DWARKA DASS v. UOI & ORS

W.P.(C) 11963/2009 & W.P.(C) 11983/2009 Page 1 of 11 $~J- * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : 13th November, 2025 Pronounced on : 17th December, 2025 + W.P.(C) 11963/2009 ABDUL RASHID SHEIKH .....Petitioner Through: Mr. Ankur Chibber & Mr. Anshuman Mehrotra, Advs.

versus

UNION OF INDIA AND ORS .....Respondents Through: Ms. Barkha Babbar and Mr. Sushmit Mishra, Advs. with Paramveer Singh Law Officer BSF.

+ W.P.(C) 11983/2009

DWARKA DASS .....Petitioner Through: Mr. Ankur Chibber, & Mr. Anshuman Mehrotra, Advs.

versus

UNION OF INDIA AND ORS .....Respondents Through: Ms. Barkha Babbar and Mr. Sushmit Mishra, Advs. with Paramveer Singh Law Officer BSF.

CORAM:

HON'BLE MR. JUSTICE DINESH MEHTA

HON'BLE MR. JUSTICE VIMAL KUMAR YADAV

JUDGMENT

Per DINESH MEHTA, J.

1. The petitioners, who were Constables in the Border Security Fo rce (hereinafter referred to as BSF) , have approached this Court raising grievance qua the order dated 01.04.2009 passed by the Director General, BSF, affirming the order on sentence „To be dismissed from Service‟ passed by Summary Security Force Court (hereinafter referred to as SSFC)

Digitally Signed

By:NAVEEN KUMAR

Signing Date:18.12.2025

16:52:12

Signature Not Verified

W.P.(C) 11963/2009 & W.P.(C) 11983/2009 Page 2 of 11 pursuant to the proceedings conducted between 05.07.2008 t o 08.07.2008, countersigned by DIG, SHQ, BSF Behrampore for petitioner Abdul Rashid Sheikh on 25.11.2008, so also for petitioner Dwarka Dass on 2 6.11.2008, whereby they have been held guilty of misconduct of facilitat ing the smugglers in smuggling out cattle from the border.

2. Narrated in a nutshell, the facts relevant for the present purposes are that when the petitioners were posted in the 123 Battalio n, BSF and deployed at BOP Kanchantar, BOP Peasbari and BOP Subhash, Anurag Saxena, Inspector General, informed that during the intervening ni ght of 19/20.02.2008, a large number of cattle had been smuggled out of India from BOP Peasbari, where three constables, namely, Dwarka Dass, Ranjith Singh KR and Abdul Rashid Sheikh were deployed at Naka n os. 2,3 & 4 respectively, between 12:00 a.m. to 06:00 a.m. on 19/20.02.2008, close to Gate no. 11 of the post.

3. Upon receiving the information, Subedar Umed Singh confronted these personnel who were deployed at the concerned posts at ab out 11:30 a.m., and out of three constables, one Ranjit Singh, who at the relevant time was posted at Naka No. 3, committed suicide using his service rifle.

4. On 21.02.2008, a Court of inquiry was instituted. On 24.02.2008 , the petitioners were heard by the Commandant in terms of Section 40 of the BSF Act, and upon a prima-facie finding of a case worth trial, orders for recording evidence were issued.

5. In furtherance of the decisions so taken, on 02.07.2008, the petitioners were charge-sheeted and trial was commenced by the SSFC. During the trial 18 witnesses appeared on behalf of the Prosecution namely, PW -1/Ex- Subedar Umed Singh, PW-2/Subedar Nirmal Singh, PW-3/HC(G) J.

Digitally Signed

By:NAVEEN KUMAR

Signing Date:18.12.2025

16:52:12

Signature Not Verified

W.P.(C) 11963/2009 & W.P.(C) 11983/2009 Page 3 of 11 Hazarika, PW-4/ SI Prem Singh, PW-5/ SH Haresh Seikh, PW-6/ HC Ram Sewak Sharma, PW-7/ Ct Mahadevi Swami, PW-8/HC Ajesh Kumar, PW- 9/HC Suresh Kumar Gill, PW-10/ Ct B K Shaw, PW-11/HC N K Garai , PW-12/CT Ganesh Thakur, PW-13/ Ct R Murgain, PW-14/S N Dubey, PW- 15/ADI/Min. Rajeev Ranjan, PW-16/R S Kanwar, PW-17/Insp. Anurag Saxena, and PW-18/ ASI/Min. Shakuntala.

6. The petitioners denied all the allegations and charges and produced Ct Shamsher Singh as defence witness. The SSFC concluded the trial on 08.07.2008 and held the petitioner/ Dwarka Dass guilty of t he charge I and II, whereas petitioner/ Abdul Rashid Sheikh was held guilty of charge II.

The charges framed against the petitioners are reproduced hereinfra:

“CHARGE-I (Accused No. 2)

BSF ACT, 1968 SECTION 46

COMMITING A CIVIL OFFENCE THAT IS TO SAY CRIMINAL MISCONDUCT FOR HAVING BEEN AS PUBLIC SERVANT IN POSSESSION OF PECUNIARY RESOURCES DISPROPORTIONATE TO HIS KNOWN SOURCE OF INCOME FOR WHICH HE CANNOT SATISFACTORILY ACCOUNT FOR AN OFFENCE SPECIFIED IN SECTION 13(1)(e) OF THE PREVENTION OF CORRUPTION ACT, 1988 PUNISHABLE UNDER SECTION 13(2) OF THE SAID ACT In that he.

while deployed at BOP Peasbari when verified his CBS account on 09 Apr’ 0 8 from SBI Farakka, was found to have excess money of Rs.

10,000/- (Rupees Ten Thousand) in his CBS accounts No.

11077476401, SBI Gurdaspur (Pb) and said amount is disproportionate to his known source of income which he could not satisfactorily account for.

CHARGE-II (Both Accused)

BSF ACT-1968, SECTION-40

AN ACT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OF THE FORCE In that they.

Digitally Signed

By:NAVEEN KUMAR

Signing Date:18.12.2025

16:52:12

Signature Not Verified

W.P.(C) 11963/2009 & W.P.(C) 11983/2009 Page 4 of 11

in the intervening night of 19/20 Feb 2008 while on Naka duty from 192400 hrs to 200600 hrs in AOR of BOP Peasbari deliberately allowed smugglers to smuggle out a large number of cattle heads (approx 40-50 Nos) to Bangladesh through IBB Fence Gate No. 11.”

7. On conclusion of the trial, the SSFC passed a sentence that both t he petitioners be dismissed from Service. The SSFC while giving its verdi ct dated 08.07.2008 took note of the past conduct of the petition ers, who had been awarded following punishments:

(a) Abdul Rashid:-

Within Last 12 Months Since Enrollment

Date of

punishm

ent

Section

of

Offence

Punishme

nt awarded

Date of

punishm

ent

Section

of

Offence

Punishment

awarded

01.7.96 19(a) 14 days RI in force

custody.

Nil 08.2.00 19(b) Fine equal to 14 days pay.

19.6.03 40 07 days RI in force

custody.

16.9.05 19(b) 07 days RI in force

custody.

(b) Dwarka Dass:-

Within Last 12 Months Since Enrollment

Date of

punishm

ent

Section

of

Offence

Punishme

nt awarded

Date of

punishm

ent

Section

of

Offence

Punishment

awarded

04.12.07 19(b) 14 days

pay fine

04.12.07 19(b) 14 days pay

fine.

8. The sentence dated 08.07.2008 awarded by SSFC was countersigned by the DIG, SHQ, BSF Behrampore on 25.11.2008 & 26.11.2008.

Thereafter, the petitioners filed a petition under Section 117 of the BSF Act before the Director General (DG), BSF challenging the sentence awarded by Digitally Signed By:NAVEEN KUMAR Signing Date:18.12.2025 16:52:12 Signature Not Verified

W.P.(C) 11963/2009 & W.P.(C) 11983/2009 Page 5 of 11 the SSFC. Said petition was dismissed vide order dated 01.04.2009.

9. Learned counsel for the petitioners submitted that the premis e for holding the petitioner guilty is essentially the testim ony of PW1-Umed Singh and PW2-Nirmal Singh, and if their statements are taken into account, the finding of misconduct, rather guilt, recorded against th e petitioner is wholly unsustainable.

10. He submitted that the SSFC has not considered their testimony in true perspective and has recorded the finding of guilt on the bas is of conjectures and surmises.

11. It was argued by the learned counsel for the petitioners that the important aspect of the matter is, that the Constable deployed at naka no. 3, Ranjit Singh, had committed suicide after being confronted about p assing of the cattle from gate no. 11, which is indicative of the fact that i t was Ranjit Singh who was responsible for or who had connived to facilita te smuggling.

He argued that the respondents have made the petitioners scapegoats, as they could not do anything against said Ranjit Singh, who was posted at naka no. 3.

12. Learned counsel for the petitioners argued that even if the evid ence that has come on record and the finding of SSFC is taken to b e correct, then also, what had transpired is, that there existed some hoof marks of the cattle between naka nos. 2 & 3, where the petitioner/Dwarka Dass (naka no. 2) and Ranjit Singh (naka no. 3) were posted.

13. He argued that simply by observing hoof marks, that too, after 12 :00 p.m. on the next date, it cannot be said with certitude tha t the cattle had passed between the period during which the petitioners were guarding the posts. He argued that the petitioners cannot be held guil ty of negligence or Digitally Signed By:NAVEEN KUMAR Signing Date:18.12.2025 16:52:12 Signature Not Verified

W.P.(C) 11963/2009 & W.P.(C) 11983/2009 Page 6 of 11 connivance in facilitating the smugglers merely on the basis of th is solitary piece of evidence, more particularly when their duty was over at 06: 00 a.m.

and thereafter other persons were guarding the nakas or posts.

14. It was vehemently argued by learned counsel for the petitioners th at a barbed fence is laid at the border between Bangladesh and Indi a, having iron gates at regular intervals and considering that the ho of marks were found between naka no. 2 and 4 up to gate no. 11, which had an i ron gate that remained closed with lock and the keys of which were a lways kept in the „Kote’ under the charge of Sub-Inspector Prem Singh, it cannot be believed that without the involvement or connivance of s aid SI Prem Singh who was in charge of the keys, the cattle could ever have crossed the border.

15. Inviting Court ‟s attention towards the testimony of Sub-inspector Prem Singh, PW-4 (at page no. 34), learned counsel pointed out that he had stated that at 08:30 a.m. on 20.02.2008, he found that t he seal on the lock placed at gate no. 11 was intact. He highlighted that the f inding recorded against the petitioners was untenable inasmuch as the petition ers‟ (Dwarka Dass and Abdul Rashid Sheikh) duty at naka no. 2 and naka n o.4, respectively was over at 06:00 a.m. He added that as a matter of fact Prem Singh who himself was guilty could not have been made a witne ss in their case.

16. He, in other words, argued that when up to 08:30 a.m., (when the duty changed), the seal at gate no. 11 was found intact, even if it is assumed that the petitioners were negligent or otherwise responsible f or allowing the cattle to pass in or around the area of naka no. 2, how could th e cattle pass through gate no. 11 from the barbed fence as long as gate was closed and seal remained intact.

Digitally Signed

By:NAVEEN KUMAR

Signing Date:18.12.2025

16:52:12

Signature Not Verified

W.P.(C) 11963/2009 & W.P.(C) 11983/2009 Page 7 of 11 17. Learned counsel submitted that custody of the keys at the „Kote’ was with Sub-Inspector Prem Singh, who had been made a prosecution witness, and consequently, he had shifted his guilt onto the petition ers. He argued that it is surprising to note that relatively higher ranked officer, Sub- Inspector Prem Singh, who should rather have been held guilty, h ad been “let go” with a minor penalty of censure, whereas the petitioners have been punished with an extreme penalty of dismissal.

18. Learned counsel for the petitioners while relying on the tes timony of PW-8/HC Ajesh Kumar, argued that Sub Inspector Prem Singh admitt edly used to handle the keys and opened the gates himself, had d irected said witness only to make register entries, thereby placed the entire responsibility for checking the lock and seal on him. Consequently, the petit ioners cannot be held liable for any connivance or even lapse, when they admittedly neither opened the gate nor were tasked with verifying the seal.

19. He further submitted that the testimony of PW-9/HC Suresh Kumar Gill clearly establishes that all gates were properly opened, clos ed, and sealed by him under the supervision of SI Prem Singh, with no catt le movement recorded in the day(s) preceding the incident.

20. Taking the Court through the order of the Disciplinary Autho rity, namely the DIG, BSF, dated 01.04.2009 learned counsel for the pe titioners argued that the same is clearly contrary to law and the Principles of Natural Justice inasmuch as the DG, BSF has cursorily recorded his satis faction regarding the inquiry conducted by SSFC, and has taken an extreme decision of dismissal from service, though the provision under which the respondent had proceeded was in relation to a minor penalty.

21. He however, fairly accepted the position that Hon‟ble the Supreme Digitally Signed By:NAVEEN KUMAR Signing Date:18.12.2025 16:52:12 Signature Not Verified

W.P.(C) 11963/2009 & W.P.(C) 11983/2009 Page 8 of 11 Court in the judgment rendered in Union of India and Another v. Dinesh Kumar, reported in (2010) 3 SCC 161 has held that as per Rule 99 and Rule 149 of the BSF Rules, the Summary Security Force Court (SSFC) is not required to furnish reasons during its adjudication process an d a declaration of the individual's guilt suffices, and also that, as per Sect ion 48 of the BSF Act, 1968 a major punishment like that of dismissal from serv ice can be awarded by SSFC in respect of offences committed by BSF personnel.

22. Per contra, learned counsel for the respondents, Ms. Barkha Babbar, submitted that the petitioners had conspired with the smu gglers and had facilitated smuggling of cattle, which is aptly proved by the t estimony of PW-4/Prem Singh and PW-16/RS Kanwar. She highlighted the relevant part of the testimony of PW-16 and pointed out that an entry of huge amounts of Rs. 10,000/- and Rs. 35,000/- was found in the account of t he petitioners Dwarka Dass and Abdul Rashid Sheikh, respectively. She pointed out that the petitioner-Abdul Rashid Sheikh had given an explanat ion that said sum was deposited by his brother-in-law, whereas petitioner - Dwarka D ass stated that the amount was given to him by Ct. Shamsher Singh.

23. She further submitted that upon an inquiry conducted from th e Airtel office through the Superintendent of Police, Malda, it was found th at a number of calls, including long-duration calls, had been made from Abdul Rashid Sheikh‟s telephone to mobile Nos. 9932841826 and 9933050548, which belonged to local residents.

24. She argued that the petitioner who hailed from another State an d therefore, could not have any occasion to talk to the local pe ople on these numbers, which belonged to smugglers.

25. With respect to Prem Singh, learned counsel for the respondent Digitally Signed By:NAVEEN KUMAR Signing Date:18.12.2025 16:52:12 Signature Not Verified

W.P.(C) 11963/2009 & W.P.(C) 11983/2009 Page 9 of 11 submitted that action was taken against Prem Singh as well, and he had been appropriately punished (censure).

26. Learned counsel for the petitioners, in rejoinder, argued that the SSFC had not followed the due procedure as prescribed in Rule 145 and 149 of the BSF Rules and, therefore, the proceedings have thus vitiated. He argued that since the proceedings are not in accordance with law, the conclusi on drawn by the SSFC and the impugned order passed by the DIG, BSF dated 08.07.2008 and 01.04.2009 respectively, are liable to be quashed.

27. Heard learned counsel for the parties and perused the record.

28. Before proceeding in the matter, we wish to reiterate that in disciplinary proceedings, more particularly, in the proceedings re lating to disciplined force like BSF, the strictness of proof cannot be equated with the level of strictness of proof required in a criminal trial; th e conclusion can be drawn on the basis of preponderance of evidence.

29. Though there exist certain flaws in the testimony of the wi tnesses as pointed out by the petitioners ‟ counsel, Mr. Ankur Chhibber, but the same do not constitute any major discrepancy so as to render the conclusion of the SSFC perverse or untenable in the eyes of law.

30. Regardless of the above, if we consider the testimony of PW-1, PW-2, PW-4/Prem Singh, PW-16 and other witnesses, it is apparent that cattle did cross from gate no. 11 through the area between naka nos. 2 & 3 an d the petitioners – Dwarka Dass and Abdul Rashid Sheikh being posted at naka no. 2 and 4, respectively were not supposed to merely guard th e post as explained by the respondents. If petitioners were deployed at a naka at the border and were not supposed to stand at a particular point, it was their duty to keep vigil over the area falling between both sides of naka n o. 2 and naka Digitally Signed By:NAVEEN KUMAR Signing Date:18.12.2025 16:52:12 Signature Not Verified

W.P.(C) 11963/2009 & W.P.(C) 11983/2009 Page 10 of 11 no. 4, where they were posted. Had they remained vigilant, in our view, 40 – 50 cattle could not have passed through said area. It cann ot be believed that such movement would go unnoticed.

31. The petitioners ‟ conduct, therefore, on the basis of the evidence appears to be that of negligent Constables, if not malafide.

32. If their negligence is considered in light of testimony of PW-16, who deposed that pursuant to an inquiry being conducted throu gh the SP, Malda, it has transpired that the petitioner/Abdul Rashid Sheikh h ad a number of telephonic conversations with two mobile numbers being 9932841826 and 9933050548, belonging to local residents alleged to be smugglers.

33. Moreso, the fact that an unaccounted sum of Rs. 10,000/- wa s found in the account of Dwarka Dass and a sum of Rs. 35,000/- was found in the account of petitioner-Abdul Rashid Sheikh, raises a doubt. Simil arly, petitioner-Abdul Rashid Sheikh‟ s explanation that his brother-in-law had deposited the said amount in his account, is difficult to believe.

34. On overall assessment of the evidence on record, we are of the view that petitioners‟ negligence if not connivance with the smugglers, is proved.

Looking to their past conduct, their dismissal does not warrant any interference.

35. We are of the view that discipline in forces like the BSF and CRPF operates on a markedly higher threshold. The view has been affirmed by Hon‟ble the Supreme Court in the case of Union of India vs. Ex. Constable Ram Karan, reported in 2022 (1) SCC 373 which makes it clear that what may be a major penalty ordinarily is statutorily treated as a mino r punishment in disciplined forces reflecting the legislature‟s int ent that grave or sensitive misconduct by personnel demands far stricter response.

Digitally Signed

By:NAVEEN KUMAR

Signing Date:18.12.2025

16:52:12

Signature Not Verified

W.P.(C) 11963/2009 & W.P.(C) 11983/2009 Page 11 of 11

36. Though the petitioners‟ counsel has argued that at 08:30 a.m. the seal of the gate was found intact as per the testimony of PW4-Prem Si ngh, the same, in our view, could have been an attempt by said Prem Singh to save his skin, who according to us, could not have been exonerated as has been done by the SSFC. According to us, but for involvement of said Prem Singh, the smuggling of the cattle could not have been possible.

37. In the absence of Prem Singh having been proceeded against appropriately, we are conscious that we ought not to record a fi nding. But we cannot leave the matter without making an observation. The obser vation so made shall not be treated as a finding against said Prem Singh, but we shall be failing in our duties if we do not express our conce rn about the manner in which said Prem Singh has been practically exonerated and punished with a minor penalty, that too of censure, when he was the in- charge of the keys being deployed at the relevant kote. However, since a period of 17 years has passed, we do not propose to issue any direction qua Prem Singh.

38. In view of the foregoing discussion, both the petitions are dismissed.

DINESH MEHTA

(JUDGE)

VIMAL KUMAR YADAV

(JUDGE)

DECEMBER 17, 2025/nk

Digitally Signed

By:NAVEEN KUMAR

Signing Date:18.12.2025

16:52:12

Signature Not Verified