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2014 DIGILAW 378 (TRI)

Mihir Kanti Choudhury v. Union of India

2014-11-13

DEEPAK GUPTA, U.B.SAHA

body2014
JUDGMENT Deepak Gupta, CJ. 1. Briefly stated, the facts of the case are that the petitioner was a Lance Nayak serving in the Border Security Force (BSF). He has challenged the orders whereby he has been convicted for having committed an offence punishable under section 30(d) of the BSF Act and dismissed from service. He has also challenged the appellate order whereby his appeal has been rejected. The allegations against the petitioner are that he purchased one stolen generator set from his colleague constable Maquebul Hussain which he kept in the house of his brother at Ramnagar Road No. 4, Agartala. 2. Sri S.M. Chakraborty, learned Senior Counsel appearing for the petitioner, submits that initially the charge was levelled against the petitioner under section 32 of the BSF Act which relates to misappropriation or criminal breach of trust in respect of property entrusted in the hands of the employee. Admittedly this section does not apply in the present case because the petitioner was never entrusted with the Honda generator set and he is alleged to have committed an offence punishable under section30(d) which deals with a situation where an employee of the BSF dishonestly receives or retains any stolen property knowing or having reason to believe that the property is stolen. Sri Chakraborty submits that the SSFC was constituted only to try the petitioner under section 32 and no trial under section 30was held. He submits that even the first order of dismissal passed in the year 1995 showed that the petitioner had been convicted under section 32 and it was only in the year 1996 that the order was modified and the conviction was made under section 30 of the Act. 3. We have gone through the complete record and find that though initially the accused was charged with having committed an offence under section 32, at the stage of framing charge the same was amended and on 11-10-1995 the accused was charged under section 30(d) for dishonestly receiving stolen property belonging to the government. The accused when charged with the offence admitted his guilt and prayed that he may be given one opportunity and would not repeat such type of offence. He has not been convicted solely on the basis of the admission of guilt but other evidence has been recorded which shows that constable Maquebul Hussain had stolen the generator set. The accused when charged with the offence admitted his guilt and prayed that he may be given one opportunity and would not repeat such type of offence. He has not been convicted solely on the basis of the admission of guilt but other evidence has been recorded which shows that constable Maquebul Hussain had stolen the generator set. PW-1 states that the investigation in the matter was conducted and Maquebul Hussain, the main accused, was interrogated and during investigation it was felt that Maquebul Hussain may have stolen the generator set but he denied the same. However, when the house of Maquebul Hussain was searched, some other stolen items including one secondary battery of the generator set were recovered. Again he was interrogated and this time he confessed that he had stolen the generator set along with the battery and he had sold the generator set to the present petitioner Mihir Kanti Choudhury for a sum of Rs. 6,000/- out of which he had been paid Rs. 3,000/-. The officials were also informed that the generator was kept in the house of the brother of the petitioner. Thereafter, the officials of the BSF went to the house of the petitioner's brother at Ramnagar Road No. 4 in Agartala. There the petitioner admitted that the generator was with him and came back with one steel box in which the generator had been kept. 4. The fact that the generator had been recovered from the house of the brother of the petitioner is not denied by him also. His main defence appears to be that he was not aware that it was stolen property and in this regard Sri S.M. Chakraborty, learned Senior Counsel, has made reference to the statement of prosecution witness No. 5 Maquebul Hussain, the other co-accused, who has stated that he approached the petitioner as to whether he wanted to purchase a generator set on 02-09-1995. Thereafter, the petitioner asked him the cost and though Maquebul Hussain stated the cost to be Rs. 8,000/-, the petitioner only agreed to pay Rs. 6,000/-. On the asking of the petitioner, Maquebul Hussain informed him that he would be procuring the generator from some civil source. From the statement of this witness, it is apparent that the petitioner himself doubted from where the generator could be procured at such a cheap price. 8,000/-, the petitioner only agreed to pay Rs. 6,000/-. On the asking of the petitioner, Maquebul Hussain informed him that he would be procuring the generator from some civil source. From the statement of this witness, it is apparent that the petitioner himself doubted from where the generator could be procured at such a cheap price. The witness further states that the petitioner told him to deliver the generator set at the house of his elder brother. Next day on 03-09-1995, the petitioner came to the house of Maquebul Hussain at 6 a.m. and then the generator which was kept in a steel box was taken out and thereafter, the generator was taken to the house of the brother of the petitioner where the petitioner paid Rs. 3,000/- to the witness and agreed to pay him Rs. 3,000/- at a later stage. This witness also states that when the petitioner asked him for the papers of the generator set, the witness told him that the generator set cost Rs. 14,000/- in the market and the deal has been concluded for only Rs. 6,000/- and, therefore, he could not provide any documents. In our view, this by itself should have made the petitioner suspicious as to from where Maquebul Hussain had procured the generator. The statement of the witnesses coupled with the confessional statement of the petitioner leave no manner of doubt that he knew that the generator was stolen and he willingly purchased the same. Therefore, he was rightly convicted under section 30 of the Act. Merely because initially the Security Force Court was constituted under section 32 will not make the proceedings illegal because at the time of charge, the charge was duly amended. 5. We, therefore, find no merit in the petition which is accordingly rejected.