JUDGMENT
Anil Dev Singh, J.
1. By this writ petition, the petitioners seek quashing of the order of the Commandant, 138 Bn. BSF, dated May 2,2001 dismissing the petitioners from service and for direction to reinstate the petitioners with all consequential benefits including back wages. The facts giving rise to the writ petition are as follows:-
2. One Constable Sarwan Lal posted in 138 Bn. BSF, made a complaint against the petitioners that they while performing their OP duty allowed safe passage to smugglers from India to Bangladesh near BP No. 149 (MP). He also reported that on March 11, 2001 the petitioners snatched his personal weapon SLR Butt No. 05, and manhandled him and gave beating to him with Butt of the said weapon causing minor injury on his right leg. A charge sheet was seared on the petitioners on March 15, 2001. From March 15, 2001 to March 17, 2001 summary of evidence was recorded which was followed by a fresh charge sheet dated April 25, 2001 and also a final charge sheet dated April 28, 2001. The charge sheet dated April 28, 2001 reads as under:-
“CHAR GESHEET
The accused No. 90006793 Constable Nasib Singh (Accused No. 1) and No. 90755132 Constable Mohd. Latif (Accused No. 2) both of 138 Bn. BSF, are charged with:-
FIRST CHARGE
BSF ACT SECTION -40 AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE
In that they together,at BOP Raninagar on 11th March 2001 at about 1650 hours while performing OP duty from BP No. 148/1-S to 149/3-S, performed their OP Duty negligently regarding which 03 to 04 unknown smugglers with head load of contraband goods managed to cross over to Bangladesh from India side under the culvert near BP No. 149 (MP).
SECOND CHARGE:
BSEF ACT SECTION-40 AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE
In that they together, at BOP raninagar on 11th March 2001 at about 1710 hours while performing OP duty from BP No. 148-1-S to 149/3-S, improperly and without authority provided safe passage to unknown smuggler with head load of contraband goods for crossing under the culvert from India to Bangladesh near BP No. 149 (MP).
THIRD CHARGE
BSF ACT SECTION-40 AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE
In that they together, at BOP Raninagar near BP No. 149 (MP) on 11th March 2001 at about 1715 hours, while performing OP duty from BP No. 148/1-S to 149/3-S, snatched the personal weapon SLR Butt No. 05, Body No. 15415121 of No. 90172482 Constable Sarwan Lal of the same BOP and Unit, manhandled and beat him with the Butt of said weapon causing minor injury in his right leg.
Place: Seemanagar(WB) Sd/-
Dated:28 April, 2001 (B.K. MEHTA)
COMMANDANT
138 Bn. BSF."
3. Thereafter the petitioners were tried by the Summary Security Force Court. On May 2, 2001 the Summary Security Force Court held the petitioners to be guilty of the second and third charges contained in the charge sheet dated April 28, 2001. Consequently, the Summary Security Force Court convicted the petitioners and sentenced them to suffer dismissal from service. The finding and sentence of the Summary Security Force Court were promulgated on May 2, 2001. Pursuant thereto, the Commandant, 138 Bn. BSF, struck off the petitioners from the strength of 138 BN BSF. Thereupon the petitioners filed an appeal against the order passed by the Commandant dated May 2, 2001. The appeal of the petitioners did not find favor with the Appellate Authority, the Director General, B.S.F. and the same was rejected as being devoid of merit.
4. The petitioner have filed the instant writ petition challenging the order dated May 2, 2001 passed by the Commandant, 138 Bn. BSF. We have heard the learned counsel for the parties.
5. The learned counsel appearing for the petitioners submitted that the Summary Security Force Court passed the order of conviction without there being any incriminating evidence against the petitioners. It was also submitted that in any event the evidence of the interested witness, sarwan Lal, could not be relied upon as the same was not corroborated at the trial.
6. We have considered the submissions of the leaned counsel for the parties. We regret our inability to accepted the submissions of the learned counsel for the petitioners.
7. It is not disputed that Sarwan Lal was examined as PW1 at the trial. He testified to the effect that safe passage was provided by the petitioners to the unknown smugglers, who were crossing over to Bangladesh from the Indian side. He also stated that he had fired upon the known smugglers. Sarwan Lal deposed that the petitioners had hit him on his leg with rifle butt and also snatched his SLR and magazine.
8. PW-2 H.C. Raj Singh deposed that on March 11, 2002 Constable Sarwan Lal, at about 1640 hours, informed him that he had seen unknown persons with head load of goods moving from India towards Bangladesh from under the culvert near 149 M.P and he asked the petitioners, Constable Nashib Singh and Constable Mohd. Latif, as to why they were not performing their duties properly and were allowing smugglers to cross over to Bangladesh side. HC Raj Singh was also told by Constable Sarwan Lal that he had instructed them to keep a watch on the culvert. Later, after some time he (HC Raj Singh) heard sound of a gunfire. Immediately he proceeded towards the spot in the company HC Ram Sewak Prasad. He saw Constable Sarwan Lal crying and running towards BOP. Sarwan Lal told him about the unknown smugglers who had crossed over to Bangladesh side and he having fired at them. Sarwan lal also told him that Constable Nashib Singh and Constable Mohd. Latif had given beating to him after snatching his rifle.
9. PW-3 HC Ram Sewak Prasad also deposed to the same effect as was deposed by PW-2 HC Raj Singh.
10. PW-7 Dr. S.N. Sarkar testified to the injuries sustained by Constable Sarwan Lal.
11. Though it was not necessary to notice the statements of the aforesaid witnesses, we though it appropriate to scrutinise their statements in view of the allegations and contentions of the petitioners that there was no incriminating evidence on record to support the charges levelled against them and in any event the statement of PW-1 lacked corroboration. The evidence on record belies the allegations of the petitioners. This is more than clear from the statements of the witnesses noticed above. We say no more on this as it is well settled that the writ court will not substitute its opinion for that of the Summary Security Force Court. It was for the Summary Security Force Court to appreciate the evidence and take a view in the matter. The petitioners cannot call upon us to reappreciate the evidence. While sitting in writ jurisdiction we do not sit as a court of appeal. In the circumstances, we do not find any force in the submissions of the learned counsel for the petitioners. Accordingly, the contentions are hereby rejected. The writ petition, being devoid of merit, is hereby dismissed.