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2023 (4) TMI 1261 - SC - Indian LawsRejection of application questioning jurisdiction of the GSFC - permission to take out 30 Jerrycans of 40 litres each of Acetic Anhydride from India to Pakistan through border fencing gate - HELD THAT:- In the absence of direct and cogent evidence against the appellant, even if the GSFC was convinced of the appellant’s guilt, the punishment handed out was too harsh, paying heed that the appellant would, even then, be a first-time delinquent, and not a habitual offender. Arguendo, that there be some semblance of truth in the allegations, the punishment meted out, was disproportionate. On the alleged criminality, the undisputed and uncontroverted fact remains that the appellant was commanding the Force operating over a large area, including from where the Jerrycans allegedly moved from the Indian side to the Pakistani side. However, it is equally not in dispute that the actual manning of the area is by the subordinate personnel of the Force. In the present instance, the subordinate personnel have been adjudged guilty, indicating their active involvement. Being the persons on the spot, it was their primary responsibility to ensure that no crimes/offences/questionable incidents took place on their watch. Moreover, there is no direct evidence against the appellant. Article 226 of the Constitution is a succor to remedy injustice, and any limit on exercise of such power, is only self-imposed. Gainful reference can be made to, amongst others, A V Venkateswaran v Ramchand Sobhraj Wadhwani [1961 (4) TMI 83 - SUPREME COURT] and U P State Sugar Corporation Ltd. v Kamal Swaroop Tandon [2008 (1) TMI 942 - SUPREME COURT]. The High Courts, under the Constitutional scheme, are endowed with the ability to issue prerogative writs to safeguard rights of citizens. For exactly this reason, this Court has never laid down any strait-jacket principles that can be said to have “cribbed, cabined and confined” the extraordinary powers vested under Articles 226 or 227 of the Constitution. The Impugned Judgement is quashed and set aside - the conviction and sentence awarded by the GSFC dated 10.04.1996 is also set aside - Appeal allowed.
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