JUDGMENT [ENTITY], J.
1. The accused petitioner being convicted under [SECTION] of the [ACT] and sentenced to suffer R.I. for two months by the learned Chief Judicial Magistrate, West Tripura, Agartala in [CASE NUMBER] preferred an appeal before the learned Sessions Judge, West Tripura, Agartala. The said [CASE NUMBER] was dismissed by the judgment dated 8.8.2002. Being aggrieved, the instant criminal revision petition has been filed challenging the aforesaid judgment dated 6.7.01 passed by the learned Chief Judicial Magistrate, West Tripura and also the judgment dated 8.8.02 passed by the learned Sessions Judge, West Tripura, Agartala.
Heard Mr. [ENTITY], learned Counsel for the petitioner and Mr. [ENTITY], learned P.P. In-charge for the respondent.
2. The prosecution case, in brief, is that on 2.2.2001, at around 6.30 a.m., while the complainant, Sri [ENTITY], Forester being accompanied by other staff of the Forest Department was on circuit duty at Chakmaghat area, found the accused petitioner, namely, [ENTITY], proceeding towards Teliamura from Chakmaghat driving an auto rickshaw loaded with some sawn timber. The accused petitioner drove away the auto rickshaw at high speed without responding to his signal and suddenly it dashed against the vehicle of the complainant. The auto rickshaw was detained immediately by the complainant and his staff on the spot and on search they recovered some sawn gamair timber from the auto rickshaw. As the accused petitioner could not show any transit for carrying the timber, the complainant seized twelve pieces of gamair timber including auto rickshaw together with keys in presence of the witnesses by preparing a seizure list. The seized timber had no hammer mark of the Forest Department. An offence report was prepared in which it was stated that by transporting timber in an unauthorized manner, the accused petitioner has contravened the [ACT] and caused loss of Government royalty to the tune of Rs. 20,000/-approximately. It was stated in the offence report that the seized auto rickshaw was dealt with separately under the provision of [SECTION] of the [ACT]. Accordingly, the complainant launched prosecution against the accused petitioner for contravention of the provisions of [SECTION] and [SECTION] of the [ACT] and cognizance of offence was taken under [SECTION] of the said Act.
3. The accused petitioner was examined by the learned Chief Judicial Magistrate, West Tripura, Agartala under [SECTION] [ACT] on the basis of the offence report. The substance of the acquisition was explained to the accused petitioner to which he pleaded not guilty and claimed to stand trial. No witness was examined by the accused petitioner in his defence. The prosecution examined as many as three witnesses including the comlainant.
4. P.W. 1, Sri [ENTITY], who was posted at Teliamura DFPP as Forester reiterated the statements made in the offence report and testified that twelve pieces of gamair timber were recovered from the auto rickshaw of the accused petitioner and the same were seized in presence of the witnesses, namely, (1) [ENTITY], a local man (2) [ENTITY], Forester, (3) Sri [ENTITY], Forest Guard and (4) Sri [ENTITY], Forest Guard. The seizure list was exhibited as Exbt. 1. The seized 12 pieces of gamair timber have been marked as Exbt. M.O. series. In his cross-examination, the complainant P.W. 1 stated that there was movement of the people in the road at the time when he apprehended the accused petitioner and there were houses of some people nearby the place of occurrence i.e. at the place where the auto rickshaw along with the said gamair timber were seized. It was stated in his cross-examination that he did not obtain signature of the witnesses on the label fixed on the seized timber. It was further stated that he obtained signature of the accused petitioner on the seizure list, but the seizure list does not disclose that copy of the seizure list was supplied to the accused.
5. P.W. 2, Sri [ENTITY], Forester, corroborated the statement of P.W. 1 in regard to seizure of auto rickshaw and the seizure of 12 pieces of swan gamair timber. He identified his signature on the seizure list and Exhibit 1/1 as his signature. In his cross-examination, he also stated that he did not put his signature on the label fixed on the seized timber. He further stated that there was no special identification mark on the seized timber.
6. The other witness namely, P.W. 3, [ENTITY], Forest Guard, also corroborated the evidence of P.W. 1 and 2 in regard to seizure of the aforesaid gamair timber. He also identified his signature which was exhibited as Ext. 1 and 2 in the seizure list. This witness also in his cross-examination similarly stated that he did not put his signature on the label fixed on the seized timber and there was no special identification mark on the seized timber. P.W. 4, [ENTITY], Forest Guard, was tendered by the prosecution and the defence declined to cross-examine him.
The accused petitioner in his examination under [SECTION] [ACT] stated that evidences adduced against him are all false.
7. The learned Trial Court on the basis of the evidence on records came to conclusion that there was no reason to disbelieve the evidence of P.W. 1, 2 and 3 inasmuch as no material could be elicited from their cross-examination casting doubt on their credibility and no enmity between the accused and the complainant could be proved. Learned Trial Court further came to conclusion that it cannot be said that the accused petitioner has been falsely implicated out of previous enmity. The findings/conclusion of the learned Trial Court was not disturbed and interfered with by the lower appellate court and, accordingly, the judgment passed by the learned Trial Court convicting and sentencing the accused petitioner was upheld.
8. It is pertinent to note here that the auto rickshaw was intercepted by the Forest officials at 6.30 a.m. and they recovered from the said auto rickshaw 12 pieces of gamair timber which were seized and a seizure list was prepared in presence of some witnesses. Among four seizure witnesses, only one witness namely [ENTITY] was a member of local public and the rest three are Forest officials. The said local public Sri [ENTITY], although cited as an witness in the offence report, was not adduced. He is the only independent witness to the seizure of the aforesaid twelve pieces of gamair timber and he was the best reliable and trustworthy witness for the prosecution. But they have chosen not to examine him without showing any explanation.
9. According to the evidence of complain ant P.W. 1, the place of occurrence was situated at a place where there were houses and movements of people. It was not difficult for the complainant and his party to call them as witnesses at the time of seizure of timber and obtain their signatures on the seizure list. Moreover, it has been clearly deposed by the aforesaid P.Ws that they did not put signature on the label fixed on the seized timber and there was no special identification mark on the seized timber. That apart, it clearly reveals from the seizure list itself (Exbt. 1) that no endorsement is available as to furnishing of a copy of the aforesaid seizure list to the accused petitioner as required under the law. 10.
10. The size of the seized timber has been described in the seizure list as 2.25 cm. x 23 cm. x 02 cm. Each of the said timber would be, therefore, of the size of little larger than a match stick. No evidence has been led by the prosecution as to whether possession of such small size and the quantity of timber would attract contravention of any provision under the [ACT]. No evidence was led by the prosecution as to the value of the said seized timber and causing loss of royalty of Government to the tune of Rs. 20,000/-.
11. The prosecution has led evidence to the effect that the accused petitioner was the owner and driver of the vehicle (auto rickshaw), in which the aforesaid timbers were seized and the Forest Deptt. has dealt separately with the aforesaid auto rickshaw under [SECTION] of the [ACT]. It is not understood as to why the prosecution allowed the Department to deal with the aforesaid auto rickshaw in separate proceedings, which is normally not being done in such cases. The prosecution has not been able to show how it took up the seized auto rickshaw under the provisions of [SECTION] of the [ACT].
12. The prosecution has left a room for doubt in respect of proving its case by adducing independent witnesses, which were available at the place of occurrence as stated earlier. No endeavour was made by the prosecution to secure more independent witnesses to the seizure of the aforesaid timber and it has chosen only one witness from the locality and that too it has failed to examine him in the Trial Court. The very fact of seizure of the sawn timber has not been proved beyond reasonable doubt by adducing reliable and trustworthy independent witnesses. P.W. 1, 2 and 3 are all departmental witnesses and their evidence could not be accepted merely because there was no proof of any enmity between the accused petitioner and the aforesaid P.Ws.
13. The prosecution has further left an-other room for doubt by its own lapse by not obtaining the signature on the label fixed on the seized timber either of the aforesaid P.Ws. or of the accused, and without making any special identification mark on the seized timber. The Exbt. M.O. 1 series were produced before the Trial Court without any such special identification mark or any label with signature of the seizure witness thereon and they were simply exhibited. It was not, therefore, proved that the material exhibits are the same set of timbers alleged to have been seized from the possession of the accused petitioner.
14. It is not the rule that the prosecution must prove its case by adducing independent witness only and evidence of official/police personnel who seized certain articles/materials should not be believed. But it is the accepted principle that the prosecution whenever conducts search and seizure would call upon some independent and respectable people of the locality to witness the search and seizure. Situation would be different if no local person is willing to turn up or hostile to the police/officials and in that case, there would be no ground to disbelieve the evidence of the police/officials and to act upon their evidence. In this case, it is found that Forest officials did not make any attempt to take assistance of local people to witness the aforesaid seizure. There is no evidence on record that the local people were not willing to become witness or they were hostile to the officials at the time of conducting the search and seizure.
15. The Apex Court in the case of [PRECEDENT] as , held that before conducting a search the police officer concerned is required to call upon some independent and respectable people of the locality to witness the search and if no attempt is made by the police officer concerned to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the police officer, though not its admissibility. In the case of [PRECEDENT] as , the Apex Court also held that in absence of independent witnesses during seizure operations investigating officer's evidence need not always be disbelieved but it requires closer scrutiny.
Having considered the facts and circumstances of the case and the evidence on record, this Court is of considered opinion that the prosecution has left many shadows of doubt in conducting the case and it has failed to prove its case beyond any shadow of reasonable doubt. I consider that on the basis of such standard of evidence, no conviction and sentence could be recorded against the accused petitioner. The impugned conviction and sentence passed by the learned Trial Court and upheld by the learned Appellate Court below are liable to be interfered with and quashed. Accordingly, the same are quashed. This petition is allowed. The accused petitioner be set at liberty forthwith if his further detention is not required in connection with any other case.
16. Before parting with the record, I would simply point out that the concerned learned C.J.M., West Tripura District, Agartala, left the substance of accusation recorded by him under [SECTION] [ACT] unsigned and the same remained unnoticed by the learned Sessions Judge also, on which the defence, of course, raised no question.
Send down the L.C.R.