1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.A.No.281 of 1999 Date of decision: 13.7.2010 State of H.P. … Appellant Versus Alaf Deen & ors …Respondents Coram: The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra, Addl. AG with Mr. Anil Jaswal, Dy. AG. For Respondents No 1 & 3 Mr. Rakesh Jaswal, Advocate. For the respondent No.2: Mr. Ajay Sharma, Advocate. R.B. Misra, J (Oral) Heard learned counsel for the parties. 2. The present Criminal Appeal has come up for consideration after the grant of leave to appeal under Section 378 (3) of the Code of criminal Procedure in reference to the judgment dated 4.3.1999 passed by the Learned Sessions Judge, Una in Sessions Trial No. 10/99, under Section 307, thereby acquitting the accused/respondents. 3. In order to adjudicate the present appeal, it is necessary to give the factual background of the case. On receiving information at about 8.15 on 30.6.1996 that one Alaf Deen is transporting resin tins in his truck bearing registration No. HIK-3971, latter known as Pritam Singh, accompanied with Sub 1 Whether reporter of local papers are allowed to see the judgment ? 2 Inspector of Police Krishan Chand, Head Constable Surti Ram, Constables Ashwani Kumar, Kishan Dutt, Surjeet Singh and Kushal Dev, traveling by police Jeep bearing registration No. HP 20-0478, barricaded the road at Basal by putting wooden benches on the road after procuring four benches from the khokhas of sweet meat sellers nearby the area. According to the prosecution, Alaf Deen on seeing the policemen, had accelerated the speed of the truck and after breaking the barricade by crushing wooden benches into pieces, tried to run over the policeman and escaped. However, policemen saved their lives by jumping out of the road. The said truck was chased by the police party in the area of Jhalera and during the course of chasing, some resin tins were thrown away on the road with an endeavour to block the chasing and smooth driving of chasing jeep. When the policemen reached at Raira Mohalla of village Rainsari they saw the truck HIK-3971 struck in the slush and on checking, nobody was found in the truck except 85 tins Police officials gathered 32 resin tins from the road indicating that 117 tins of resin were being carried without any route permit or any permission. Accordingly, FIR No. 306/1996 dated 1.7.1996 was registered. 4. During the course of arguments, it was revealed that the accused Ashwani Kumar was permitted for extracting resin from private forest at village Lohara. However, said Ashwani Kumar did not sell the resin tins extracted from private forest Lohara to the Forest Corporation. Ashwani Kumar stacked 94 tins of resin at a place known as Amba Da Padhar. 23 Tins of resin were kept by him at a place known as Jeena Nalah and on 3 30.6.1996, he got the tins of resin loaded in the aforesaid truck for the purpose of selling the same in Punjab. Keeping in view such interrogation, accused were charged for the offence under Section 307 IPC and holding them guilty under Rule 20 of H.P. Forest Produce Transit (Land Route) Rules, 1978. 5. In order to prove its case, prosecution examined as many as 22 prosecution witnesses, whereas in their statements under Section 313 Cr.PC, they denied the prosecution case. 6. On analyzing of the prosecution witnesses and material on record, it appears from the testimony of PW-1, Chanan Singh, PW-2 Prem Chand and PW-3 Telu Ram that Alaf Deen was not seen driving the truck and nothing could also be extracted from the testimony of PW-20 Kishan Chand, Inspector of Police and Pritam Singh PW-22, Dy.S.P. PW-21 Ram Dayal has simply recorded the FIR and stated that he has nothing to state against the accused. Pritam Singh and Kishan Chand have also stated that he did not see Alaf Deen driving the truck. The said truck was said to have crossed through the barricade put on the road by Sh. Pritam Singh at about 9.10 PM. Surti Ram stated that it was dark and he was wielding a search light and when the truck was being driven in a terrific speed, in the light of the search light, he was able to identify Alaf Deen . As such, HC Surti Ram PW-10, PW-20 and PW-22 have deposed that they had been able to identify Alaf Deen. However, without arranging and conducting the identification parade, the testimony of PW-10, PW-20 and PW-22 that Alaf Deen was said to be driving the said vehicle, cannot be relied upon. However, on the analysis of these prosecution witnesses, nothing apparently is indicated that 4 Alaf Deen was driving the truck on the day of incident. When the truck was struck up in the slush near the house of Telu Ram PW-3, undisputedly, accused were not present nearby the truck and truck was left abandoned and PW-3 Telu Ram has falsified the statement of Kishan Chand by stating that no tins of resin were lying in the truck and the truck was and the truck had been seen by him struck up in the slush at 7 PM when he returned to his house from the shop. Statement of Telu Ram that truck was struck up in the slush nearby his house before 7 pm, was also contradicted in view of the report of the prosecution and the statements of Pritam Singh Kishan Chand and Surti Ram indicated that the truck had struck up in the slush after 10 p.m. 7. According to the testimony of PW-4, Moti Ram, PW- 5 Suresh Kumar, PW-6 Sham Lal and PW-7 Gurcharan Dass the police personnel have procured wooden benches for barricading after procuring the wooden benches from Khokas belonging to the above prosecution witnesses, but Moti Ram PW-4 has stated that the police personnel did not procure benches from him for barricading the road. All these prosecution witnesses i.e. PW-4, PW-5, PW-6 & PW-7 have harmoniously stated that police personnel did not at all barricade the road at village Basal. As such, question of breaking the barricades does not arise when in view of above prosecution witnesses, road was not barricaded at all. 8. According to PW-16, Malkiat Singh, owner of truck No. HIK 3971, he had deployed Sh. Sharif Mohammad as driver to drive the truck in question in June, 1996 and Ramesh as a cleaner and Alaf Deen has nothing to do with the said truck. 5 9. Scrutiny of the above prosecution witnesses does not reveal that Alaf Deen at the relevant time was driving the vehicle on 30.6.1996 at 9.10 PM at village Basal by loading 117 tins of resin in the said truck. PW-10 Bachittar Singh, Dy. Ranger Forest Block Kotla, PW-13 Rattan Chand Dy. Ranger and PW-15 Om Parkash Forest Guard have not at all supported the prosecution case. According to these prosecution witnesses, Aswani Kumar was given the permit to tap resin from Lohara private forest by PW-14 Khem Chand, who happened to be the President of Cheel, Sal Trees Protection Co operative Society Ltd and PW-11 Biru Ram and PW-12 Ram Nath were the resin tapper, who stated that the resin extracted by them was being stored by accused Ashwani Kumar in the Government depot. 10. PW-8, Parkash Chand stated that Ashwani Kumar had stocked the resin tins in his cattle shed. PW-13 Rattan Chand, Dy. Ranger Forest Corporation, Bharwain has stated that no theft had taken place in the year 1996. PW-17, Jaswinder Singh, Head Constable had placed on record Ext PK, copy of daily diary report No. 24 dated 30.6.1996. PW-18, Desh Raj, Halqua Patwari Deera has stated Lohara forest is a joint jungle and no prosecution witnesses have stated that accused have ever made endeavour to run over the police personnel. As has been indicated above, there was no barricading and no wooden benches were kept for barricading the road. In such circumstances, there was no question of making endeavour by Alaf Deen to run over the police personnel with an attempt to finish their lives. 6 11. During the course of argument, Mr Rakesh Jaswal, learned counsel for the respondents has brought to our notice The Himachal Pradesh Resin and Resin Products ( Regulation of Trade) Act, 1981 ( in short ‘Act’). Section 4 of the above Act is reproduced as under: “4. On and after the commencement of this Act- (a) no person shall tap resin or manufacture any resin product or export any resin or resin products, unless he is registered under and in accordance with section10; (b) No person shall sell resin to any person other than the State Government or an authorized officer; (c ) no person other than the State Government or authorized officer shall purchase resin from any tapper/owner of resin; (d ) no person other than the State Government or an authorized officer shall transport resin except in the following cases:- (i) where he being a tapper of resin transports it to the resin depot specified for the area where the resin is tapped; or (ii) where he transports it on behalf of the State Government or an authorized officer; (e) no person other than the State Government or an authorized officer shall transport resin products manufactured in a unit to any place outside that unit without a permit issued in that behalf by such authority, in such manner and subject to such terms and conditions as may be prescribed.”’ 12. Mr. Rakesh Jaswal, learned counsel for the respondents has placed reliance on the decision of this Court in State of Himachal Pradesh Vs. Prittam Singh and another 7 Latest HLJ 2007(HP) 994. Paragraph-9 of the same is reproduced as under: “9. Section 2 (e) defines the “resin products” which includes resin. The breach of the above section is punishable under Section 14 of the Act ibid, which provides for the penalty and Section 16 thereof prohibits the cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by a Forest Officer not below the rank of a Forest Ranger or by such other officers as may empowered by general or special order of the State Government in that behalf.” 13. Section 16 of the above ‘Act’ provides as below: “16 No court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by a Forest Officer not belong the rank of Forest Ranger or by such other officer as may be empowered by general or special order of the State Government in that behalf.”’ 14. Mr. Rakesh Jaswal, learned counsel for the respondents relying on the decision of Prittam Singh and another (supra) has submitted that the complaint was not filed by the duly authorized person as envisaged under the ‘Act, 1981’, As such, the court could not take cognizance and the acquittal of the accused/respondent is justifiable. He has also invited the 8 attention of this Court to paragraphs 10 & 11 of Pritam Singh (supra), which for the convenience of this Court are extracted below: “10. In the present case, admittedly, no complaint in writing has been made to the court by the concerned public servant as per the provisions of Section 16 of the Act. Though the cognizance was taken by the Judicial Magistrate, below, on the basis of police report submitted to him under Section 173 of the Code of Criminal Procedure, but such cognizance under the Act was, therefore, had and the entire trial of the respondents stood vitiated including Sections 41 and 42 of the Indian Forest Act. The transporting of the resin is governed under the Himachal Pradesh Resin and Resin Products ( Regulation of Trade) Act, 1981, which provides the penalty for any breach committed under the Act. The alleged offences were committed in the course of same transaction and a composite challan, in respect of all the offences including Section 379 of the Indian Penal Code and Sections 41 and 42 of the Indian Forest Act, was presented by the police under Section 173 of the Code of Criminal Procedure, before the trial court. Such a challan cannot be split up, therefore, when the trial court was not competent to take the cognizance under Section16 of the Act, then it cannot be ventilated that the respondents should have been convicted and sentenced under Sections 41 and 42 of the Indian Forest Act, instead of Section 14 of the Act.” “11. There is nothing on record that SDO (P) Shri Gurmeet Singh was a duly authorized person to present the challan/complaint under the Act. In State of HP Vs. Sultan Mohamad (1998 (1) C.L.J. 262 H.P.), it was held that the prosecution of the accused was not maintainable in absence of special 9 or general notification to launch prosecution by the police under the Act in such a case.” 15. According to Mr. Rakesh Jaswal, no action was taken under the relevant prevailing Act, 1981, however, since no such act was done by the accused which could be brought under Section 307 IPC, as such, they are not held liable for any offence under section 307 IPC. 16. In view of the aforesaid discrepancies and in view of the statement of prosecution witnesses, no prosecution witnesses, except a few witnesses, have supported the prosecution, therefore, there is no scope of interference in the impugned order passed by the learned Session Judge. Therefore, the appeal being devoid of merit, is accordingly dismissed. Bail bonds furnished stand discharged. ( R.B.Misra ), J. ( V.K. Sharma).J 13TH July, 2010 (sl)