  permit.   However, there  is  an element of arbitrariness  in  awarding  severe punishments  and, therefore, an interference is  called  for and  the  matter  has  to be remanded  on  the  question  of awarding any of the lesser punishments provided in the  Army Act. [679E. 683G-H]                                                        677      2.1  Section 72 of the Army Act, 1950 provides that the court-martial  may,  on convicting a person subject  to  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

Act,  of  any  offences  specified  in  Sections  34  to  68 inclusive, award either the particular punishment with which the offence is stated in the said sections to be punishable, or, in lieu thereof, any one of the punishments lower in the scale set out in Section 71, regard being had to the  nature and degree of offence. [680C-D]      2.2   In  the instant case, in the charge sheet  it  is merely  stated that the action of the appellant in  carrying 12 bottles of liquor when he was proceeding to home town was against  the  orders  on the subject.  But  in  the  counter affidavit  it  is stated that such an act of  the  appellant came  within  the meaning of Section 63 of  the  Act.   This Section may cover various types of misconducts committed  by way  of an act or omission.  It also provides  for  awarding any   other   lesser  punishment  mentioned  in   the   Act. Therefore, much depends on the nature of the act or omission of which the person is found guilty. [680B,E]      2.3   Admittedly, the appellant was granted leave  when he was proceeding to his home town.  Enroute he had to  pass through  a place where prohibition was in force.  He  had  a valid  permit to carry 5 bottles of liquor and the  extra  7 bottles were purchased from the Army Canteen itself.  Unless he   had  some  permits  or  chits  given  by  some   higher authorities, he could not have purchased these extra bottles from  the  Canteen.  He was taking this liquor to  his  home town  to  celebrate his brother-in-law’s marriage,  but  the local  Civil Police checked his baggage and confiscated  the bottles  as  he  had  no valid permit  to  carry  the  extra bottles. [679G-H, 680A]      2.4   Assuming  that  the  offence  committed  by   the appellant  is  covered by the residuary Section 63,  but  in awarding  the punishment, court-martial has to keep in  view the  spirit behind Section 72 and it has to give due  regard to  the  nature  and  degree of  the  offence.   Section  63 provides  for  awarding  of any of  the  lesser  punishments enumerated  in Section 71.  In view of these  provisions  of law  and  having  regard to the nature  and  degree  of  the offence,  the punishments awarded to the appellant,  namely, three months’ R.I. and dismissal from service are severe and are  also violative of Section 72.  Ends of justice will  be sufficiently  met if a lesser punishment as  provided  under Section 71(f) is awarded to the appellant. [682E-F, 684F]      2.5  Accordingly, the punishments are set aside and the matter  remanded to the court-martial which shall award  any of the lesser                                                        678 punishments   having   due   regard  to   the   nature   and circumstances  of the case.  Any detention suffered  by  the appellant after the orders of the court-martial will not  be treated  as  a disqualification for being  rein-stated  into service. [648B]      Ranjit  Thakur v. Union of India and Others,  [1987]  4 SCC 611 and Bhagat Ram v. State of Himachal Pradesh,  [1983] 2 SCC 442, relied on.      Council  of  Civil Service Unions v. Minister  for  the Civil Service, [1984]3 AII ER 935, 950, referred to

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 67 of 1991.      From  the Judgement and Order dated 27.11.1987  of  the Delhi High Court in Crl. W. No. 527 of 1987.      N.N. Gupta and Rajiv Dutta for the Appellant.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

    J.D.  Jain, Maninder Singh and Ms. Sushma Suri for  the Respondents.      The Judgement of the Court was delivered by      K. JAYACHANDRA REDDY, J.  This appeal, pursuant to  the special leave granted, is directed against the order of  the High  Court of Delhi dismissing the writ petition  filed  by the appellant summarily.      The  appellant  was serving as a Jawan  in  the  Indian Army.  On 17th September, 1985, he applied for leave and  it was  granted.  He was going to his home town, a  village  in Rajasthan.   He purchased 11 bottles of sealed rum  and  one bottle  of brandy from his Unit Canteen as he  required  the same to celebrate the marriage of one of his close relations at his home town.  Admittedly, the appellant was entitled to carry  4 bottles of rum and one bottle of brandy as per  the Unit Regulations/leave certificate when he was proceeding on leave.  According to the appellant, the remaining 7  bottles of  rum he was able to purchase from the Unit  Canteen  over and  above  his  entitlement on the orders  of  its  Company Commander  and Commanding Officer on  compassionate  grounds and that there was a written order to that effect which  was retained  by the Salesman of the Unit Canteen at the time of delivery of the extra 7 bottles of rum.  Enroute to his home                                                        679 town  he had to pass through Surendra Nagar which was  under prohibition.   The  local  Civil Police  at  Surendra  Nagar intercepted  him and confiscated the bottles of  liquor  and handed  over the appellant alongwith the liquor  bottles  to the City Police Station, Surendra Nagar.  The City Police in turn  handed  over him to his Unit authorities  for  action. The  6th  respondent,  the  Officer  Commanding,  98   Field Regiment,  ordered a summary court-martial during which  the witnesses  including the Civil, Police Officer  of  Surendra Nagar  were examined.  Ultimately the summary  court-martial sentenced the appellant to three months’ R.I. and  dismissed him from service with effect from 9th October, 1985 by which time  the appellant had already put in 10 years of  service. His  plea  throughout  has been that he  had  purchased  the liquor  for the marriage of his brother-in-law on the  basis of  the  permit issued to him and the chits  issued  by  his superiors  enabling him to draw the extra 7 bottles  of  rum and  that  he  had no other bad intention  in  carrying  the liquor  bottles.   He  preferred  an  appeal  to  the   Army Commander  mentioning several irregularities in the  summary trial.   He  also pleaded that he  was  having   unblemished record of service in the Army, but his appeal was  rejected. Thereafter he filed a writ petition in the Delhi High  Court which was summarily rejected.      In  this appeal the learned counsel for  the  appellant submitted that several irregularities have been committed in conducting the summary trial.  But from the records we  find that  the evidence has been duly recorded and further it  is an  admitted  fact that the appellant was carrying  extra  7 bottles  of rum without the necessary permit.  Therefore  we are  unable  to  agree with the counsel that  the  trial  is vitiated  and we are of the view that no prejudice has  been caused.    The   main  submission  and  perhaps   the   only submission,  if  we may say so, in this appeal is  that  the sentence awarded to the appellant is wholly disproportionate to  the offence committed by him.  According to the  learned counsel the extreme punishment of imprisonment for 3  months and  dismissal from the service under the  circumstances  is uncalled for.      We   find  considerable  force  in   this   submission. Admittedly  the  appellant  was granted leave  when  he  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

proceeding to his home town and unfortunately enroute to his home town he had to pass through Surendra Nagar where  there was prohibition in force.  However, he had a valid permit to carry  5 bottles, the extra 7 bottles of rum,  according  to the  appellant, were purchased from the Army Canteen  itself and there is no dispute about the same.  Unless he had  some permits or chits given by some higher authorities permitting him  to purchase these bottles, he could not have  purchased the same from the Canteen                                                        680 over and above the bottles for which he had a valid  permit. He was taking this liquor to his home town to celebrate  his brother-in-law’s  marriage, but to his bad luck,  the  Civil Police of Surendra Nagar checked his baggage and confiscated the  bottles  as he had no valid permit to carry  the  extra bottles.  Under these circumstances the question is  whether such a severe penalty is called for.  In the chargesheet  it is  merely  stated  that  the action  of  the  appellant  in carrying  11 bottles of sealed rum and one bottle of  sealed brandy when he was proceeding to his home town is  "contrary to  the  existing orders on the subject".  In  the  counter- affidavit  it  is stated that such an act of  the  appellant comes within the meaning of Section 63 of Chapter VI of  the Army  Act, 1950 (‘Act’ for short) which  enumerates  various types of offences.  Section 63 lays down as under:          "63.   Violation of good order  and  discipline-Any          person subject to this Act who is guilty of any act          or  omission  which, though not specified  in  this          Act,  is  prejudicial to good  order  and  military          discipline  shall, on conviction by  court-martial,          be  liable to suffer imprisonment for a term  which          may  extend to seven years or such less  punishment          as is in this act mentioned". The Section may cover various types of misconducts committed by a person by way of an act or omission.  This Section also provides for awarding any other lesser punishment  mentioned in the Act.  Therefore such depends on the nature of the act or  omission  of  which  the person is  found  guilty.   The provisions in Chapter VII enumerate various punishments that can   be  awarded.   Section  71  of  the  Act  deals   with punishments awardable by court-martial and reads as under:          "71.    Punishments  awardable  by   courts-martial          Punishments may be inflicted in respect of offences          committed  by  persons  subject  to  this  Act  and          convicted by courts-martial, according to the scale          following, that is to say-          (a) death;          (b)  transportation for life or for any period  not          less than seven years;          (c)  imprisonment, either rigorous or  simple,  for          any period not exceeding fourteen years;                                                        681          (d) cashiering, in case of officers;          (e) dismissal from the service;          (f)  reduction to the ranks or to a lower  rank  or          grade  or place in the list of their rank,  in  the          case  of  warrant officers.; and reduction  to  the          ranks  or to a lower rank or grade, in the case  of          non-commissioned officers;          Provided  that  a warrant officer  reduced  to  the          ranks  shall not be required to serve in the  ranks          as a sepoy;          (g) forfeiture of seniority of rank, in the case of          officers,  junior  commissioned  officers,  warrant          officers   and   non-commissioned   officers;   and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

        forfeiture of all or any part of their service  for          the  purpose  of promotion, in the case of  any  of          them   whose  promotion  depends  upon  length   of          service;          (h)  forfeiture  of  service  for  the  purpose  of          increased  pay,  pension or  any  other  prescribed          purpose;          (i)  severe reprimand or reprimand, in the case  of          officers,  junior  commissioned  officer,   warrant          officers and non commissioned officers;          (j)  forfeiture of pay and allowances for a  period          not exceedind three months for an offence committed          on active service;          (k) forfeiture in the case of a person sentenced to          cashiering  or  dismissal from the service  of  all          arrears  of  pay and allowances  and  other  public          money due to him at the time of such cashiering  or          dismissal;          (l) stoppage of pay and allowances until any proved          loss  or damage occasioned by the offence of  which          he is convicted is made good." It  can  be seen that Sections 71(a) to  71(e)  and  Section 71(k)  provide  for extreme punishments and  are  severe  in nature.   Sections 71(f) to 71(j) and Section 71(l)  provide for comparatively lesser punishments.  Section 72 of the Act is the next relevant Section which reads as under:                                                        682          "72.  Alternative punishments awardable  by  court-          martial-Subject  to the provisions of this  Act,  a          Court-Martial  may, on convicting a person  subject          to  this  Act to any of the offences  specified  in          Sections  34  to  68 inclusive,  award  either  the          particular  punishment  with which the  offence  is          stated  in the said sections to be punishable,  or,          in  lieu thereof, any one of the punishments  lower          in  the  scale set set out in  Section  71,  regard          being had to the nature and degree of the Offence."                                          (emphasis supplied) Section 73 of the Act deals with combination of  punishments and it reads as under:          "73.  Combination  of punishments-A sentence  of  a          court-martial may award in addition to, or  without          any one other punishment, the punishment  specified          in  clause (d) or clause (e) of Section 71 and  any          one or more of the Punishments specified in clauses          (f) to (l) of that section." It can be seen that under Section 73 of the Act, the  court- martial  may  award more than one punishments  as  mentioned therein.   In  the  instant  case Section  63  also  is  not mentioned  in  the chargesheet.  Assuming that  the  offence committed  by  the  appellant is covered  by  the  residuary Section 63 but in awarding the punishment the  court-martial has to keep in view the spirit behind Section 72 of the  Act and  it has to give due regard to the nature and  degree  of the  offence.  It can be seen that Section 63  provides  for awarding any of the lesser punishments enumerated in Section 71  of  the  Act.  In view of these provisions  of  law  and having  regard to the nature and degree of the  offence,  we are  firmly of the view that the punishments awarded to  the appellant  namely,  three months’ R.I.  and  dismissal  from service are severe and are also violative of Section 72.      In Council of Civil Service Unions v. Minister for  the Civil Service, [1984] 3 All ER 935, 950 Lord Diplock said:          "Judicial  review has I think developed to a  stage          today when, without reiterating any analysis of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

        steps by which the development has come about,  one          can  conveniently  classify under three  heads  the          grounds  on which administrative action is  subject          to control by judicial review.  The first ground  I          would call ‘illegality’, the second ‘irrationa-                                                        683          lity’ and the third ’procedural impropriety !  This          is not to say that further development on a case by          case  basis may not in course of time  add  further          grounds.  I have in mind particularly the  possible          adoption   in  the  future  of  the  principle   of          ’proportionality’   which  is  recognised  in   the          administrative law of several of our fellow members          of the Eurpoean Economic community,....." This  principle  was followed in Ranjit Thakur v.  Union  of India  and  Others,  [1987]  4  SCC  611  where  this  Court considered  the question of doctrine of  proportionality  in the matter of awarding punishment under the Army Act and  it was observed thus:          "The   question  of  the  choice  and  quantum   of          punishment   is   within   the   jurisdiction   and          discretion of the court-martial.  but the  sentence          has  to  suit  the offence and  the  offender.   It          should  not  be  vindictive or  unduly  harsh.   It          should not be so disproportionate to the offence as          to  shock  the conscience and amount in  itself  to          conclusive  evidence  of  bias.   The  doctrine  of          proportionality, as part of the concept of judicial          review,  would ensure that even on an aspect  which          is, otherwise, within the exclusive province of the          court-martial, if the decision of the court even as          to  sentence  is an outrageous defiance  of  logic,          then   the  sentence  would  not  be  immune   from          correction.    Irrationality  and  perversity   are          recognised grounds of judicial review." In Bhagat Ram v. State of Himachal Pradesh, [1983] 2 SCC 442 this Court held as under:          "It  is equally true that the penalty imposed  must          be commensurate with the gravity of the misconduct,          and  that  any  penalty  disproportionate  to   the          gravity  of  the misconduct would be  violative  of          Article 14 of the Constitution." Applying  these principles to the instant case, We are  also constrained to say that there is an element of arbitrariness in awarding these severe punishments to the appellant.      We  have heard both the learned counsel on this  aspect elaborately  and  we are satisfied that an  interference  is called for and the matter has to be remanded on the question of awarding any of the lesser punishments.  Having given our earnest consideration to the                                                        684 facts  and  circumstances of this case and in  view  of  the submissions  made by both the counsel, we feel that ends  of justice  will sufficiently be met if a lesser punishment  as provided  under Section 71(f) is awarded to  the  appellant. Accordingly,  we set aside the punishments of three  months’ R.I. and dismissal from service and remand the matter to the court   martial  which  shall  award  any  of   the   lesser punishments   having   due   regard  to   the   nature   and circumstances  of  the case and in the light  of  the  above observations  made  by us.  Since we are setting  aside  the sentence of three months’ R.I. any detention suffered by the appellant after the orders of the court-martial shall not be treated  as  a disqualification for  being  reinstated  into service which shall, however, be subject to any of the minor

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

punishments  to  be awarded by the  court-martial.   Already much  time has lapsed, therefore, we hope the  court-martial would  dispose  of the matter as expeditiously  as  possible preferably within three months.  The appeal is thus disposed of subject to the above directions. N.P.V.                               Appeal disposed of.                                                        685