IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 670/2000 Reserved on:29.7.2008 Decided on: 18.8.2008 State of Himachal Pradesh. …Appellant. Versus Devi Singh Verma 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 with Mr. Vikas Rathore, Deputy Advocate General. For the Respondents : Mr. Vinay Thakur, Advocate for respondent No.1. Mr. Ajay Kochhar, Advocate for respondents No.2 to 4 Ms. Yogita Dutta, Advocate for respondent No.5. Rajiv Sharma, J. The accused were prosecuted in Corruption Case No. 3-S/7 of 1996 in the Court of Special Judge (Forests) Shimla under sections 379, 420, 218, 120-B of the Indian Penal Code, Rules 11/20 and 18/20 of the Himachal Pradesh Forest Produce Transit (Land Routes) Rules, 1978 and section 5 (2) of the Prevention of Corruption Act and were acquitted by the learned Special Judge (Forest) on 30.6.2000. 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 The case of the prosecution in nutshell is that the accused and deceased R.M. Dua and Moti Ram hatched criminal conspiracy and in furtherance of such conspiracy, 195 scants were exported in excess after the expiry of the permit and without mentioning the permit number on one of the railway receipts issued by Amrit Singh accused. Accused Amrit Singh and R.M. Dua (now deceased) were found to have abused their position as public servant and as such prepared wrong and incorrect record in order to cause wrongful loss to the state and wrongful gain to Devi Singh and his co-accused and in furtherance of criminal conspiracy, the accused have transported excess timber on the authority of permit No. 123 and 124 after the expiry of the permits and without mentioning the permit number on one of the railway receipts. The statements of the witnesses were recorded under section 161 of the Code of Criminal Procedure. The matter was investigated. The prosecution has examined as many as 40 witnesses to prove its case. The accused were examined under section 313 of the Code of Criminal Procedure. The accused were acquitted by the learned trial court on 30.6.2000. Mr. Rajinder Dogra, Additional Advocate General has strenuously argued that the prosecution has proved its case and the judgment dated 30.6.2000 is not sustainable in the eyes of law. Mr. Vinay Thakur, Mr. Ajay Kochhar and Ms. Yogita Dutta, Advocates appearing on behalf of the accused have supported the judgment dated 30.6.2000. I have heard the learned counsel for the parties and perused the record carefully. The pivotal issues to be decided in this appeal raised by the Additional Advocate General are: whether the timber has been exported by the accused through railway receipts within the duration of permits No. 3 123 and 124 and booking of the timber has been done than mentioned in the permit numbers and lastly whether the booking and transportation of excess timber was carried out than allowed in the permits No. 123 and 124. Permit No. 123 was issued on 23.6.1981 and was valid upto 5.7.1981. The railway receipts Ex.PW-40/A is dated 30.6.1981 for 323 scants and other railway receipt Ex.PW-40/C for 220 scants which was issued on 2.7.1981. It is thus evident that the timber against the receipts had been issued within the validity of Ex.PW-7/B which was valid upto 5.7.1981. There was no irregularity in exporting 220 scants on the basis of Ex.PW-7/D. Similarly, it is evident from receipts Ex.PW-40/D to Ex.PW- 40/M and Ex.PW-22/D of permit No. 124 that the same have been issued between 1.7.1981 to 10.7.1981 i.e. well within the validity of the export permit No. 124. The further case of the prosecution was that timber of permit No. 123 had been exported vide railway receipts No.528281, 528292 and 528287 on expiry date of permit. The prosecution had not placed these railway receipts on the record nor has the prosecution proved that the timber of permit No. 123 was exported through railway receipts on the basis of these permits since all the 13 railway receipts, which had been relied upon by the prosecution, had been issued within the validity period of export permits No. 123 and 124. In one of the railway receipts No. 528227 Ex.PW-40/F dated 7.7.1981 for 196 scants from Summer Hill to Ahamdgarh booked in the name of Devi Singh Verma, permit number has not been mentioned. Sh. K.C. Nandwani (PW-12) and M.A. Siddiqui (PW-2) had conducted the vigilance inquiry with regard to irregularities committed by the railway staff Summer Hill by booking timber at the railway station. They had submitted report Ex.PW-12/A alongwith Annexures of irregularity statement Ex.PW-12/B to Ex.PW-12/D to the Director Vigilance. They have 4 mentioned in this report certain irregularities in booking of the timber at the railway station and two other railway stations, Shogi and Dharampur. During the course, they had sought certain clarifications from the office of the Chief Conservator of Forests, Shimla. It was only on the basis of these instructions/guidelines, they had detected irregularities in booking of the timber at the aforesaid railway stations. These witnesses have stated that civil restrictions are imposed on the railway staff when these are circulated to them through Head Office and if the same are not notified, the staff is not bound by these restrictions. It has also come in the evidence that the railway receipt is issued after the wagon is loaded by the consignor and the wagons are supplied from the D.R.M’s office on priority basis and the Station Master has no authority to cancel the wagon unless cancelled by the parties. It has come in the evidence that the priority register was not checked and the record of the destination station was also not checked. Amrit Singh was not charged for committing any irregularity vide railway receipt Ex.PW-40/F of permit No.121 but has been charged for issuing railway receipts of permits No. 123 and 124. It is evident from the inquiry report Ex.PW-12/A alongwith irregularity statement contained in Annexure PW-12/B to Ex.PW-12/D that no irregularity has been mentioned on the railway receipt No. 528227 i.e. Ex.PW-40/B. M.A. Siddiqui (PW-2) and K.C. Nandwani (PW-12) did not find any irregularity for not mentioning the permit number on the railway receipt. The prosecution has failed to prove that the forwarding note of the railway receipt has been accepted by Amrit Singh accused because the same could be ascertained from the priority register as to who has accepted the forwarding note and on which date and the priority register was neither taken into possession nor has been relied upon by the prosecution. The 5 prosecution has admitted that if clarifications or instructions are issued, the same are required to be notified to the railway staff through railway department. The next point which requires consideration by this Court is: whether the prosecution had proved that the accused had exported excess volume of the timber or not? PW-12 K.C. Nandwani has admitted in his cross-examination that in order to avoid uneven loading and in order to keep the wagon full, sometimes scants are cut into pieces. It has also come in his examination in chief that he had prepared report Ex.PW-12/A alongwith irregularity statement and according to the irregularity statement, excess loading vide Ex.PW-12/B, 177 scants were exported in excess against permit No. 121/81-82 dated 22.6.1981 valid upto 8.7.1981 and similarly vide permit No. 130/81-82, 16 No. of scants were loaded in excess. PW-2 has stated in his examination-in-chief that the report marked PW-2/A exhibited as PW/A, irregularity statement marked PW-2/B exhibited as PW/B and as per irregularity statement, permit No. 121/81-82 was for 1893 scants whereas 2070 scants had been booked. Similarly, as per irregularity statement of permit No. 130/81-82 marked as PW-2/C exhibited as PW-2/C and irregularity statements were prepared by Sh. K.C. Nandwani. It is evident from the irregularity statement i.e. Ex.PW- 12/B, Ex.PW-12/C and Ex.PW-12/D that all these irregularities of transportation and excess timber relate to permit No. 121/81-82. The accused had been charged for transportation of excess number of scants on the authority of permit Nos. 123 and 124 and had not committed any irregularity in booking of the scants qua permits No. 121 and 130. The prosecution own evidence establishes that the timber transported through railway receipts were not excess to the timber permitted to be exported against permits No. 123 and 124. PW-2 M.A. Siddiqui and PW-12 K.C. 6 Nandwani, who were Vigilance Inspectors in the Vigilance Board of the Railway had conducted the vigilance inquiry regarding the alleged role of the Station Masters have admitted in their cross-examination that when the timber is loaded in the wagon, sometimes, the scants are cut into pieces to avoid uneven loading and every piece of timber irrespective of its size is treated as scant. The prosecution has failed to prove that the volume of the timber which has been exported was in excess of the volume mentioned in the permits. There is nothing on record to suggest that there was any prior meeting between the accused. Thus no inference of conspiracy can be drawn in the present case. The timber has been exported strictly as per permits No. 123 and 124 as noticed above. The timber has been exported during the validity of these permits. Therefore, there could not be any pecuniary advantage to the employees and wrongful loss to the State. The learned trial court on the basis of the correct appreciation of the oral as well as documentary evidence has rightly acquitted the respondents. The prosecution has failed to prove the case against the accused persons. It was necessary for the prosecution to prove precisely that the excess timber has been exported against permits No. 123 and 124 in any illegal manner in connivance with the railway authorities. The evidence which has been brought on record by the prosecution to establish the case against the respondents of excess exporting is pertaining to permits No. 121 and 130. The Vigilance Cell of the Railway Department has also held inquiry to ascertain whether the officers of the railway were involved or not. PW-2 M.A. Siddqui and PW-12 K.C. Nandwani have not found any irregularity while booking the timber for export on the basis of permits No. 123 and 124. 7 In view of the aforesaid reasons, there is no merit in this appeal and the same is dismissed. The bail/surety bonds furnished by the respondents are discharged. 18.8.2008 (Rajiv Sharma ), J. *awasthi*