Delhi High Court: A petition filed by the Additional Commissioner of Police (Security) (petitioner) challenging the order passed by the Central Administrative Tribunal whereby the Tribunal held that the acquittal of constable Dinesh Kumar (respondent) under Sections 20 and 29 of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) vide judgment dated 15-02-2002 cannot be held to be on ‘technical grounds’ but is substantially on merits of the case and in the circumstances it would not be proper for the Disciplinary Authority to proceed on identical facts and on the same charge so as to come to a different finding in the departmental proceedings. A division bench of V. Kameswar Rao and Anoop Kumar Mendiratta, JJ., held that the proceedings against the respondent on the same charge based upon the evidence cited in the criminal case shall not be permissible in law.
Background
Respondent 1 along with co-accused Sanjay Giri was apprehended for being in the possession of one Kg. of Charas during the checking of vehicles at Red Fort, Delhi. He was formally arrested and dismissed from service invoking Article 311(2)(b) of the Constitution for misconduct vide order dated July 1997. However, respondent 1 was acquitted vide judgment dated February 2002 in criminal proceedings extending the benefit of doubt, and an appeal was preferred before the Additional Commissioner of Police (Security), New Delhi whereby it was held that provision under Article 311(2)(b) of Constitution was not attracted in the case and it would be open to the Disciplinary Authority to proceed in the matter under Rule 12 of Delhi Police (Punishment and Appeal) Rules, 1980, if attracted.
The matter was examined under Rule 12 of Delhi Police (Punishment and Appeal) Rules, 1980 and it was observed that a criminal charge failed against respondent 1 on technical grounds. Aggrieved against the order passed by the Appellate Authority initiating disciplinary proceedings, respondent 1 preferred an original application before the Tribunal which was thereby allowed vide order 13-03-2023. Assailing this, the present petition was filed.
Issue
The issue for consideration is whether the disciplinary proceedings can be held against respondent No.1 on the same charge on identical facts in accordance with Rule 12 of Delhi Police (Punishment and Appeal) Rules, 1980 treating the acquittal of respondent No.1 vide judgment dated February 15, 2002 by learned ASJ, on ‘technical grounds’.
Observations and Analysis
The Court noted that in departmental proceedings, a delinquent employee may be held guilty based on the preponderance of probability, while in criminal proceedings conducted before the Court, the prosecution is required to prove its case beyond a reasonable doubt. As such, a judgment of acquittal passed in favour of the employee by giving the benefit of doubt, in criminal proceedings, per se is not binding in the departmental inquiry proceedings.
The Court further noted that the fulcrum of the criminal proceedings in the present case rests on the factum of recovery of Charas from the possession of co-accused Sanjay Giri while respondent 1 is alleged to be driving the said scooter. Respondent 1 stands charged with aid of Section 29 of NDPS Act which deals with abetment or conspiracy to commit an offense. The benefit of doubt and benefit of non-compliance of Section 50 of NDPS Act, was extended by the Trial Court acquitting the petitioner, because the sample of Charas forwarded for examination to CFSL was found to be 116.98 gms, though the sample obtained during the investigation was 100 gms.
The Court observed that the onus lies on the prosecution to prove that the sample of the contraband seized during investigation proceedings is the same which was forwarded to CFSL for examination and that there is no tampering of the same. Since no explanation was placed on record in the criminal proceedings, the same led to the acquittal of the accused.
The Court concluded that the proceedings against respondent 1 on the same charge based upon the evidence cited in the criminal case shall not be permissible in law. However, despite the acquittal, disciplinary proceedings can be initiated against respondent 1 about any other misconduct, if committed, except for the offense under Section 20/29 of the NDPS Act, in respect of which the judgment of acquittal stands passed in favour of respondent 1.
Thus, the Court upheld the impugned judgment and agreed with the findings of the Tribunal that the acquittal could not be considered on technical grounds and is to be substantially treated on the merits of the case.
[Additional Commissioner of Police Security v Dinesh Kumar, 2023 SCC OnLine Del 2189 decided on 17-04-2023]
Advocates who appeared in this case :
Mr. Naushad Ahmad Khan, ASC for the GNCTD;
Ms. Tanya Agarwal, Advocate for the Respondent.
