Deepa Sharma JUDGMENT
S. Ravindra Bhat, J.
1. The petitioner, in these proceedings under Article 226 of the Constitution challenges the order of the Chief of the Army Staff ("COAS") dated 10.01.2008 which upheld the findings and the sentence of the Summary Court Martial ("SCM"). The petitioner was held guilty of misappropriating government property, under Section 52(b) of the Army Act, 1954 ("the Act") and a penalty of two months rigorous imprisonment in military custody along with reduction to the ranks was imposed on him.
2. The petitioner was enrolled in the Army as a Sepoy Driver, Mechanical Transport (Dvr/MT) on 28.04.1994 and assigned to Corps E.M.E. He was held guilty for selling petrol belonging to the government at cheap rates to one Vivek Kumar, the owner of M/s. Harsh Medical Stores in Kherli Phatak, Kota. The respondent alleged that on 26.01.2007, at about 4:00 pm, the petitioner handed over five Pepsi bottles containing ten litres of petrol to Vivek Kumar and said that he would collect the money that evening. The shop owner informed Nk/ MP Ajit Singh Yadav of 18 Infantry Division Provost Unit about this incident. Nk/ MP Ajit Singh and Hav/MP Ashok Kumar Payra reached the area by 5:00 pm and hid near the store. They also gave four marked notes of ? 100/- each to the shop-owner. At around 7:00 pm, the petitioner came to the shop again. Upon signal given by Vivek Kumar they moved in and apprehended the petitioner. As soon as the petitioner saw them, he threw the marked notes from his hands. It was alleged that he pleaded for forgiveness and admitted his mistake before them.
3. A Court of Inquiry was convened in April for ascertaining and investigating the circumstances under which Akhalesh Kumar Ray was caught collecting money on 26.01.2007 by flying squad of 18 Infantry Division Provost Unit. The Court of Inquiry held that the petitioner was guilty. On 04.09.2007, the proceedings under Rule 22 of the Army Rules, 1954 were held by the Commanding Officer and the petitioner was charged under Section 52(b) of the Army Act, 1950 for dishonestly misappropriating property of the government. Summary of evidence was also recorded.
4. Subsequently, on 26.11.2007, a Summary Court Martial was constituted which was presided by Commanding Officer, Col. Bikramdeep Singh. The proceedings were concluded on 19.12.2007 and the petitioner was held guilty of misappropriating government property. The following penalties were imposed on the petitioner-
a) To be reduced to the ranks.
b) To suffer rigorous imprisonment for two months in military custody.
5. Aggrieved by the findings of the Summary Court Martial, the petitioner filed Post Confirmation Petition before the COAS under Section 164(2) of the Army Act. The petition was rejected and the sentence awarded by the Summary Court Martial was confirmed. Hence, the petitioner is before this Court challenging the findings of the SCM and the penalty imposed.
6. Learned counsel for the petitioner contends that there is no evidence to prove that firstly, the petrol was the property of the government and secondly, that the petitioner delivered the petrol to Vivek Kumar for wrongful gain. This is supported by the fact that the first Court of Inquiry, as averred by the petitioner, did not find anything adverse against the petitioner. The photos of the petrol bottles which were produced during the Court Martial were taken only on 27.11.2007, one day after trial commenced. Finger prints on these bottles were also not taken. The four marked hundred rupee currency notes allegedly thrown by the petitioner down too were not produced before the SCM. Further, the petitioner was not seen handing over petrol bottles to the Vivek Kumar. It is argued in addition by M........