HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No. 706 of 2001. Reserved on: 25.11.2008. Decided on: 17.12.2008. State of H.P. ………Appellant. Versus Jia Lal and others ……Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Ms.Shubh Mahajan, Deputy Advocate General. For the respondents: Mr.Ajay Kochhar, Advocate. V.K. Ahuja, J: This is an appeal filed by the State of H.P. against the judgment of the court of learned Special Judge (Forests), Shimla, dated 31.8.2001, vide which the respondents were acquitted of the charge framed against them under Sections 420, 468, 471, 218, 120-B of the IPC, Section 5(2) (d) of the Prevention of Corruption Act 1947 and under Rules 11/20 and 18/20 of the H.P. Forest Produce Transit (Land Routes) Rules, 1978. Briefly stated the facts of the case are that during a checking conducted by the Vigilance Department of the Railway Board regarding booking and transportation of timber from Railway Station, Shoghi to stations outside the ________________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - State of Himachal Pradesh during the years 1981-83, it was found that in 50 cases, including the present case, the excess timber was exported from Railway Station, Shoghi. It was also observed that the timber was exported after the validity period of export permits and it was also exported on the basis of the export permits which were not addressed to the Station Master of Railway Station, Shoghi. Thereafter, a case under Section 379 and 120-B of the IPC, under Section 41-42 of Indian Forest Act and under Section 5(2) of the Prevention of Corruption Act came to be registered at Police Station, Enforcement, South Zone, Shimla. During the investigation of the case, it was found that respondent No.1, who was working as a private sale contractor, purchased, by way of sale of public auction, lot No.18/80-81, pertaining to Sarmoli and Summer Kot Forest Range under the Forest Division, Rohru and purchased the said lot in consideration of Rs.30,200/- as per the auction order dated March 1980, passed by the then Conservator of Forests, Shimla. He purchased 549 trees of separate varieties and deposited the consideration amount in the Government Treasury. He thereafter felled, sawed and converted the said trees into scants and waste wood. He filed an application before the Divisional Forest Officer, Rohru for export of 1905 nags of timber and 500 quintal fuel wood from Dhaloon to Yamuna Nagar. He thereafter, exported the said timber and fuel wood as per the export permit valid upto 15.12.1980. It was found on investigation that on the strength of the aforesaid export permit, respondent No.1 exported 1464 nags of timber, 200 nags of Hakri and 490 quintal waste wood through trucks to a firm at Yamuna Nagar and he exported 1731 nags of timber through the Railway Station, Shoghi in favour of a firm at Yamuna Nagar. It was found that in criminal conspiracy with Station Master and - 3 - Assistant Station Master, Railway Station Shoghi, respondent No.1 exported 1490 nags of timber in excess and that too after the expiry of the export permit from Railway Station Shoghi, to which Railway Station the said export permit was not endorsed. It was also alleged that the copy of the export permit granted by the DFO, Rohru was not endorsed to Station Master, Railway Station, Shoghi and, thus, it was alleged that respondent No.1 had exported timber in excess after the validity period of the export permit. The police took into possession the record and after recording the statements of the witnesses filed the challan before the learned trial Court, who framed the charges against respondent No.1, who was a private sale contractor, respondent No.2 who remained posted as Station Master, Railway Station, Shoghi, respondents No.3 and 4 who were posted as Assistant Station Masters during the relevant period at Railway Station, Shoghi and accordingly, the charges were framed against the respondents separately for distinct offences, as detailed above. The prosecution examined 58 witnesses to substantiate their case and on conclusion of the trial, the learned trial Court acquitted all the respondents of the charges framed against them. I have heard the learned counsel for the parties and have gone through the record of the case. I have also been taken through the statements of the relevant witnesses on whom the prosecution case depends. It is not disputed that respondent No.1 purchased lot No.18/80-81 consisting of 549 Deodar, Kail and Rai in different numbers in a public auction for a consideration of Rs.30,200/- from Sarmoli and Summer Kot Forest Range under Rohru Forest Division, vide order, dated March 1980. It is also not disputed that on 25.10.1980, respondent No.1 moved an application accompanied by timber list Ext.PW-35/A to the DFO, Rohru seeking permission - 4 - to export 1905 scants of timber and 500 quintals fuel wood. The said application was processed and the DFO, Rohru granted the export permit, dated 24.11.1980, valid up to 15.12.1980. The respondent No.1 was allowed to export 1905 scants of Deodar and Kail of the volume of 3239.63 cubic ft. and 500 quintal of waste wood from Dhaloon to Yamuna Nagar. The list in question has been proved in evidence from the testimony of PW-35 J.S. Chauhan, who was then posted as R.O., who stated that it was countersigned by him. However, in cross examination, he has admitted that a certificate had been given on the reverse of the marking list Ext.PW-35/A indicating that only those trees were felled, which were allowed by the Forest Department and no illicit felling was done from the Government forest and similar certificate was also given on the reverse of Ext.PW-35/B. It is also on record that on the strength of export permit Ext.PW-5/D, as per the rules, respondent No.1 was entitled to export the nags as per the export permit issued in his favour. The export permit was proved from the statement of PW-5 Goverdhan Dass, Incharge Forest Check Post, Dhalli during the year 1986. He had produced the export permit from the record. The evidence in this regard has been discussed by the learned trial Court in para 11 of its judgment. The prosecution has also proved that 1731 scants of timber were exported through railway receipts from Railway Station Shoghi in favour of one firm M/s Sabbarwal and Brothers and to prove them, the prosecution had examined Amarjit Singh, Leave Reserve Clerk of Station Master, Shoghi and the detailed evidence has been discussed in para 12 of its judgment by the learned trial court. However, the learned trial Court did not believe the evidence of the prosecution in full since all the challans do not bear the stamp of Forest Check Post of Dharampur or Parwanoo, but few of the challans bear - 5 - stamps of some Check Posts without any number, date and stamp of alleged Check Post. To prove the question that the timber was exported in excess the prosecution has placed reliance upon challans Ext.PW-9/A-1 to Ext.PW-9/A-22, taken into possession, produced by PW-9 Amrit Lal, who is one of the partners of the Firm M/s Sabbarwal Timber. The documents placed on record show that timber vide challans Ext.PW-9/A-1 to Ext.PW-9/A-22 was not exported through trucks upto Yamuna Nagar. The timber mentioned therein was transported upto Yamuna Nagar and the rest of the timber was exported upto Shoghi Railway Station only and thereafter the same was exported from Railway Station, Shoghi. The learned trial Court had discussed these documents in detail and the relevant evidence in paras 14 to 16 of its judgment and in regard to evidence of excess timber exported through this permit, the evidence has been fully discussed in para 21 and 22 of the judgment of the learned trial Court. PW-58 Joginder Singh was the Deputy Superintendent of Police, Enforcement Wing, who had partly investigated the case. He admitted in cross examination that neither he investigated the case on this aspect as to whether cubic feet of the timber allegedly transported increased nor any evidence was collected qua this aspect. In regard to the export of the timber through the railways, there is statement of PW-11 K.C. Nandwani, who has stated that in order to use the wagon to its full capacity and to avoid uneven loading, the scants some times are cut into pieces. To prove the fact that the timber was exported after the expiry of the export permit, the prosecution had examined PW-11 K.C. Nandwani, who had investigated the record of the Railway Station, Shoghi and other railway stations regarding irregularities committed by the railway staff in the export of the forest - 6 - produce out of Himachal Pradesh. He has admitted in cross examination that there are restrictions in regard to the movement of the restricted items, but these are required to be notified to the Railway Station through the Head Office and if these are not notified to the Railway Station by the Department, then the Station Master is not bound by such restrictions issued by the Central or the State Government. Nothing has been brought on record to show that any restrictions put by the State Government on the movement of the forest produce were sent to the Station Master, Shoghi through his Head Office and accordingly, he was bound to follow those instructions. There is no conclusion drawn by this Investigating Officer on the basis of the evidence on record that if the forwarding notes of the RRs have been accepted by the Station Master within the validity period or thereafter, unless and until the evidence was collected that these bookings were accepted by the Station Master after the validity period, the mere fact that these may have been actually exported after the expiry of the validity period, is not sufficient to hold that the timber was exported after the expiry of the permit. The duty of the forest contractor was to produce the timber within the validity period and it was for the prosecution to establish, in which they have failed, that the timber was produced after the expiry of the validity period of the export permit. He admitted that the scants are at times cut into pieces but the prosecution has not proved on record the quantity of the timber exported and has tried to lead evidence only in regard to prove the logs of timber exported. He admitted that the original report and its annexures prepared by him have not been shown to him today and he prepared the report alongwith its annexures at the instance of the police. - 7 - PW-44 M.A. Siddiqui, who was on deputation to the Railway Board and had worked as Investigating Inspector (Vigilance), had conducted the investigation in the case and had checked the record of the Railway Stations from 1981 to 1983. He stated that the timber was a restricted product from 1981 to December 1983 and was not to be booked unless supported by valid permit issued from the Forest Department. In the permit, number of scants, cubic feet and validity period of the export permit was mentioned. He admitted that no timber should have been booked, as per the clarification, beyond the validity period of the export permit, but he never stated that on the basis of the evidence collected by him, he came to the conclusion that the booking was done beyond the validity period of the permit. He also admitted that Station Masters are not bound by any clarifications or instructions not notified to the them through the Railway Board. He admitted that as per the procedure, the entries are firstly made in the priority register and registration fees is charged and then demand for supply of wagon is placed which is to be supplied by the Control Office on priority basis. He further stated that the supply of the wagon is not within the control of the Station Master. He also admitted that the validity of the permit is to be seen at the time of registration i.e. accepting the forwarding note. He further stated that it can be ascertained from the priority register as to when the forwarding note was accepted and entered in the priority register, but during the course of arguments, nothing was brought on record to show that this priority register was produced by the prosecution and it proved that the booking was done after the expiry date of the permit. He also stated about the procedure vide which, to avoid uneven loading and to use the wagon to its full capacity, the timbers are cut into pieces. He further stated that if the goods are - 8 - not declared restricted items, then it can be booked and sent from any place to anywhere and no permit is required. He also stated that the number of scants, cubic feet and validity mentioned in the export permit is not required to be got confirmed from the DFO Office by the Railway officials. He had himself concluded that there was no irregularity. He has further stated that it could not be ascertained from the RRs as to what was the size of timber. He did not investigate this aspect as to whether the cubic feet remained the same or decreased. He also stated that the FR and the forwarding note are not the conclusive proof regarding the volume of the timber booked and transported. I have referred to the statements of the witnesses, who were most material and two of them have investigated the case and drawn their conclusions and these statements were therefore, carefully perused by me. It is not necessary to discuss the whole evidence and only material evidence was required to be discussed. In a similar case, in regard to export of excess timber and beyond the validity period, a reference can be made to the decision of this Court given by Hon’ble Mr.Justice C.K. Thakker, the then Chief Justice of this High Court, then a Judge of Hon’ble Supreme Court, in Criminal Appeal No. 261 of 1997, titled State of H.P. v. Gian Singh Chauhan and another, decided on 12.1.2001. In that case, the Hon’ble Judge had avoided discussing the whole evidence and rather had reproduced many of the paras from the judgment of the learned trial Court. I deem it unnecessary to again reproduce the paras suffice to say that no material evidence has been pointed out by the learned Deputy Advocate General appearing for the State as to from which evidence wrong conclusions were drawn or which material evidence was not discussed by the learned trial Court and accordingly, a brief reference has been made to the - 9 - material evidence produced by the prosecution, which even does not substantiate the case of the prosecution since the investigating officers themselves have not been able to draw any conclusion in regard to the export of excess timber beyond the date of expiry of the export permit. The learned trial Court had discussed the evidence in detail under various points and I find no reason to disagree with the conclusion arrived at by the learned trial Court and to come to a different conclusion on the basis of the evidence produced by the prosecution and referred to by the learned trial Court. In view of the above discussion, it is clear that nothing could be pointed out during the course of arguments to hold that some material irregularity or illegality has been committed by the learned trial Court at the time of referring to the evidence or discussing it and as such, I find no merit in the appeal filed by the State of Himachal Pradesh and, therefore, the same is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. December 17, 2008 (V.K. Ahuja), (TILAK) Judge.