B.K. Sharma, J.@mdashBy this common Judgment, Writ Petition (C) Nos. 4146 of 2000 and 5199 of 2002 are proposed to be disposed of.
2. The petitioner was working as a Major in the Indian Army and posted at Aizawl as O.C. No. 4 Eastern Command IS Group. On 15th August, 1999, 224 bottles of Indian Made Foreign Liquor were seized by the excise officials of the Government of Mizoram at the Check-Post at Vairangate from the Unit Vehicle. Naik Pushpender Singh and Nk Naresh Kumar on board were arrested and produced before the Magistrate of 1st Class at Kolasib. A Court of Inquiry was convened on 18th August, 1999 by the authority for carrying out investigation. On perusal of the summary evidence recorded by the Court of Inquiry, General Officer Commanding, 57 Mountain Division, directed that the petitioner, namely, Major T.K. Chatterjee be tried by the Summary General Court Martial. Accordingly, Summary General Court Martial was convened. Proceedings of the Court Martial were held on 14th June, 2000 to 4th July, 2000. The Summary General Court Martial found the petitioner guilty of the offence of abatement of civil offence of transportation of liquor to the State of Mizoram in contravention of the provisions of Section 8 of the Mizoram Liquor Total Prohibition Act, 1995. On completion of the proceedings, the following penalty were imposed by the Court Martial (i) that petitioner be cashiered, (ii) suffer imprisonment for three months and (iii) to pay a fine of Rs. 5,000. The General Officer Commanding, Eastern Command while confirming the finding of the Court Martial commuted the sentence to -
(a) to forfeit three years past service for the purpose of promotion, and
(b) to be severely reprimanded.
3. The petitioner filed Writ Petition (C) No. 4146 of 2000 challenging the conviction and sentence imposed by the Summary General Court Martial. After commutation of the sentence by the General Officer Commanding, the petitioner filed the Writ Petition (C) No. 5199 of 2002 for quashing the order passed by the General Officer Commanding, Eastern Command and also for consequential direction for promotion to the post of Lt. Colonel.
4. The charge sheet drawn against the petitioner reads as follows :-
"CHARGE SHEET
The accused, IC-42417F Major T.K. Chatterjee, of No. 4 Detachment, Internal Security Group, Eastern Command attached to 57 Mountain Division Signal Regiment, is charged with -
Army Act, Section 69. - COMMITTING A CIVIL OFFENCE, THAT IS TO SAY, ABETMENT OF THE OFFENCE OF TRANSPORTING LIQUOR, SPECIFIED IN SECTION 7(a)(i) OF THE MIZORAM LIQUOR TOTAL PROHIBITION ACT, 1995, CONTRARY TO SECTION 8(1) OF THE SAID ACT, IN CONSEQUENCE OF WHICH ABETMENT SUCH OFFENCE WAS COMMITTED,
is that he,
at field on or about 12 Aug 99, conspired with No. 3990593P Nk Pushpender Singh of his unit to illegally transport liquor from Masimpur to Aizawl in the unit vehicle, the consequence of which 224 bottles of liquor as under, were illegally transported:-
(a) Old Monk Rum (750 ml) - 72 Bottles.
(b) Contessa Rum (750 ml) - 36 Bottles.
(c) Bagpiper Whisky (750 ml) - 67 Bottles.
(d) Old Tarem Whisky (750 ml) - 05 Bottles.
(e) Contessa Rum (750 ml) - 12 Bottles.
(f) Brandy Honey Bee (750 ml) - 01 Bottle
(g) Golden Chariot Whisky (750 ml) - 01 Bottle
(h) Solan No. 1 Whisky (750 ml) - 02 Bottles
(j) Comrade Rum (750 ml) - 16 Bottles
(k) Black Knight Whisky (750 ml) - 12 Bottles
Total 224 Bottles.
Place: Field Sd/-
(A.K. Kochhar)
Date : 21 April, 2000 Officiating Commanding Officer
To be tried by Summary General Court Martial
Place: Field Sd/-
Dated : 22 Apr 2000 (Arvind Sharma)
Major General
General Officer Commanding
57 Mountain Division.".
5. It would appear from the charge that the writ petitioner was indicated for commission of a civil offence, i.e., abetment of the offence of transporting liquor in contravention of the provision of Section 7(a)(i) of the Mizoram Liquor Total Prohibition Act, 1995. Consequent upon his conviction, he was sentenced to imprisonment stated hereinbefore. Section 7(a)(i) of the Act of 1995 provides that no person shall transport, import, export or possess liquor. Section 8(i) of the said Act of 1995 provides for punishment for contravention of the provision of Clause (a) of Section 7.
6. The respondent authority invoked jurisdiction for trial of the petitioner as provided in Section 69 of the Army Act, 1950. The provisions contained therein provide for punishment of any person subject to this Act who at any place in or beyond India commits any civil offence. The petitioner has been charged for committing the offence of transportation of liquor in contravention of the provisions of Section 7(a) of the Mizoram Liquor Total Prohibition Act, 1995 by way of abetment. Section 45 of the Act of 1995 provides for punishment of an abettor. It is, therefore, necessary to examine as to whether the petitioner was in any manner connected with the transportation of liquor seized from an Unit vehicle in custody of Nk Pushpender Singh and Nk Naresh Kumar, and whether the decision making process is in accordance with the law and the principles of natural justice.
7. Mr. K.N. Choudhry, learned senior counsel for the petitioner argued that the bottles of liquor were seized in contravention of the provisions of Sub-sections (4) and (5) of Section 100 of the Code of Criminal Procedure. It is argued that the concerned officer did not make any effort to procure the attendance of any independent witness while carrying the search of the vehicle. That apart, the offence report submitted by the officer to the Magistrate does not contain the name of the petitioner, and there is no mention of Exhibit-N, the certificate, purportedly issued by the writ petitioner. According to Shri Choudhury, the petitioner was in no way connected with the possession of liquor by two of his subordinates namely - Nk Pushpender Singh and Nk Naresh Kumar. Mr. Choudhury further submitted that the petitioner has been convicted by the Summary General Court Martial solely on the basis of statement of the co-accused which, according to the learned counsel, cannot be sustained in law.
8. The provisions in Sub-section (3) of Section 54 of the Act of 1995 provides that "save as otherwise as expressly provided in this Act, the provisions of the Code of Criminal Procedure, 1973 shall apply to the investigation and trial of offences against this Act and the rules made thereunder". The matter relating to seizure and arrest will obviously fall within the meaning of the word "investigation". Section 50 of the Act of 1995 provides for the power of entry, search, seizure and arrest. The provisions in Sections 50 and 51 of the Mizoram Act read with provisions of Section 100 of the Code of Criminal Procedure, 1973 clearly suggest that violation of the provisions of Sub-section (4) and Sub-section (5) of Section 100 of the Code of Criminal Procedure would vitiate the investigation. It may be mentioned here that the grievances raised by Shri Choudhury, learned senior counsel for the writ petitioner about violation of the provisions of Section 100 of the Code of Criminal Procedure have not been disputed by Shri B. Sarma, learned counsel for the respondent authorities both in his written as well as oral submission.
9. The seizure memo shows that the vehicle with the liquor bottles was escorted by Nk Pushpaner Singh and driven by Nk Kumar Yadav. There is obviously no mention of the name of the petitioner in this seizure memo. The seizure was effected on 15th August, 1999 and on the same day the officer concerned submitted a report to the Officer-in-Charge, Excise Station, Vairengate informing the Officer-in-Charge about the search and seizure made. In this report, it has been mentioned that the liquor were found in the Maruti Gypsy ML-01/2094 in control of the aforesaid two Army officials.
10. On the same day, the concerned officer, Sub-Inspector Excise submitted the offence report wherein the name of the writ petitioner, namely - Major T.K. Chatterjee appeared as one of the three accused sent up for trial. The name of the writ petitioner has been incorporated obviously on the basis of the statement made by the arrested two co-accused. No investigation was made by the Excise Officer to ascertain as to whether the writ petitioner was at all the league with them. The offence report reads as follows :-
"I submitted report of seizure and arrest to the OC Excise Station Vairangate and the same is registered under Sections 8(1) and 24 of the MLTP Act, 1995 vide Ex-VLT/IC E/99 of 15.8.1999 and I was endorsed to investigate the case. During the course of investigation I examined the two arrested Army personnels who jointly confessed that they procured and transported the seized IMFL in complying the verbal and written order of Maj TK Chatterjee OC No. 4 Det East Comd, Aizawl and the certificate duly certified by the said Major authorising A/No. 3990593 Nk Pushpender Singh to carry the said IMFL for the unit purpose and not for sale. However, on having physical checking of the seized IMFL, it is analysed that 5(five) bottles of Old Tavern Whisky of 750 ml and 67 (sixty seven) bottles of Bagpiper Whiskey of 750 ml are procured/purchased from local Bazar wine-shop and are not quantified for defence personal consumption. It is also confessed by the accused two army personnels, that the remaining bottles (other than the Old Tavern and Bagpiper Whiskey) are also procured not from an army issue/recognised C.S.D. and none of the army personnels accused of the offence could produce challan/cash memo/invoice etc. to prove that the seized liquor/IMFL are for unit consumption and procured from the C.S.D. concerned. In view of the non-availability of reliable documents required for transaction between the C.S.D. and unit, it is proved that the seized IMFL are not meant for army unit consumption but for sale/charging black money. Again they cannot produce import permit duly obtained from the excise authority Mizoram.
I, therefore, found prima facie case against the OC 4 Det East Comd Maj TK Chatterjee who is real responsible person for the commitment of the offence by issuing certificate without any support of the other required documents as stated earlier and against coard A.No. 3990593 Nk Pushpender Singh and A.No. 1099673L Nk Kumar Yadav both of 4 Det East Comd Aizawl u/s 8(1) of the MLTP Act 1995 for the violation of the provision of u/s 8(1) and also MLTP Act 1995."
11. The offence report indicate that the Excise Officer had interrogated the two arrested Army personnel, and they made confessional statement that they procured and transported the seized liquor in compliance with the verbal and written orders of Major TK Chatterjee, The report also make a mention of a certificate duly certified by the writ petitioner (Major TK Chatterjee) authorising Nk Pushpander Singh for carrying the said liquor for Unit purpose. But the certificate allegedly issued by the writ petitioner was not enclosed with the offence report. If the said certificate was an authority issued for the purpose of safe transportation of liquor, it would have been in possession of Nk. Pushpander Singh. The reasons for non-production of the same before the seizing officer by Nk. Pushpander Singh has not been assigned.
12. The certificate purportedly issued by the writ petitioner is without any date. It appears to have been issued in the month of August 1999. The certificate reads as follows :
"CERTIFICATE
No. 3990593P Nk Pushpender Singh of No. 4 Det East Comdt IS Gp c/o 613 Transportation Coy ASC (Jeep) c/o 99 APO is hereby authorised to carry the liquor for unit purpose, not to be sale in other person. He is a army person.
Sd/-
Station : c/o 99APO (TK Chatterjee)
Maj.
Dated: August 1999 OC.".
The writ petitioner denied to have issued the aforesaid certificate. This piece of paper on the face of it cannot be connected with the transportation of bottles of liquor seized on 15th August, 1999.
13. The offence report shows that out of 224 bottles, the excise officer found 5(five) bottles of Old Tavern Whisky and 67 (sixty-seven) bottles of Bagpiper Whiskey without any quantification for use by Army. The charge framed by the Commanding Officer (quoted in para-4 of this Judgment) indicates that the petitioner was charged for abetment for transportation of all the 224 bottles of liquor, but it does not describe the manner in which the abetment has been committed. There is also no mention of the certificate purportedly issued by the writ petitioner in the charge framed u/s 69 of the Army Act read with Section 8(1) of the Mizoram Act, 1995.
14. It would appear that the Summary General Court Martial primarily relied upon the statement of Nk Pusdhpander Singh (P.W. 1) and Nk Naresh Kumar (P.W. 2) the persons carrying the liquor in coming to the conclusion that the petitioner was guilty of abetment of the offence charged. These two persons made exculpatory confessional statement before the Excise Officer who had submitted the offence report. The learned Magistrate also by the order dated 17.8.1999 referred the matter to the Army Authority for disposal holding inter alia that the writ petitioner is guilty and the aforesaid two persons namely Nk Pushpander Singh and Nk Naresh Kumar are not guilty. This order dated 17.8.1999 passed by the learned Magistrate, First Class, Kolasib was premature insofar it relates to his observation regarding the aforesaid two persons. Therefore, the two persons who were carrying the liquor and from whose possession the bottles of liquor were seized were exempted from penal as well as disciplinary proceedings. On the face of it, their conduct in transporting liquor was in violation of the provisions of the Act of 1995 and there was no reason to exempt them before commencement of trial. Truth would have come out had they been tried by the learned Magistrate along with the writ petitioner. The co-accused were granted premature acquittal and the Army authority also did not proceed against them. As such, their evidence has to be weighed with great caution. The other witnesses, namely - P.W.s. 3, 4 and 5 were examined to establish that the petitioner was in touch with P.W. 1 from before and he had telephonic talk with P.W. 1 on two occasions even from Kolkata directing him to report at Masimpur with Army Vehicle.
15. It is evident that the petitioner maintained before the Summary General Court Martial that he had transported liquor on two occasions in the month of May and July for use by the Intelligence Wing of the Army. The petitioner, however, denied to have issued the certificate, Ext. ''N''. The absence of date in the certificate render the evidence of two approvers doubtful. The Summary General Court Martial however held the petitioner guilty.
16. After careful consideration, this Court is of the opinion that the decision of the Summary General Court Martial is based on the exculpatory statement of the two approvers who were found carrying bottles of liquor without authority. The charge drawn against the writ petitioner is also silent about the certificate allegedly issued by him. The hurried acquittal of the two approvers by the learned Magistrate despite bottles of liquor having been found in their possession and the premature observation recorded by him regarding the petitioner have misdirected subsequent proceedings. The decision of the Court Martial is based on the evidence of the two approvers without any corroboration from independent source as to the involvement of the writ petitioner save and except the undated certificate (denied by the writ petitioner) produced at a later stage. Therefore, doubt persists as to whether imposition of penalty would be permissible upon an officer of the rank of Major who has otherwise proved his excellence in service in dealing with counter insurgency operation in the Jammu and Kashmir and other parts of the country including the North East. The testimonials attached with the writ petitions indicate that the services rendered by the writ petitioner in difficult situations have been appreciated at different levels.
17. Mr. KN Choudhury, learned senior counsel relied upon the judgment of the Hon''ble Supreme Court in
18. In
19. In the case at hand, the Summary General Court Martial should have taken into consideration the fact that the two approvers were hurriedly acquitted by the learned Magistrate and that such acquittal was for all purposes intended to muster evidence against the writ petitioner. The order passed by the learned Magistrate on 17.5.1999 also indicate that before the trial commenced, he had arrived at the conclusion that both the approvers were innocent and that the writ petitioner was the actual offender. The influence of this observation by the learned Magistrate in the decision making process cannot be ruled out. Ext. N, the letter of authority allegedly issued by the writ petitioner could not be produced at the time of seizure. If the authority was issued for the purpose of carrying liquor by the two approvers, the same ought to have been in their possession while they were carrying the bottles of liquor. It would be pertinent to mention here that the offence report submitted by the concerned excise officer is totally silent about "Ext.-N". The writ petitioner has been held guilty of abatement of the charge of carrying bottles of liquor contrary to the provisions of the Mizoram Liquor Total Prohibition Act, 1995 in conspiracy with Nk Pushender Singh, one of the two approvers. The offence report indicate that both the approvers made confessional statements and despite that the learned Magistrate held them not guilty without making any effort to secure the attendance of the writ petitioner to stand trial. In this context, it can be held that the evidence of the two approvers who were set at liberty by the learned Magistrate before commencement of trial and not proceeded against by the authority cannot form the basis for conviction of the petitioner. A person can be held guilty of an offence of abatement by conspiracy only when he engages one or more or other person or persons in the conspiracy for committing the offence and that an act or illegal omission has been occasioned in pursuance of such conspiracy. In the absence of any act or illegal omission in pursuance of the conspiracy, the offence of abatement cannot be said to have been committed. The acquittal of the two persons allegedly engaged by the writ petitioner for commission of the offence of transportation of the bottles of liquor would have resulted in acquittal of the writ petitioner had he been tried by the criminal Court in view of the provisions in second limb of Section 107 and Explanation 5 of Section 108 of the Indian Penal Code.
20. It would, therefore, appear that the departmental proceedings suffer from the following vices : -
(i) The seizure was made in violation of the provisions of Section 100 of the Code of Criminal Procedure as the Excise Officials, before seizure of the bottles of liquor, did not make any attempt to procure the attendance of any witness.
(ii) The persons i.e. Nk Pushpender Singh and Nk Naresh Kumar did not submit the alleged certificate (Ext.-N) to the Excise Officers while the seizure was carried out.
(iii) No action was initiated against the two approvers who were allegedly engaged by the writ petitioner for commission of the offence.
(iv) The acquittal of the two approvers by the learned Magistrate on the very first day and omission on the part of the Army authorities to initiate any action against them has prejudiced the writ petitioner in the departmental proceedings.
(v) The evidence of the two approvers are not corroborated by any independent witness on material point.
21. Shri B. Sharma, learned counsel for the respondents argued that this is a case based on the evidence of two approvers and not a case without any evidence. According to Shri Sharma, this Court in exercise of its discretionary powers under Article 226 may not re-appreciate the evidence on record to interfere with the decision of the authority. There is no dispute with regard to this submission. The powers of judicial review is restricted to ensure fairness in the decision making process only. However, in a case where there is violation of procedural safeguard and the decision is based on evidence of two unduly privileged co-accused, the import thereof would be that it has been arrived at in complete negation of the principles of natural justice. In such a situation, the Court cannot but step in.
22. In the result, both the writ petitions are allowed. The penalties imposed upon by the respondent authority are hereby quashed. The petitioner shall be given the service benefits including consideration for promotion to the next higher grade.
