HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No.: 643 of 2002. Reserved on: 7.4.2010 Decided on: 11.5.2010 State of H.P. ………Appellant. Versus Partap Singh Keiron 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, Assistant Advocate General. For the respondents: Mr.Ajay Kochhar & Mr.Satyan Vaidya, Advocates. V.K. Ahuja, J: This is an appeal filed by the State of Himachal Pradesh under Section 378 of the Cr.P.C. against the judgment of the court of learned Special Judge(Forest), Shimla, dated 7.6.2002, vide which the respondents were acquitted of the charge framed against them. Respondent Partap Singh was charged under Section 379 of the IPC for having committed theft of 523 scants of deodar and kail of different sizes belonging to the State of H.P., under Rules 18/20 of the H.P. Forest Produce Transit (Land Routes) Rules read with Section 120-B of the IPC for entering into conspiracy with co-accused. Respondent Nathu Singh was ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - charged under Section 218 of the IPC for having entered into conspiracy with other co-accused and prepared railway receipts knowing fully well that these were incorrect. He was also charged alongwith other accused for having entered into conspiracy of smuggling 523 scants out of State of H.P. by exporting the same in railway wagons from Railway Station Shoghi to Yamuna Nagar and committed the offence punishable under Rule 18/20 of the H.P. Forest Produce Transit (Land Routes) Rules read with Section 120-B of the IPC. He was also charged that during the relevant period he was posted as Assistant Station Master, Railway Station Shoghi having resorted to illegal means of smuggling the timber out of the State of H.P. to Yamuna Nagar by exporting the same in railway wagons and thereby committed an offence punishable under Section 5(1)(d) read with Section 5(2) of Prevention of Corruption Act. He was also charged under Section 120-B read with Section 218 of the IPC, Rules 18/20 of the H.P. Forest Produce Transit (Land Routes) Rules and Section 5(2) of the Prevention of Corruption Act for having smuggled 523 scants in railway wagons by resorting to illegal means. Respondent No.3 stands charged under Section 120-B of the IPC read with Rules 18/20 of the H.P. Forest Produce Transit (Land Routes) Rules for having entered into a conspiracy with other accused and prepared false and fictitious forwarding notes with respect to 523 timber scants from Railway Station Shoghi to Yamuna Nagar. He was also charged for - 3 - having committed offence punishable under Rules 18/20 of the H.P. Forest Produce Transit (Land Routes) Rules read with Section 120-B for having exported 523 timber scants from Railway Station Shoghi to Yamuna Nagar. 2. The prosecution story in brief is that during the investigation of the case FIR No.19/84, dated 9.9.1984, of Enforcement Department, it came to light that M/s Partap Singh Keiron, Forest Contractor, had exported 227 scants of timber in excess under the garb of export permit No.108/81-82, 2276 scants in excess under the garb of export permit No.109/81-82 and 739 scants were found to have been exported under the garb of export permits No.107/81-82 and 177/81-82. Thus, it was alleged that the firm was allowed to export 4489 scants of timber in total but the accused exported 4962 scants and thereby exported 437 scants of timber in excess from Railway Station Shoghi on the basis of different railway receipts. Thus, it was alleged that respondent No.1, in connivance with forest and railway officials, dishonestly exported the timber in excess. 3. On this basis a case was registered by the police and was investigated. During investigation, it was found that respondent No.1 was given an export permit valid upto 31.8.1981 for exporting 2802 nugs of kail to export the said timber to Yamuna Nagar and copy of the said export permit was also endorsed to Station Master, Railway Station, Shoghi. However, in the record kept in the office - 4 - of the DFO, Rohru, it was found in the office copy that 744 nugs of kail have been written but on the timber list, the number of scants was found to have been mentioned as 2802. Thus, respondent No.1 was allowed to export 2802 nugs under export permit No.107/81-82, 948 nugs under export permit No.109/81-82 and 744 nugs of kail under export permit No.109/81-82. Thus, respondent No.1 was authorized to export only 744 scants of timber but in the copies of export permit sent to railway authorities, respondent No.1 was allowed to export 2802 scants and the extension was granted to export the timber upto 31.10.1981. It was also alleged that vide export permit valid upto 31.8.1981 bearing NO.109/81-82, respondent was allowed to export 744 scants of timber from Thana to Yamuna Nagar via forest check post and export permit was endorsed to Railway Station Shoghi. However, on the strength of the said export permit, 744 scants were exported through forest check post but under the garb of export, 2203 nugs were exported. During the investigation of the case, record of railway receipts/forwarding notes were taken in possession and the record of the various firms in whose favour the timber had been exported was also taken into possession by the police. The private land of the land owners was also got demarcated but no illicit felling was found to have been done by respondent No.1. However, the disputed writing was got compared with specimen handwritings from the Government Examiner of Questioned Documents and on - 5 - completion of the investigation, challan was filed as against the respondents. Hari Krishan (now dead) remained posted as Station Master, Railway Station, Shoghi during the year 1981 and as per the prosecution, he had prepared incorrect record in the form of various railway receipts. Respondent No.2 remained posted as Station Master, Shoghi during the period. The prosecution examined as many as 45 witnesses. On conclusion of the trial, the respondents were acquitted of the charges framed against them by the learned trial Court. 4. I have heard the learned counsel for the parties and have gone through the record of the case. 5. The submissions made by the learned Assistant Advocate General for the appellant were that the timber was exported in excess as per export permit through Railway Station Shoghi in connivance with the then Station Master, respondent No.2. During the course of arguments, a reference was made to the relevant evidence to show that excess timber was exported on the basis of the export permits issued by the authorities and as such the findings of the learned trial Court to the contrary are liable to be reversed. A reference was made to the testimony of PW-9 Shri K.C. Nandwani, the then Vigilance Inspector in the Ministry of Railways, who was deputed to investigate the irregularities committed by the railway staff in the export of timber from the State of Himachal Pradesh. He had supported the case of the prosecution on the basis of his - 6 - report Ext.PW-9/A but in his statement he has admitted that the scants are put to smaller pieces while loading the wagon to use it to its full capacity to avoid uneven loading. In that case the number of scants will increase but the volume remains the same. However, he has not stated that the volume of the timber had increased on the basis of this practice adopted by the Railway Authorities. 6. Apart from the above, one railway receipt Ext.PW-37/D was also proved vide which 94 number of scants were exported. The said railway receipt was allegedly issued by Hari Kishan, the then Station Master at the Railway Station, Shoghi and the forwarding note was filled in one Satish Kumar. The timber had been received by PW-10 Ramesh Kumar. The prosecution has proved the entries in the register Ext.PW-10/A and cash book Ext.PW-10/B. However, the prosecution had failed to prove that the timber of the said railway receipts was sent through respondent Partap Singh since neither the said Satish Kumar was examined nor the discrepancies appearing in the record were proved. In the material placed on record, railway receipt was written in different ink and payment of this timber was made to one Shanti Swaroop and not to respondent Partap Singh. The number of scants as written in the records produced by PW-10 were 81 and not 94 as allegedly was exported through 6 RRs. The said Shanti Swaroop was also not examined to show under what capacity he has received the payment. In the statement of PW-42, the - 7 - forwarding note has been allegedly written by Satish Kumar (now deceased), who could not appear as prosecution witness. There is no evidence on the record to prove that he was the authorized agent of respondent No.1. There is also no evidence on record to show that the said timber was exported at the instance of respondent No.1. In the copy of the cash book Ext.PW-10/B, the number of scants has been mentioned as 81. In the railway receipts, the number of scants has been mentioned as 94 and the difference has not been explained by the prosecution. The payment of 81 scants has been shown to have been made in favor of Satish Kumar and credited in the account of Shanti Swaroop. The tampering of different writings of the railway receipts has not been explained by the prosecution. Shanti Swaroop has also not been examined to prove that the payment under the said railway receipts was made to the respondent. 7. PW-42 Lila Dutt and PW-44 Dhian Singh, the Investigating Officers in this case, could not explain as to by whom the number of scants was written 81 and not 94 in the copy of ledger Ext.PW-10/A. Simply writing the name of the permit holder cannot fasten any criminal liability on respondent No.1. The prosecution has also failed to prove that the forwarding note was in fact presented by respondent No.1 or payment was received by him. The possibility cannot be ruled out that the export permits may have been misused by the Assistant Station Master, Hari Krishan or Satish Kumar. In case 94 scants are excluded - 8 - from counting in the timber exported under export permits Ext.P-32 and Ext.P-34, the prosecution had failed to prove that any excess timber was exported under the said export permits. 8. The evidence in question has been discussed in detail by the learned trial Court and no such evidence could be pointed out during the course of arguments which was not relied upon wrongly having been produced by the prosecution or any material evidence was not considered by the learned trial Court while referring to the evidence. The detailed examination of the statements of the witnesses, therefore, is not required in view of the reasons given by the learned trial Court in which no infirmity was pointed out. During the course of arguments, the learned counsel for the respondents had also referred to a decision of this Court in Cr.A.No.175 of 1991, titled Nathu Singh and another v. State of H.P., decided on 3.12.1996. In that case, there were 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 - 9 - was incumbent upon the prosecution to have proved that the timber exported was in excess volume-wise and not numerically. 9. 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.” 10. Rule 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 the railways. A perusal of the statement of PW- 9 K.C. Nandwani shows that the copies of the instructions issued are sent to the Station Masters. He did not obtain any documentary proof from the Headquarters if the Instructions regarding such restrictions were conveyed to the Station Masters or not. Thus, it follows from this discussion that there is nothing on the record to show if these Instructions were issued to the Railway Authorities at Shoghi or not. - 10 - 11. The evidence in detail has been discussed by the learned trial Court and since no infirmity could be pointed out in the said conclusion arrived at by the learned trial Court holding that the prosecution had miserably failed to prove that the timber was exported in excess on the basis of the export permits issued in favor of respondent No.1, therefore, the final conclusion arrived at by the learned trial Court does not call for any interference by this Court and as such is liable to be upheld. 12. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed. The bail bonds furnished by the respondents shall stand discharge. May 11, 2010 (V.K. Ahuja), (TILAK) Judge.