HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No. 13 of 2000. Reserved on: 12.5.2008. Decided on: 3.6.2008. State of H.P. ………Appellant. Versus Joban Dass 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 respondent No.2 to 5: 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, Shimla, dated 9.8.1999, vide which the respondents were acquitted of the charge framed against accused Subhash Chand and Jagpal Singh under Sections 120-B read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Rules 18 and 20 of the H.P. Forest Produce Transit (Land Routes) Rules, 1978 and under Section 218 of the Indian of the Indian Penal Code, under Section 13(1)(d) of the Prevention of _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Corruption Act and under Rule 20 of the H.P. Forest Produce Transit (Land Routes) Rules, 1978 read with Section 42 of the Indian Forest Act. Charge under Section 120-B read with Section 218 of the Indian Penal Code, Section 13(1)(d) of the Prevention of Corruption Act and Rules 11(1) and 20 of the H.P. Forest Produce Transit (Land Routes) Rules read with Section 42 of the Indian Forest Act and Section 42 of the Indian Forest Act was made out against accused Joban Dass, Leela Dutt and Baldev Verma. Prosecution story in brief is that during the investigation of a case FIR No.19/1984 of Enforcement Department, it came to light that against permit dated 25.5.1981 issued by DFO, Shimla valid upto 10.6.1981 and thereafter renewed upto 11.7.1981, 270 pieces of Deodar and Kail wood had been exported in excess of number of pieces permitted to be exported vide the said permit. It was also found that against permit valid upto 10.4.1982, 88 pieces of wood had been exported in excess of the number mentioned in the permit. It was further found that some timber had been exported against the permit even after the expiry of the permit and the said permit had not been endorsed to the railway authorities, but timber had been exported through railway from Shoghi to Jagadhari against that permit. Inquiry was conducted and a case FIR No.13/85 was registered and was investigated. It was found that in March, 1981 accused Joban Dass had made an application to the DFO, Shimla to fell trees of Deodar and Kail in Village Mahu and Village Badur. It was also in the application that the owners of the said land had agreed to sell trees standing thereon to Joban Dass, who was a registered forest lessee with the Forest Department. The DFO accorded permission and directed the Range Officer, Kotkhai to mark the trees after obtaining demarcation from revenue staff. The said order was complied - 3 - with by the Range Officer and in all 121 trees, namely, 48 of Deodar and 73 of Kail species were marked and accused Joban Dass was permitted to fell those trees. Thereafter, another application was moved by Joban Dass that he had fell 60 trees of Deodar and Kail and had converted them into timber consisting of 749 pieces. He sought permission to export the timber which was granted to him vide permit dated 25.5.1981 valid upto 10.6.1981. After sometime, Joban Dass made another application that out of the permission granted vide the said permit, he could export only 451 pieces and time to export the remaining 298 pieces be extended. This request was acceded to and he was given time upto 11.7.1981 to export the timber against the same permit. Accused Joban Dass had authorized one Shiv Dutt (now dead) to export the timber against the aforesaid permit on his behalf. Such timber, which was to be exported against the said permit, was transported from the spot to Railway Station Shogi by trucks and from there it was transported by railway to Jagadhari. It was further found by the police that only 749 pieces of timber were permitted to be exported against the said permit but 1019 pieces were exported from Railway Station Shogi to Jagadhari. The forwarding notes for transporting the timber were filled on behalf of Joban Dass by loading/unloading contractors, namely, Leela Dutt and Baldev Verma. Railway receipts were filled and signed by late Hari Krishan Sharma and accused Jagpal Singh, who was posted as Assistant Station Master during those days. The said Hari Krishan had filled the railway receipts of 829 pieces of timber, while accused Jagpal Singh had signed railway receipts for 190 pieces. It was further the prosecution case that 61 trees standing on the remaining land were fell and converted into timber in June 1981 and an - 4 - application was moved on 3.6.1981 by the accused Joban Dass to the DFO, Shimla seeking permission to export the timber consisting of 889 pieces. It was permitted to be exported vide permit dated 31.7.1981 valid upto 10.8.1981. However, only 567 pieces were exported against the said permit upto the expiry date of permit. The said permit was also not endorsed to railways but the railway authorities allowed the transportation of 567 pieces by railways. On 19.2.1982, accused Joban Dass moved another application to the DFO, Shimla for permission to export 322 pieces of timber, which were included in the permit, but could not be exported within the permitted period. The request for extension of the period was acceded to and permit valid upto 10.4.1982 was issued, which was endorsed to the railway authorities. Against this permit, 410 pieces were transported from Railway Station, Shogi to Jagadhari and the railway receipts were issued by accused Subhash Chand in his capacity as Assistant Station Master and one of the receipt was issued after the expiry of the permit. The said timber was sent to a firm of timber merchant of Yamuna Nagar, which firm paid the price through twelve bank drafts amounting to Rs.1,77,000/-, which was received by accused Joban Dass. The payment of remaining amount was received by late Shiv Dutt to whom the export permits had been assigned by the accused Joban Dass. The prosecution story accordingly was that the accused persons hatched a conspiracy to smuggle the timber from the State of Himachal Pradesh to places outside the State and excess timber was exported against the aforesaid permit which had not even been endorsed to the railways and the railway receipts and forwarding notes were forged in furtherance of the conspiracy hatched by the respondents. - 5 - The prosecution to substantiate their case examined 20 witnesses. The trial was conducted by the learned trial Court leading to the conclusion that the prosecution has failed to substantiate the allegations made against the respondents, who were accordingly acquitted of the charge framed against them. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned Law Officer were that it was established from the evidence led by the prosecution that the timber had been exported in excess of the export permit and some of the timber was exported even after the date of expiry of permit and those permits had not even been endorsed to the railway authorities. Thus, it was submitted that those findings recorded by the learned trial Court cannot be said to be correct and call for an interference by this Court. On the other hand, the learned counsel for the respondents had supported the judgment recorded by the learned trial Court by submitting that the prosecution had failed to prove that the timber was exported in excess or beyond the date of permit and the final conclusion arrived at by the learned trial Court on the basis of the evidence cannot be said to be perverse calling for an interference by this Court. A perusal of the judgment recorded by the learned trial Court shows that there was a valid permit in favour of the accused Joban Dass to transport 749 pieces of Deodar and Kail and the railway receipts were issued in the name of Joban Dass and 1019 pieces of Deodar and Kail had been exported from railway Station Shogi to Jagadhari. - 6 - A perusal of the statement of PW-4 K.C. Nandwani, Vigilance Inspector in Railways, shows that he conducted a preliminary inquiry regarding the alleged role of Jagpal Singh, Subhash Chand and deceased Hari Krishan Sharma. He admitted in cross examination that when the timber is loaded in the wagons, often some scants are cut into pieces to avoid uneven loading and for railway purpose every piece of timber irrespective of its size is treated as one piece. His statement shows that the possibility that some of the pieces of timber were cut to facilitate proper loading cannot be ruled out. There is nothing in the evidence of the prosecution to show that the volume of the timber that has been exported was in excess of the volume mentioned in the export permit. There is no evidence to show how many pieces of timber had been offered to railway authorities against the permit. The forwarding notes have been proved alongwith railway receipts Ext.PS/10 to Ext.PS/13, but the number of pieces entrusted for transportation is not mentioned in all of them. The total number in them comes to 411 pieces only, which is far short of the number permitted to be exported. 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 - 7 - 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. 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. A perusal of the statement of PW-4 shows that in case there are some restrictions imposed on transportation of any particular item through railways by the State Government, such restrictions 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 such instructions were issued to the railway authorities at Shogi. The prosecution has proved certain railway receipts and forwarding notes and before the officers could be held liable for transportation, it had to be proved that they were issued the instructions conveyed by the State Government that this timber could not be exported through the railways before they are held liable for transporting the same by railways inspite of the permit issued in favour - 8 - of accused Joban Dass. There is nothing to establish from the railway receipts as to who had offered this timber for transportation either Joban Dass or someone on his behalf and no evidence has been led by the prosecution to establish as to by whom these forwarding notes were filled in. There is no proof on record to show that excess timber was exported beyond the terms of the permit. In regard to the claim that the timber could have been exported upto 10.4.1982 but it was exported on 12.4.1982 and 14.4.1982, as per the railway receipts, according to forwarding note Ext.PS/9 discussed by the learned trial Court, one bogie was offered to the Railways for export against permit on 8.4.1982 or before 10.4.1982. The learned trial Court has observed that there is no specific evidence to show that the timber was offered for export after the date of permit. It is also clear that the transportation of the timber by the railways does not depend solely on the assignee but on the availability of the wagons and accordingly until and unless, it was shown that the timber was accepted by the railway authorities beyond the date of permit, the respondents cannot be held liable for conspiracy or for the other charges. The plea taken by the accused that they had purchased the timber for transportation within the time granted vide the permit appears to have some substance. 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 hands of the accused and it depended upon the availability or otherwise of - 9 - 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. During the course of arguments, no such evidence oral or documentary, was pointed out which was not considered by the learned trial Court or was wrongly considered in coming to its conclusion that the guilt of the respondents was not established beyond any reasonable doubt. In view of the above discussion, it is clear that the findings recorded by the learned trial Court holding that the prosecution has failed to prove the charges against the respondents cannot be said to be perverse calling for an interference by this Court and as such there is no merit in the appeal filed by the appellant/State of H.P., which is dismissed accordingly. The bail bonds furnished by the respondents stand discharged. June 3, 2008 (V.K. Ahuja), (TILAK) Judge.