Commandant, 68, Bn. Bsf Gakulnagar Vs. Shri Arjun Das & Another  Insc
655 (16 October 2006)
Pasayat & Lokeshwar Singh Panta
out of SLP (CRL) No. 66 of 2006) ARIJIT PASAYAT, J.
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.
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 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.
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.
counsel for the appellant submitted that the order passed by the learned SDJM
has no sanction in law.
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.
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.
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.
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.
appeal is allowed to the extent indicated.