TA 174 of 2012 (Arising out of SWP No. 1725 of 2001). Case: Ghulam Mustafa Samoon Vs Union of India. Armed Forces Tribunal
| Case Number | TA 174 of 2012 (Arising out of SWP No. 1725 of 2001) |
| Counsel | For Appellant: Party-in-Person and For Respondents: Mr. Gurpreet Singh, Sr. PC |
| Judges | Prakash Krishna, J. (Member (J)) and Lt. Gen. (Retd.) N.S. Brar, Member (Ad.) |
| Issue | Armed Forces Tribunal Act 2007 - Section 15; Army Act, 1950 - Sections 112, 112(b), 38(1), 69, 9; Indian Evidence Act, 1872 - Section 26; Official Secrets Act, 1923 - Sections 3(1)(C), 4 |
| Judgement Date | February 25, 2014 |
| Court | Armed Forces Tribunal |
Order:
(Regional Bench At Chandimandir)
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This writ petition filed in the Hon'ble High Court of Jammu and Kashmir at Srinagar is taken up as an appeal against the Summary General Court Martial (SGCM) under Section 15 of the Armed Forces Tribunal Act, 2007.
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The petitioner was tried by a SGCM on the following charges
First Charge" Army Act section 38(1)
When on active service, at field, on 10th December 1998 absented himself from Border Observation Post, Sidharwan (J & K) till apprehended by troops of 4 Raj Rifles at village Abdullian (J & K) on 21st October 1999.
"Second Charge" Army Act section 69
Committing a civil offence, that is to say, for a purpose prejudicial to the safety or interests of the State, communicating to military affairs of the Government, which might be directly or indirect useful to an enemy, contrary to Section 3(1)(C) of the Official Secret Act, 1923, in that he, at field, between 10 December 1998 and 21 Dec. 1999, for a purpose prejudicial to the safety or interests of the State, communicated to an officer of Pakistan Intelligence Unit, in Gurra Jail Sialkote, the following information relating to the Military affairs of the Government which might be directly or indirect useful to an enemy:-
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Location of 16 JAK LI and name of his Commanding Officer.
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Orbat of 19 Infantry Brigade and the name of the Brigade Commander.
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Location of Headquarters 26 Infantry Division.
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Name and appointment of officers and JCOs of 16 JAK LI.
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Organisation and Equipment of Infantry Battalion and Rifle Company.
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Location of 3 JAK LI Regimental Centre.
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Strength and weapon deployed at Sidharwan Post.
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Location of roads, bridges, railway station, power houses and obstacle System........
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He was found guilty of both the charges and sentenced to suffer rigorous imprisonment for ten years and to be dismissed from service.
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The trial and the sentence is challenged on the grounds that the SGCM was convened by the General Officer Commanding 26 Infantry Division who was not competent to do so under Section 112 of the Army Act as he did not have the powers to do so as he was not commanding forces in the field and the petitioner was not on active service. The petitioners plea under Army Rule 51 and 157 was rejected. It is then contended that the charges were not proved beyond reasonable doubt. The confessional statement said to have been made by the petitioner was not made and even if made was not admissible under Section 26 of the...
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