HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No. 310 of 1999. Reserved on: 15.5.2008. Decided on: 6.6.2008. State of H.P. ………Appellant. Versus Amrit Singh and others ……Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.J.S. Guleria, Law Officer For respondents No.1 to 8: Mr.Ajay Kochhar, Advocate. V.K. Ahuja, J: This is an appeal filed by the State of Himachal Pradesh against the judgment of the court of learned Special Judge (Forests), Shimla, dated 31.3.1999, vide which the respondents were acquitted of the charge framed against them under Sections 379, 411, 218, 120-B, Rules 18 and 20 of H.P. Forest Produce Transit (Land Routes) Rules 1978 and under Section 5(1)(d) read with Section 5(2) of Prevention of Corruption Act. Briefly stated the facts of the case are that during the course of an investigation in case FIR No.17/84, Police Station Enforcement, South Zone, _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Shimla, the record of the Railway Station, Summer Hill was checked and it was found that M/s Bipan Lal & Company, Forest Contractor, got two export permits for exporting 3437 and 2807 scants, respectively, but in fact the Company exported 4846 and 3018 scants, respectively. Thus, it was alleged that the Firm had exported 1349 and 211 scants in excess of the permission granted vide the permits. The Firm also exported timber from Summer Hill Railway Station on expired dates vide permits which were valid from 29.3.1982 to 29.4.1982, vide railway receipts dated 1.5.1982 and 4.5.1982. It was further alleged that the Firm had exported timber without export permit vide invoices to Railway Station Jagadhari and Patiala and the permits were not endorsed to Railway Station Summer Hill. It was the further case of the prosecution that the investigation was conducted and it was found that M/s Bipan Lal and Company had applied for issuance of export permit for 849 scants, Kail 1958 scants from Machhoti to Yamuna Nagar with extension of validity upto 28.1.1982 and further extension upto 4.3.1982 was also issued. It was the further case of the prosecution that permits were also issued subsequently for transportation of Deodar scants etc. as well as for 1200 quintals waste wood vide permits, but the export permits were not endorsed to the Station Master, Railway Station, Summer Hill. The said lessee Company hatched a criminal conspiracy and exported the timber from Railway Station, Summer Hill through various RRs. of different dates and had exported 2804 scants from Summer Hill through railways and 674 scants from Railway Station Soghi. Thus, it was the prosecution case that 3478 scants exported on permit No.177 were not endorsed to Railways Stations, Summer Hill and Soghi, but these were exported in connivance with the railway staff and the - 3 - timber was sent to Patiala also. It was alleged that 2498 scants were exported in excess and on investigation of the case, the challan was filed against the said Company as well as the various Officers of the Railway. The respondents were tried by the learned trial Court under various Sections mentioned above leading to their acquittal. To substantiate their case, the prosecution examined 53 witnesses and proved various documents. The accused persons also examined 9 witnesses in their defence but they have not denied that Bipan Lal was not a Forest Lessee or Vinod Kumar & Shanti Swaroop were not loading/unloading agents and Amrit Singh, Daljit Raj Saini, Ved Parkash, Nathu Singh and R.M. Dua (now deceased) were Station Masters and Assistant Station Masters during the relevant time, but they had denied that they had connived together and had exported the excess timber than permitted by the export permit. I have been taken through the discussion made by the learned trial Court in regard to the evidence led by the prosecution to prove charge as against the respondents. Nothing has been pointed out that the observations made by the learned trial Court in discussing the evidence were incorrect. No specific evidence has also been shown which was omitted to be discussed by the learned trial Court, which can be termed as material. A reference can be made to the testimony of PW-26 K.C. Nandwani, Retired Vigilance Inspector, Railway Board, who conducted the inquiry in regard to the irregularities committed on the Railway Stations, Soghi, Dharampur and Summer Hill with respect to the booking of timber. He had clearly concluded, as per his statement, that the consigner was entitled to export the timber through Railways. - 4 - In regard to the plea that a copy of the permit was not endorsed to railway authorities, the learned trial Court had referred to Rule 18 of the H.P. Forest Produce Transit (Land Routes) Rules, which reads as under: “Bar on booking of forest produce by Rail: No person shall offer any forest produce for export by Rail of any Railway Station within H.P. unless it is covered by a pass issued under these rules. Nor will the Railway authorities except any forest produce for transport by rail unless accompanied by a valid pass.” ` Rules 11 of the aforesaid Rules prohibits the transportation of any forest produce by land routes without obtaining pass from the DFO or any other Officer so authorized. It was rightly observed that no special pass is required to be procured for transportation of forest produce by railways. Nothing has been brought on record by the prosecution to show that any such restrictions were imposed on transportation of any particular item through the railways by the State Government. Such instructions become operative only if they are circulated to the field staff of the railway authorities and there is nothing on record to show that any instructions were issued to the railway authorities at Summer Hill and Soghi. It was for the prosecution to prove that the timber was transported in excess after the validity of the export permit in which the prosecution had failed miserably. The learned trial Court had discussed the evidence in this regard, in detail, and had gone through the evidence and I need not discuss the evidence again. A perusal of para 34 of the judgment of the learned Special Judge shows that it was observed as under: “From the totality of the prosecution evidence, it is now made clear that the moment the indent is placed and forwarding - 5 - note is filled up the same is accepted and the entry is made in the priority register and the registration is made and wagon for the transportation of the timber is allotted by the Ambala Control officer which is not within the control of the Station Master and even he has no authority to cancel the arguments and some times it takes 8 to 10 days to get the wagon and they have specifically stated that the permit is seen at the time of the registration. So admittedly booking of the goods by railways and issuance of the RR are two different stages and the validity of the permit has to be seen at the time of the registration only. The prosecution has not led any evidence that the registration of the timber was not made within the validity of the permit and about the fact as to whether the goods were booked by the Station Masters within the validity period, the same could be ascertained from the priority register only which contains the details of the registration of the goods but in the instant case that priority register has not been produced on record by the prosecution which would have been the best piece of evidence to show the date of registration of the goods. Though the prosecution has alleged that Ext.PB-7 to Ext.PB-11 and Ext.PB-3 RRs have been issued after the expiry of the permit No.177 i.e. Ext.PBBB/11. From the perusal of permit No.177 it is evident that initially it was valid up to 9.1.92 and thereafter vide Ext.PBBB/14 it was extended upto 28.1.82 and thereafter this permit was further extended upto 4.3.82 Ext.PBBB/18. Therefore, it cannot be said that vide permit No.177, this RR was issued after the expiry of the export permit. Similarly the prosecution has not been able to prove on record that permit No.132 Ext.PBBB/15 that the RRs on the basis of the permit No.232 Ext.PBBB/15 were issued after the expiry of the permit. It is also made out from the statement of PW-38 Shri Gurcharan Singh that the entry in the railway priority register amounts to booking of the timber and he is the person who has also done the timber loading and he has further clarified that the railway authorities cannot refuse to book the timber if the forest lessee brings the timber and also the valid permit. Therefore, the statements of these PWs have clinched the whole matter that the moment, the forwarding note is accepted and same is entered in the priority register which amounts to booking of the timber and not from the date of issuance of the railway receipts. Therefore, it has been made out from the prosecution evidence that the RRs on the basis of the permit No.177, 232, 120 and 125 had been issued and indent for transporting the timber was placed within the validity period of the permit.” - 6 - A perusal of para 37 of the judgment of the learned Special Judge shows that it was observed as under: “Next question comes for determination as to whether excess timber was exported than the mentioned in the permit. It has been alleged by the prosecution that permit No.177/81-82 was issued by the Divisional Forest Officer for 2807 scants and accused have exported 3470 scants i.e. 671 scants in excess from Railway Stations Summer Hill and Shogi vide RRs Exts.PB, PB1 to PB16 and vide permit No.232/81-82, they were entitled to export 3437 scants of timber through railway station Summer Hill but instead they have exported 5146 scants in excess than permitted vide 25 RRs and export permit No.120 was valid for 206 scants but the accused vide RR EXts.PS-9 to PS-11 have transported excess timber. It is further alleged that Bipin Lal contractor had sold 3866 scants of timber to Sudesh Kumar of Yamuna Nagar vide Ext.PB, PB-1, PB-2, PB-12, PB-13, PB-6, PB-5, PB-14, PB-6, PB-7 to PB-11, 225 scants to M/S. Nathu Ram Gurdash Ram vide RR Ext.PS-1; 187 scants to Madan Timber Traders Yamuna nagar vide RR Ext.PS-30, 5456 scants were sold to Ramesh Chander Sharma & Sons, Yamuna Nagar vide EXts.PS.6 to PS-8, PS.20, PS 29, Exts.PS.9 to PS.19 and RRs No.792957 which is not exhibited and vide Ext.PS-11; 15 scants were sold to Trilochan Singh of Patiala and he has also received the payment for the sale of the timber. The prosecution in order to prove its case that the timber was transported in excess than permitted in the permit through railway has examined PW-2 Shri Sudesh Kumar, partner of M/S. Sudesh Kumar Sharma and Company Yamuna Nagar and he testified that vide Ext.PB, Exts.PB1 to Exts.PB14 he received consignment through railways and payment of timber was made to Bipan Lal and has also produced on record the copy of the ledger Ext.PB.15. The perusal of the ledger Ext.PB-15 would go to show that the details of the RRs is not mentioned in the ledger. Even certain entries of the amount was not mentioned in the ledger which he has discussed orally. Even the cheque number and draft numbers are not mentioned. So therefore, it is not made out from the statement that which of the RRs and which of the permit or on RRs he hd received the timber from Bipin Lal. PW-23 Shri Ramesh Chand is Prop. of firm M/S. Ramesh Chanders Sharma and Sons Yamuna Nagar. He has testified that he has received timber from Bipin Lal which was booked from Summer Hill Railway Station and has produced Ext.PB.1 photo copy of the ledger and Exts.PB 2 to PB.5 of the copies of the receipt register and has also produced Exts. PB.7, PB.8 bills, PB-9 abstract of the ledger. - 7 - It has come in the cross-examination that nags and Cft. is not mentioned in the copy of the ledger and he has admitted that RRs on the reverse of these, have been signed by him.” It is not necessary to refer to the discussion of the evidence again in different words since the proper discussion was made by the learned trial Court and that has been reproduced by me. The practice of reproducing the observations made rather discussing the same evidence again was adopted by this Court in discussing the facts of a similar case in Criminal Appeal No.261 of 1997, decided on 12.1.2001, by Hon’ble Mr.Justice C.K. Thakker, former Chief Justice of this Court, presently Judge of the Hon’ble Supreme Court. During the course of arguments, the learned counsel for the respondents had referred to a decision of this Court in Criminal Appeal No.175 of 1991, titled Nathu Singh and another v. State of H.P., decided on 3.12.1996. In that case, there was allegations that 33 pieces of timber had been exported in excess. However, it was held by this Court on the basis of the evidence that to cover the entire space of the wagon and to ensure even and proper loading, scants were often cut into pieces and that could have been the cause of increase in the numerical quantity. It was held that in the face of such evidence, it could not be said that any offence had been committed or that timber had been exported in excess of the quantity mentioned in the permit. It was held in that case that it was incumbent upon the prosecution to have proved that the timber exported was in excess volume-wise and not numerically. A reference was also made to the decision of this Court in Criminal Appeal No.261 of 1997, titled State of H.P. v. Gian Singh and another, decided on 21.1.2001, wherein similar observations were made by this Court on the basis of the evidence led and it was observed that transportation was not within the - 8 - hands of the accused and it depended upon the availability or otherwise of wagons, which was within the power of the railway authorities. There was nothing to show that the timber reached the railway station after the expiry of the date of permit and, therefore, the accused could not be held liable. The above discussion clearly shows that once the timber reaches the Railway Station, the loading does not depend solely on the consigner who is only required to produce the timber before the expiry of the validity of the permit and further responsibility is not on the consigner but on the railway authorities subject to the availability of wagons. In case the timber had been produced before the expiry of the permit before the railway authorities and in fact it was exported after the expiry of that date, the accused persons cannot be said to be liable since the arrangement of the wagons does take time and the responsibility cannot be fastened upon the consigner or even on the railway authorities who had received the timber well in time. The detailed discussion of the evidence made by the learned trial Court does not suffer from any infirmity and no other conclusion can be arrived at than the one arrived at by the learned trial Court that the prosecution had failed to prove their case beyond any reasonable doubt. No such evidence was pointed out by the learned Law Officer during the course of arguments which was not discussed by the learned trial Court and, therefore, the final finding recorded by the learned trial Court are liable to be upheld. In view of the above, there is no merit in the appeal filed by the State and the same is dismissed accordingly. Bail bonds furnished by the respondents shall stand discharged. June 6, 2008 (V.K. Ahuja), (TILAK) Judge.