IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 545/2000 Reserved on:22.7.2008 Decided on: 19.8.2008 State of Himachal Pradesh. …Appellant. Versus Raj Pal Chauhan and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the Appellant : Mr. Rajinder Dogra, Additional Advocate General. For the Respondents : Mr. Ajay Kochhar, Advocate. Rajiv Sharma, J. The respondents were prosecuted in Corruption Case No. 30-S/7 of 1997 in the Court of Special Judge (Forests) Shimla under sections 420, 218 and 120-B of the Indian Penal Code, Sections 41 and 42 of the Indian Forest Act and section 5 (2) of the Prevention of Corruption Act and under rule 18/20 of the Himachal Pradesh Forest Produce Transit (Land Routes) Rules, 1978 for exporting 338 scants in excess than what were permitted on the basis of the export permit No.40/82-83 dated 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 5.5.1982. They were acquitted by the learned Special Judge (Forests) on 7.6.2000. The case of the prosecution in nutshell is that an FIR No. 19/84 was registered on 29.9.1984 under sections 379, 120-B of the Indian Penal Code, section 41 and 42 of the Indian Forest Act read with section 5 (2) of the Prevention of Corruption Act, 1947 at Police Station Enforcement South Zone, Shimla. The matter was investigated and the challan was put up against the accused. The prosecution examined as many as 31 witnesses besides placing on record large number of documents. The accused were examined under section 313 of the Code of Criminal Procedure. The trial court vide judgment dated 7.6.2000 acquitted the accused. The State has filed the present appeal against the judgment dated 7.6.2000. Mr. Rajinder Dogra, Additional Advocate General has strenuously argued that the prosecution has proved its case and the judgment dated 7.6.2000 is not sustainable in the eyes of law. Mr. Ajay Kochhar, Advocate appearing on behalf of the respondents has supported the judgment dated 7.6.2000. I have heard the learned counsel for the parties and perused the record carefully. The sole question requiring consideration by this Court is: whether the excess timber has been transported than mentioned in the permit Ex.PW-2/E and its extension Ex.PW-24/A-1? The case of the prosecution in nutshell is that permit No.40/82-83 Ex.PW-2/E was issued by the Divisional Forest Officer, Shimla in lieu of permit No. 142/81-82 Ex.PW-2/A dated 5.5.1982 valid up to 14.5.1982 in the name of Raj Pal Chauhan for 491 scants via Domehar to Shimla and outside Himachal 3 Pradesh and the copy of the permit had been endorsed to Station Master, Shogi and the accused had transported 829 scants from Railway Station, Shogi to Jagadhari vide railway receipts Ex.PW-11/A, Ex.PW-11/B and Ex.PW-11/E to Ex.PW-11/H and had exported 338 scants in excess. The sizes and the volumes of scants had not been mentioned in the railway receipts. There is no evidence that the volume of the timber booked through these railway receipts also exceeds. It is not in dispute that permit No. 40 Ex.PW-2/E had been issued in lieu of permit No. 142/81-82 Ex.PW-2/A. In permit No. 142 Ex.PW-2/A as well as in the accompanying list Ex.PW-2/B, the volume has been mentioned. Ex.PW-2/A was initially issued for 1253 scants equivalent to 2621.73 cft. Ex.PW-2/E is the extension of permit No. 142 Ex.PW-2/A and Ex.PW-24/A is the extension of permit No. 40, which was valid up to 10.9.1982. It was necessary for the prosecution to prove that not only the timber in quantity in excess was transported but the timber in cft. was transported in excess than permitted by this export permits. Sh. K.C. Nandwani, Vigilance Inspector in Railway Board had conducted the preliminary inquiry regarding alleged role of Gurcharan Singh. He has admitted in his cross-examination while appearing as PW-13 that in order to avoid uneven loading and to make the wagon to its full capacity, the timber is cut into pieces. It has come in his evidence that the timber was of different sizes and for that purpose, railway scants mean, pieces of timber irrespective of its size. The booking and loading of timber are two different things. It was never the case of the prosecution that the volume of the timber that has been exported was in excess of the volume mentioned in the permit and the timber list. PW-11 Subhash Chand had issued first two railway receipts Ex.PW-11/A and Ex.PW-11/B. He has proved the signatures of Gurcharan Singh on four 4 railway receipts and the signatures of Satish Kumar and Shanti Swarup on the forwarding notes. He has stated in his cross-examination that he has seen the work of timber loading at the railway station Shogi and had also admitted that in order to avoid uneven loading and to use the wagon to its full capacity, at times scants are cut into pieces and in that eventuality the cft. would remain the same, but the number of scants would increase. PW-11 has supported the version of PW-13 that to avoid uneven loading and to use the wagon to its full capacity, at times, scants are cut into pieces, however, the cft. remains the same. The next question to be determined by the Court is whether the booking of the timber on the basis of permit No. 142Ex.PW-1/C, which was not endorsed to the railway station Summer Hill amounted to the violation of the Himachal Pradesh Forest Produce Transit (Land Routes) Rules, 1978 or not. It is not disputed that permit No. 142 has been issued in the name of Raj Pal Chauhan. It is also not disputed that on the authority of permit No. 142 the timber was booked by Amrit Singh, K.L. Joshi by issuing 10 railway receipts for 1240 scants out of which railway receipts Ex.PW-10/A, Ex.PW-10/A-4, Ex.PW-10/A-5, Ex.PW21/A, Ex.PW- 10/A-1 to Ex.PW1-/A-3 Ex.PW-21/B, Ex.PW-10/A-6 and Ex.PW-23/A-9 have been issued by Amrit Singh and railway receipt Ex. PW-10/A-7 by M.L. Joshi, Assistant Station Master, Railway Station Summer Hill. These two persons admittedly have not been arrayed as accused in this case. Respondent Gurcharan Singh has not issued or booked scants from Summer Hill on the authority of permit No. 142. Respondent Shanti Swarup has not filled up any forwarding note or placed any indent for booking of the goods. Ten railway receipts had been issued by Amrit Singh, R.M. Dua and M.L. Joshi and forwarding notes of these railway 5 receipts had been filled up by someone else. PW-13 K.C. Nandwani and PW-22 Mr. Siddiqui had conducted the vigilance inquiry in the matter. The inquiry report is Ex.PW-13/B. The inquiry was conducted after seeking certain clarifications from the office of Chief Conservator of Forests. These witnesses PW-13 and PW-22 have deposed that they did not check the record of station and they have further admitted that restrictions of the State Government are known as civil restrictions for the movement of the forest produce and these are to be imposed after being circulated or notified through DRM’s office and they had not ascertained as to whether the restrictions were circulated to the railway staff. They have further admitted that if instructions are not notified, the railway staff is not bound to follow them. PW-11 has admitted in his cross-examination that he did not see any instructions regarding loading of the timber in a particular manner. PW-13 and PW-22 have specifically deposed that booking of the timber and issuance of railway receipts are two different things and if the forwarding note is accepted by Station Master or Assistant Station Master, the same is entered into priority register and fee is realized and demand is made to the DRM’s office on priority basis and Station Master and Assistant Station Master cannot cancel the wagons unless the same are cancelled by the parties themselves. It has not come in the evidence on which date and who has tendered the goods of permit No. 142 and which of the railway official accepted and entered it in the priority register. The Priority register has not been produced in the court. The person, who has accepted the goods for booking and entered the same in the priority register could be liable for the irregularity, but for want of non-production of the priority register, it could not be ascertained as to who has accepted the goods for permit No. 142. The railway receipts, as discussed 6 hereinabove, have not been issued by accused Gurcharan Singh nor the forwarding notes of these railway receipts have been filled in by respondent Raj Pal Chauhan and Shanti Swarup. In view of the aforesaid reasoning, there is no merit in this appeal and the same is dismissed. The bail/surety bonds of the respondents/accused are discharged. 19.8.2008 (Rajiv Sharma ), J. *awasthi*