{"id":96387,"date":"2011-08-18T00:00:00","date_gmt":"2011-08-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-s-dabas-vs-uoi-on-18-august-2011"},"modified":"2017-06-25T21:58:59","modified_gmt":"2017-06-25T16:28:59","slug":"m-s-dabas-vs-uoi-on-18-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-s-dabas-vs-uoi-on-18-august-2011","title":{"rendered":"M.S.Dabas vs Uoi on 18 August, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
M.S.Dabas vs Uoi on 18 August, 2011<\/div>\n
Author: Pradeep Nandrajog<\/div>\n
*       IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n%                      Judgment Reserved On: 25th July, 2011\n                       Judgment Delivered On: 18th August, 2011\n\n+                           W.P.(C) 1199\/1998\n\n        M.S.DABAS                                 ..... Petitioner\n                 Through:         Mr.Anil Gautam, Advocate\n\n                                  versus\n\n        UOI                                      .....Respondent\n                       Through:   Mr.Romil Pathak, Advocate for\n                                  Dr.Ashwani Bhardwaj, Advocate\n                                  and     Mr.Bhupinder      Sharma,\n                                  Dy.Cmdt., BSF\n\n         CORAM:\n         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG\n         HON'BLE MR. JUSTICE SUNIL GAUR\n\n     1. Whether the Reporters of local papers may be allowed\n        to see the judgment?\n\n     2. To be referred to Reporter or not?\n     3. Whether the judgment should be reported in the\n        Digest?\nPRADEEP NANDRAJOG, J.\n<\/pre>\n
1.      Appointed as a constable with Border Security Force in
\nthe year 1976 and attached to the 55th Battalion, the petitioner
\nearned a promotion to the rank of Sub.Inspector (Clerk) in the
\nyear 1993.           Pursuant to secret information received in
\nDecember 1995 by SI Sunil Kumar who was working in the
\nVigilance Branch that the petitioner had secured recruitments
\nfor 3 persons, namely, Sucha Singh, Sunder Singh and Raj<\/p>\n
    W.P.(C) No.1199\/1998                                      Page 1 of 13<\/span>
\n Kumar in BSF in lieu of money received by him, a preliminary
\nenquiry was conducted by SI Sunil Kumar.\n<\/p>\n
2.    During the course of the preliminary enquiry apart from
\nthe petitioner, 6 persons named Sunder Singh, Sucha Singh,
\nRaj Kumar, Rajpal, Ct.Rajesh and Nk.Inder Pal Singh were
\nexamined.\n<\/p>\n
3.   Sunder Singh and Sucha Singh stated that the petitioner
\ngot them recruited in BSF for a consideration of `30,000\/- each
\nand Raj Kumar stated that the petitioner got him recruited for
\na consideration of `25,000\/- which was paid by his uncle Rajpal
\nwho likewise made a statement confirming what was said by
\nRaj Kumar.      Ct.Rajesh stated that he had introduced Sucha
\nSingh, Raj Kumar and Raj Pal to the petitioner who secured
\nemployment for Sucha Singh and Raj Kumar by taking a sum
\nof   `30,000\/-      and   `25,000\/-   respectively   from      them.
\nNk.Inderpal Singh stated that Sucha Singh was his wife\u201fs
\ncousin and he had introduced him to Ct.Rajesh, who in turn
\nintroduced Sucha Singh to the petitioner from whom petitioner
\ntook `30,000\/- for securing employment in BSF.\n<\/p>\n
4.   As per       the petitioner, a fact not denied         by     the
\nrespondents, the petitioner was taken into custody by the
\nvigilance branch in the morning of 11.01.1996 and remained in
\nthe custody of the vigilance branch all day throughout and was
\nconfined in the room of the vigilance branch during the
\nintervening night of 11th and 12th January, 1996. In the morning
\nof 12.1.1996 being produced before Additional DIG, Vigilance,
\nM.Zia-u-allah petitioner made a confessional statement Ex.S in<\/p>\n
 W.P.(C) No.1199\/1998                                       Page 2 of 13<\/span>
\n which he purportedly admitted having received `30,000\/- each
\nto secure employment for Sunder Singh and Sucha Singh and
\n`25,000\/- to secure employment for Raj Kumar.\n<\/p>\n
5.   Since incriminating evidence surfaced implicating the
\npetitioner, the commandant of the battalion to which the
\npetitioner was attached drew up a charge sheet and complying
\nwith Rule 45 B of the BSF Rule 1969 directed record of
\nevidence to be prepared. Deputy Commandant Wajid Ali was
\ndetailed as the Recording Officer for preparing the Record of
\nEvidence.\n<\/p>\n
6.   Sucha Singh, Sunder Singh, Raj Kumar, Raj Pal, Ct.Rajesh
\nand Nk.Inder Pal Singh were examined and made statements
\nidentical to the one they had made during preliminary inquiry
\nbefore Inspector Sunil Kumar, who also made a statement that
\non 12.1.1996 statement Ex.S was made by the petitioner
\nbefore the Additional DIG, M.Zia-u-allah in the presence of two
\nindependent persons, SI M.S.Bisht and Ct.Shyaji Ramina.\n<\/p>\n
7.   In compliance with Rule 48 of the BSF Rules 1969,
\npetitioner was given an opportunity to make a statement and
\nhe made the statement Ex.\u201eR\u201f, wherein he stated that on
\n11.01.1996 he was brought to the \u201eG\u201f (vigilance) department
\nby Inspector Sunil Kumar and other officers and was forced to
\nmake a statement, which statement he alleged had not been
\nproduced. He further stated that on 12.01.1996 he met M.Zia-
\nu-allah and made the statement Ex.\u201eS\u201f before him and that he
\ntold M.Zia-u-allah that he had paid a sum of `60,000\/- to<\/p>\n
 W.P.(C) No.1199\/1998                                 Page 3 of 13<\/span>
\n S.R.Singh in respect of the recruitment of Sucha Singh, Sunder
\nSingh and Raj Kumar.\n<\/p>\n
8.   Considering the record of evidence, a decision was taken
\nthat the petitioner be tried by a General Security Force Court
\nand a charge sheet was issued against the petitioner listing 3
\narticles of charges, which read as under:-\n<\/p>\n
                          “CHARGE SHEET<\/p>\n
     The accused No.760028975 ST\/CLK Mukhtiar Singh
\n     Dabas of 55 Bn. BSF attached to 25 Bn. BSF is charged
\n     with:-<\/p><\/blockquote>\n
     FIRST CHARGE
\n     BSF ACT
\n     SEC: 41 (e)  ACCEPTING    FOR   HIMSELF  A
\n                  GRATIFICATION AS A MOTIVE FOR
\n                  PROCURING    ENROLMENT   OF A
\n                  PERSON<\/p>\n
                        In that he,<\/p>\n
                        at New Delhi, in between March \u201f95
\n                        and Aug \u201f95, while working as SI\/CLK
\n                        in Training Dte at FHQ accepted a
\n                        sum of `30,000\/- (Rupees Thirty
\n                        Thousand only) from No.95455480
\n                        Rect\/Ct Suchcha Singh, a gratification
\n                        as a motive for procuring enrolment
\n                        of the said Rect\/Ct Suchcha Singh in
\n                        BSF.<\/p><\/blockquote>\n
     SECOND CHARGE
\n     BSF ACT
\n     SEC: 41 (e) ACCEPTING    FOR   HIMSELF  A
\n                 GRATIFICATION AS A MOTIVE FOR
\n                 PROCURING    ENROLMENT   OF A
\n                 PERSON<\/p>\n
 W.P.(C) No.1199\/1998                                   Page 4 of 13<\/span>
\n                         In that he,<\/p>\n
                        at New Delhi, during Aug. \u201f95 while
\n                        working as SI (Clerk) in Training Dte
\n                        at FHQ accepted a sum of `30,000\/-
\n                        (Rupees Thirty Thousand only) from
\n                        No.95455479 Rect\/Ct Sunder Singh a
\n                        gratification as a motive for procuring
\n                        enrolment of the said Ct. Sunder
\n                        Singh in BSF.<\/p><\/blockquote>\n
      THIRD CHARGE
\n      BSF ACT
\n      SEC: 41 (e)  ACCEPTING    FOR   HIMSELF  A
\n                   GRATIFICATION AS A MOTIVE FOR
\n                   PROCURING    ENROLMENT   OF A
\n                   PERSON<\/p>\n
                        In that he,<\/p>\n
                        at New Delhi, in between March 1995
\n                        and Sept. 1995 while working as SI
\n                        (Clerk) in Training Dte at FHQ
\n                        accepted a sum of `25,000\/- (Rupees
\n                        Twenty Five Thousand only) from Shri
\n                        Rajpal, resident of Nangal Dewat, a
\n                        gratification as a motive for procuring
\n                        enrolment       of       No.95455475
\n                        Rect\/Ct.Raj Kumar in BSF.”\n<\/p><\/blockquote>\n
9.    At the trial 13      witnesses were examined by           the
\nprosecution.\n<\/p>\n
10.   Sucha Singh PW-1, Ct.Rajesh PW-2, Nk.Inder Pal Singh
\nPW-3, Sunder Singh PW-4, Raj Kumar PW-5 and Rajpal PW-6,
\nturned hostile and did not support the case of the prosecution.
\nThey resiled from the statements made by them during inquiry
\nand at the Record of Evidence and stated that they were<\/p>\n
 W.P.(C) No.1199\/1998                                    Page 5 of 13<\/span>
\n forced to make the statements. On being questioned whether
\nthey had made any complaint to any authority of being forced
\nto make any statement, they admitted that they did not make
\nany such complaint.\n<\/p>\n
11.   Dy.Cmdt.Wajid Ali PW-7, deposed that he prepared the
\nRecord of Evidence and that no witness was at any time
\npressurized by him or any other officer to make a particular
\nstatement and that statements made by PW-1 to PW-6 were
\nrecorded in his presence during proceedings pertaining to
\nRecord of Evidence.\n<\/p>\n
12.   Sub.Insp.       Sunil      Kumar    PW-8,   deposed    that     during
\npreliminary inquiry conducted by him PW-1 to PW-6 had made
\nstatements      which       he    had    correctly    recorded   and      that
\nstatement      Ex.S      i.e.    the   confessional    statement     of    the
\npetitioner was voluntarily made by the petitioner before M.Zia-
\nu-allah.\n<\/p>\n
13.   On being cross-examined about the presence of the
\npetitioner in the G Department on 11.01.1996, he stated
\n(Quote): \u201eIt is correct that the accused was brought to my
\noffice at about 1000-1100 hrs on 11 Jan 1996 and was kept in
\n\u201eG\u201f office for the night. Myself and my staff and other
\nwitnesses and personnel connected with the case stayed for
\nthe night at \u201eG\u201f Dte. It is correct that accused was dispatched
\nto 25 Bn BSF Chhawla Camp in the evening of 12 Jan 96 (exact
\ntime I do not remember)….We had detained the accused for
\nthe night of 11th Jan 96 on the conception that he will not come
\nto the office on 12 Jan 96. I had apprehension that the accused<\/p>\n
  W.P.(C) No.1199\/1998                                              Page 6 of 13<\/span>
\n will either desert or approach somebody to save himself. He
\nwas detained for night with the permission and guidance of Sh.
\nZiaulla AD (G). I had no apprehension that the accused will run
\naway during the day of 11th Jan 96 from the \u201eG\u201f Dte because
\nmyself and my staff was present there and it was not possible
\nfor him to run away.\u201f<\/p>\n
14.   ASI\/Ciph     Randhir   Singh   PW-9,   deposed   that    the
\nstatement Ex.\u201eR\u201f (made by the petitioner during Record of
\nEvidence) was voluntarily made by the petitioner in his
\npresence. SI M.S.Bisht PW-10, deposed that the statement Ex.
\n\u201eS\u201f was voluntarily made by the petitioner in his presence.
\nAdditional DIG (Vigilance) M.Zia-u-allah PW-12, deposed that
\non 12.01.1996 the petitioner had voluntarily made the
\nstatement Ex.\u201eS\u201f before him.\n<\/p>\n
15.   The petitioner did not lead any evidence in defence. He
\nhowever submitted a written statement before the GFSC
\nwherein he denied having made any confession or having ever
\nreceived any money to secure employment in BSF. He stated
\ntherein that he was falsely implicated at the instance of
\nInsp.Sunil Kumar because he had not provided details of cases
\npending against one S.N.Marwah to Insp.Sunil Kumar.             He
\nstated that after being detained in the G department he was
\ntortured the entire night and was forced to make a statement
\nto Insp.Sunil Kumar, which was not to the satisfaction of
\nInsp.Sunil Kumar and therefore he was taken to the office of
\nM.Zia-u-allah and was forced to make the statement Ex.-S.\n<\/p>\n
 W.P.(C) No.1199\/1998                                   Page 7 of 13<\/span><\/p>\n
 16.   The GSFC returned a verdict of guilt qua all 3 charges
\nand   vide    sentence   order   dated   09.12.1996, levied    the
\nfollowing sentences upon the petitioner:- (i) forfeiture of ten
\nyears of service for the purpose of promotion; (ii) forfeiture of
\nten years of service for the purposes of increased pay and
\npension and (iii) severe reprimand.\n<\/p>\n
17.   The record of the case was forwarded to the Inspector
\nGeneral, BSF for the purposes of the confirmation of the
\nfinding and sentence of the GFSC in terms of Section 108 of
\nthe BSF Act. Vide order dated 04.12.1996 the Inspector
\nGeneral, BSF in exercise of his power under Section 113 of the
\nBSF Act, directed the GFSC to consider revising the sentence
\nof forfeiture of ten years of service for the purpose of
\npromotion as he was of the opinion that the said sentence was
\ntoo harsh. Vide order dated 09.12.1996 the GFSC modified the
\nsentence to that of forfeiture of two years and ten months of
\nservice for the purpose of promotion. The record of the case
\nwas again forwarded to the Inspector General for the purposes
\nof confirmation of the finding and sentence of the GFSC, which
\nwere confirmed vide order dated 01.01.1997.\n<\/p>\n
18.   Aggrieved by the finding and sentence awarded by the
\nGeneral Security Force Court which stood confirmed by the
\nInspector General, the petitioner preferred a petition under
\nSection 117(2) of BSF Act to the Directorate General BSF,
\nwhich petition was rejected vide order dated 31.07.1997.\n<\/p>\n
19.   The present writ petition accordingly lays a challenge to
\nthe conviction and sentence dated 09.12.1996 and the order<\/p>\n
 W.P.(C) No.1199\/1998                                   Page 8 of 13<\/span>
\n dated 31.07.1997 rejecting the statutory petition filed by the
\npetitioner.\n<\/p>\n
20.   From the narratives hereinabove noted it is apparent that
\nthe incriminating evidence would be petitioner\u201fs confessional
\nstatement Ex.-S recorded in the morning of 12th January 1996,
\nwhich petitioner admits to have made before Additional DIG
\n(Vigilance) M.Zia-u-allah, but claims the same to be extracted
\nas a result of being tortured the entire night when he was in
\nthe custody of Insp.Sunil Kumar.    We also have to take into
\naccount the fact that during Record of Evidence the petitioner
\nmade a statement Ex.-R in which he once against confessed to
\nhave received money to secure employment for Sucha Singh,
\nSunder Singh and Raj Kumar. Additionally, we have evidenced
\nthat PW-1 to PW-6, even at the stage of Record of Evidence
\nstood by the indictment and stated as told to them to
\nInsp.Sunil Kumar during preliminary inquiry, but at the trial
\nresiled from their statement.\n<\/p>\n
21.   As regards PW-1 to PW-6 resiling from their previous
\nstatements, it assumes importance to take note of the fact
\nthat it was their compulsion to do so for the reason if they had
\nstood by their earlier statements, Sucha Singh, Sunder Singh
\nand Raj Kumar would have lost their jobs as they would have
\nadmitted having paid bribe to secure employment. This has to
\nbe kept in view.\n<\/p>\n
22.   In the decision reported as 112 (2004) DLT 301 (DB)
\nAmar Singh Bhati Vs. UOI & Ors. with respect to the power of<\/p>\n
  W.P.(C) No.1199\/1998                                 Page 9 of 13<\/span>
\n this Court under Article 226 of the Constitution of India, it was
\nobserved:-\n<\/p>\n
      “21. We may state at this stage that we are conscious
\n      of our limited power of judicial review of such orders.
\n      We are not sitting as Appellate Authority over the
\n      findings of the GSFC or the Central Government
\n      deciding post confirmation petition\/appeal. However,
\n      as already pointed out above, even while doing this
\n      judicial review if the reasons are available in the
\n      findings recorded by the GSFC, the task of the Court is
\n      easier. The Court is required, in exercise of its power
\n      under Article 226 of the Constitution of India, to
\n      examine as to whether in the decision making process,
\n      principles of natural justice were complied with and
\n      further the order is not irrational, unreasonable or
\n      arbitrary and that it is not perverse, However, when
\n      there are no reasons in support of the finding recorded
\n      by the GSFC, it is difficult, nay, impossible, to
\n      undertake this exercise simply by looking into the
\n      order. One will have to look into the records for this
\n      purpose. It may be mentioned here that the case of the
\n      petitioner was, which was vehemently argued by
\n      learned Counsel for the petitioner, that the prosecution
\n      case was full of contradictions and in fact the material
\n      which was inadmissible in law was taken into
\n      consideration and if that material is excluded, it was a
\n      case of ‘no evidence\u201f.”\n<\/p><\/blockquote>\n
23.   Now, whether a confession is voluntary or the result of an
\ninducement or an undue pressure, is a question of fact. Thus,
\nour job would be to determine whether at the trial, the
\nquestion of fact to be decided by the Court was properly
\nconsidered       with      respect   to    the   relevant   facts    and
\ncircumstances           enwombing    the   confession   and   the     law
\napplicable.\n<\/p>\n
24.   The fact enwombing the confession Ex.-S was the
\npetitioner being in the custody of Insp.Sunil Kumar since the
\n W.P.(C) No.1199\/1998                                         Page 10 of 13<\/span>
\n morning of 11th January 1996 and being detained during the
\nnight and the confession being made the next morning on 12 th
\nJanuary 1996. We find that the law officer, in his advice to the
\nGSFC has rightly drawn the attention of the Court to the law
\nand the relevant facts. This is evident from the advice to the
\nCourt, which we quote as under:-\n<\/p>\n
      “In the instant case 2 different versions are before you
\n      where the prosecution witnesses have said that they
\n      were beaten up threatened and pressure was
\n      exercised on them at CGO complex and during RCE.
\n      Whereas it has been denied by Sub Sunil Kumar who
\n      recorded their statement at CGO Complex and
\n      Sh.Wajid Ali, Recording Officer before the court. You
\n      may take into account the functioning of \u201eG\u201f Dte of
\n      BSF and interest of the witnesses deposing before the
\n      Court. A mere assertion by the accused that he was
\n      threatened or tortured or inducement was offered to
\n      him can be accepted as true without more. However
\n      the length of time during which the accused was in
\n      custody must be taken into consideration while
\n      deciding voluntary nature of his confession statement.
\n      About it Sub.Sunil Kumar has explained why the
\n      accused was detained for that night at CGO Complex.
\n      If you feel after consideration all the attendant
\n      circumstances of the case that such confessional
\n      statement was not voluntary you must reject the same
\n      and should not act upon it being admissible. In case
\n      you are satisfied about the voluntary nature of such
\n      confession you can admit it and can act upon it also.”\n<\/p><\/blockquote>\n
25.   It is thus apparent that at the trial, all relevant facts
\nwhich had a bearing on whether the confession was voluntary
\nor not were brought on record and attention of the Court was
\ndrawn to the said facts. The Court returned a verdict of guilt
\nand since the verdict relates to a question of fact and having
\nnoted that there is no taint with respect to the ascertainment<\/p>\n
 W.P.(C) No.1199\/1998                                  Page 11 of 13<\/span>
\n of the said fact; highlighting once again that attention of the
\nCourt was drawn specifically to the fact that the petitioner was
\ndetained the previous night and that the same had to be
\nconsidered by the Court while deciding whether the confession
\nwas voluntary, it is our compulsion to hold that this Court
\ncannot sit over judgment over the decision of the General
\nSecurity Force Court.\n<\/p>\n
26.   As held in the decision reported as 1985 SCC (Cri) State
\nof U.P. Vs. N.K.Antony, if evidence of extra-judicial confession
\ncomes from the mouth of witnesses who are unbiased and not
\neven remotely inimical to the accused and in respect of whom
\nnothing is brought out which may tend to indicate that they
\nmay have a motive for attributing an untruthful statement to
\nthe accused, such extra-judicial confessions can be accepted
\nand can be the basis of a conviction and one need not search
\nfor corroboration.\n<\/p>\n
27.   That the petitioner never retraced the confession Ex.-S
\ntill the trial commenced is a fact not in dispute.            He never
\nwrote to any authority that he was tortured or forced to make
\na confession. Even at the Record of Evidence he reiterated the
\nconfession and never complained to anyone that his statement
\nEx.-R recorded during Record of Evidence was either incorrect
\nor he was forced to so state. It also assumes importance that
\nPW-1 to PW-6 never complained to any authority after Record
\nof Evidence was prepared that they were forced to make
\nstatements against the petitioner.         The Record of Evidence
\nwas    prepared         23.1.1996.   The   trial   of   the   petitioner
\ncommenced on 28.5.1996. Between 23.1.1996 till 28.5.1996
\n W.P.(C) No.1199\/1998                                         Page 12 of 13<\/span>
\n PW-1 to PW-6 had enough time to inform that they were
\ncompelled to make wrong statements at the Record of
\nEvidence.     It was their compulsion to retrace what they had
\nsaid earlier on for the reason Sucha Singh, Sunder Singh and
\nRaj Kumar may have lost their jobs if before the Court they
\nadmitted having secured employment by paying a bribe. We
\ntherefore conclude by holding that there is sufficient evidence
\nto sustain the verdict of guilt and within the parameters of
\njurisdiction of judicial review, not being required to sit in
\nappeal as an appellate court, nothing has been shown which
\nrequires us to grant relief to the petitioner and thus we dismiss
\nthe writ petition.\n<\/p>\n
28.   No costs.\n<\/p>\n
                             (PRADEEP NANDRAJOG)
\n                                    JUDGE<\/p>\n
                                 (SUNIL GAUR)
\n                                     JUDGE
\nAUGUST 18, 2011
\nmm\/rk<\/p>\n
 W.P.(C) No.1199\/1998                                  Page 13 of 13<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court M.S.Dabas vs Uoi on 18 August, 2011 Author: Pradeep Nandrajog * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: 25th July, 2011 Judgment Delivered On: 18th August, 2011 + W.P.(C) 1199\/1998 M.S.DABAS ….. Petitioner Through: Mr.Anil Gautam, Advocate versus UOI …..Respondent Through: Mr.Romil Pathak, Advocate for Dr.Ashwani […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-96387","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nM.S.Dabas vs Uoi on 18 August, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/m-s-dabas-vs-uoi-on-18-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.S.Dabas vs Uoi on 18 August, 2011 - 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