IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Revision No. 84 of 2005 Judgment reserved on : 28.10.2011 Date of decision: 29.11.2011 Ved Parkash and another …Petitioners. Versus State of Himachal Pradesh ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the Petitioners : Mr. N.S.Chandel, Advocate. For the Respondent. : Ms. Ruma Kaushik, Addl. A.G. with Mr. P.M.Negi, Dy. A.G. __________________________________________________________ Kuldip Singh, Judge This revision is directed against judgment dated 3.5.2005 passed by Additional Sessions Judge, Ghumarwin in Criminal Appeal No. 17/10 of 2004/2003 affirming judgment dated 17.10.2003 passed by Chief Judicial Magistrate, Bilaspur in Case No. 21-1 of 1999/97 convicting the petitioners for offences punishable under Sections 41, 42 of the Indian Forest Act and sentencing each convict to undergo simple imprisonment for a period of six months and a fine of ` 3,000/-. In default of payment of fine, to undergo simple imprisonment for a period of two months. __________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? 2 2. The prosecution case in brief is that in the intervening night of 25/26.2.1997 at about 2.30 a.m. PW-11 S.I. Hari Singh along with PW-8 Harjeet Singh and Constable Amar Singh were on naka near Gharwasra –Kodra-Shahtalai road on a hired jeep No. HP-02-5072 driven by Paramjit Singh. PW-1 Prithi Chand was also sitting in the jeep. In the meantime, a truck No. HIB-1215 driven by petitioner No.2 Mohan Lal came from Kodra side. The driver was stopped on giving signal. On suspicion, the truck was checked and on checking it was found that the petitioner No.2 was driving the truck and petitioner No.1 was sitting alongwith petitioner No.2 in the truck. 3. On checking the truck, 429 logs of khair wood weighing about 80 quintals were recovered from the truck. The petitioners were asked to produce the permit or permission to transport the logs of khair wood. They could not produce any permit or permission to transport the khair wood logs between sunset and sun rise. The truck along with khair wood logs was taken into possession and after weighing 63 quintals of khair wood was found. 4. It was found during investigation that aforesaid khair wood logs were being transported by petitioners to Katha Bhati Baseh Khud Hamirpur. Rajinder Pal, Contractor produced permit No. 4/96-97 dated 22.11.1996 for permission to fell trees from the lands of the land holders and permit No. 100/CC/96-97 dated 25.2.1997 issued by the D.F.O., Bilaspur for carrying 2415 khair logs valid upto 8.3.1997 for transporting the same. These permits were 3 taken into possession. The case against the petitioners was that they were transporting 429 khair wood logs on the intervening night of 25/26.2.1997 at about 2.30 a.m. between sun set and sun rise without any valid permit or permission. 5. On completion of investigation, challan was submitted in the Court. The notice of accusation for offence punishable under Sections 41, 42 of the Indian Forest Act was put to the petitioners. They pleaded not guilty and claimed trial. The prosecution has examined 11 witnesses and produced some documents in support of the prosecution case. The statements of petitioners were recorded under Section 313 Cr.P.C. They denied the prosecution case but led no evidence in defence. On conclusion of trial, the Chief Judicial Magistrate convicted and sentenced the petitioners on 17.10.2003 and the Additional Sessions Judge dismissed their appeal on 3.5.2005, hence petitioners have come in revision. 6. I have heard the learned counsel for the petitioners and learned Additional Advocate General on behalf of the State and have also gone through the record. It has been stated on behalf of the petitioners that the two Courts below have misconstrued and mis-interpreted the evidence on record and the Himachal Pradesh Forest Produce Transit (Land Routes) Rules, 1978 (for short ‘Rules’). There is no legal evidence on record to prove the accusation, the Courts below have misconstrued and misinterpreted the evidence. The view taken by the two Courts below does not emerge from the evidence on record. It has been submitted that the 4 sentence imposed is excessive. The submission has been made for setting aside the conviction and sentence of the petitioners. The learned Additional Advocate General has supported the impugned judgment and has submitted that the two Courts below after due appreciation of material on record have rightly convicted and sentenced the petitioners. The scope in revision is very narrow. The submission has been made for dismissal of the revision. 7. The trial Court has put identical notice of accusation to both the petitioners that on 25/26.2.2007 at 2.30 a.m. at Gharwasra they were transporting 80 quintals khair wood without permission which is punishable offence under Sections 41, 42 of the Indian Forest Act. PW-1 Ami Chand has stated that on 25/26.2.1997 at about 2.30 or 3.00 a.m. night he was at Gharwasra along with police party. He was sleeping and woke up and was told that khair wood in a vehicle No. HIB-1215 has been caught. The accused could not produce the papers, they said they would produce in the police station. In cross-examination, he has stated that he was sleeping, therefore, he cannot say that the truck was parked on the road. The accused had told that the wood belonged to Rajinder Pal, Contractor. PW-2 Mahinder Singh has stated that he was called at about 3.00 – 4.00 a.m. by the S.H.O. and was told that a truck loaded with wood has been caught. The truck was parked. PW-6 Krishan Singh has stated that pass No. 100/CC/96-97 in favour of Rajinder Pal is Ex.PW-6/A and permit No. 4-96/97 Ex.PW-6/B. PW-7 Mani Ram has proved FIR Ex.PW-7/A. 5 8. PW-8 ASI Harjeet Singh has stated that the police party was at Naka when truck came from Kodra, C. Amar Singh signaled the truck driver to stop the truck. The truck No. HIB-1215 was checked and 80 quintals of khair wood was found loaded in the truck. The occupants of the truck could not produce any permit for carrying khair wood. PW-10 Bansi Ram, Forest Guard has stated that on 25.2.1997 at 5.00 p.m. he got loaded 429 logs of khair wood, driver was Ved Parkash, Ex.PW-10/ A was prepared by him. In cross-examination, he has stated that permit was duly issued for wood and he himself got loaded the truck during the day. He said that he does not know whether truck was parked after sunset. 9. PW-11 S.I. Hari Ram has stated that on 26.2.1997 at 2.30 a.m. he was at Gharwasra and truck No. HIB-1215 came from Kodra side. Mohan Lal was driving the truck and Ved Parkash was sitting inside the truck. The accused told that wood was 80 quintals but could not produce any licence or permit for carrying the wood during the night. Ex.PW-11/B ruqua was sent for registration of the case, spot map Ex.PW-11/C was prepared. Rajinder Pal, Contractor came, he told that he got loaded the wood a day before in the truck. He was having permit and challan of the wood. He produced photocopy of the permit Ex.PW-6/A and Parcha Hamrahi (challan) Ex.PW-10/A. On weightment wood was found 63 quintals and 429 pieces. The permit is Ex.PW-6/B. He denied that the truck was parked by accused before sun set near Gharwasra and the accused 6 were sleeping in the truck. He denied that the truck was not being plied during night. 10. In the statement under Section 313 Cr.P.C. the petitioners denied the prosecution case. PW-11 S.I. Hari Singh has stated that Rajinder Pal, Contractor produced the photocopy of permit Ex.PW-6/A and Parcha Hamrahi (Challan) Ex.PW-10/A of the wood which was caught. The permit of the wood is Ex.PW-6/B. PW-10 Bansi Ram has stated that Parcha Hamrahi Ex.PW-10/A was prepared by him. The wood was having valid permit and it was got loaded by him a day before during the day. Thus, it can be safely concluded that the wood in question was atleast having valid permit and documents when it was loaded in the truck a day before the occurrence. 11. The sub rule 4 (a) provides that the authority issuing the pass shall prescribe a route by which alone the forest produce may be transported for export outside Himachal Pradesh in such a manner that the forest produce crosses through one of the barriers established by the Excise and Taxation Department. The second proviso to sub rule 4 (a) is as follows: “Provided further that no timber or other produce from any forest depot or intermediate depot or first station/depot of despatch shall be loaded in vehicles/trollies/bullock carts etc. after sun-set and before sun-rise. The Divisional Forest Officer concerned may further impose any restriction(s) if so warranted for controlling the movement of the forest produce after sun-set and sun-rise.” 7 12. The Rule 15 is as follows:- “Detention of forest produce & other articles etc. In the event of the pass/challan not being produced, the Forest Officer or Police Officer may detain the Forest Produce, vehicles, camels, mules etc. by which it was being transported and cause the same not to move as long as may be reasonably necessary to examine the forest produce and/or till the valid pass/challan is produced.” The Rule 20 prescribes penalty, which is double in cases where the offence has been committed after sunset or before sun-rise. 13. The Chief Judicial Magistrate in the judgment dated 17.10.2003 has recorded a finding that the truck was loaded with Khair logs at 5.00 p.m. on 25.2.1997 at Majher depot. The accused were found transporting khair logs between sun set and sun rise which is specifically prohibited under the law. He has also recorded a finding that the accused were in fact transporting Khair logs at 2.30 – 3.00 a.m. on 26.2.1997, the prosecution has been able to bring home the guilt of the accused beyond any reasonable doubt. The Additional Sessions Judge has recorded a finding that the prosecution has proved its case against the accused beyond all reasonable doubt that during intervening night of 25/26.2.1997 at about 2.30 a.m. they were found transporting 429 logs of khair wood weighing 63 quintals in truck No. HIB-1215 after sun set and before sun rise without a valid permit. 14. The Courts below have not appreciated that Rule 15 provides that in the event of the pass/challan not being produced, 8 the Forest Officer or Police Officer may detain the Forest Prodduce, Vehicles, Camels, Mules etc. by which it was being transported and cause the same not to move as long as may be reasonably necessary to examine the forest produce and/or till the valid pass/challan is produced. The Rule 15 indicates that the Police/Forest Officer will give time to the accused for production of the pass. In the present case, it has come on record that khair wood belonged to Rajinder Pal, Contractor who lateron produced the permit Ex.PW-6/B. The ‘Parcha Hamrahi’ Ex.PW-10/B was also produced. It is not the case of the prosecution that Ex.PW-6/B, Ex.PW-10/B and Ex.PW-6/A are forged or these are prepared after the timber was caught. Thus, it can be safely concluded that the transportation of the khair wood was based upon valid documents though those were not with the accused when they were caught. The documents were produced immediately and, therefore, in view of Rule 15 it cannot be said that accused committed offence of transportation of timber without valid documents. 15. The next question is whether the accused have committed an offence for transportation of khair wood after sun set and before sun rise. PW-1 has stated that he cannot say that truck was parked on the road. PW-2 has stated that he was called at about 3.00 – 4.00 a.m. by SHO and was told that truck was loaded with wood has been caught. The truck was parked. PW-8 ASI Harjeet Singh has said that police party was at Naka when truck came from Kodra side. PW-11 S.I. Hari Singh has stated that truck 9 came from Kodra side. C. Amar Singh, who allegedly signaled to stop the truck has not been examined. The defence of the petitioners is that after sun set, the truck was parked and they were resting in the truck. There is no independent witness to support that actually the truck was moving when it was intercepted and stopped. The spot map Ex.PW-11/C indicates point ‘C’ where the truck was checked, near the point ‘C’ is the house of Gian Chand at point ‘D’. But no occupant of the house of Gian Chand has been examined as a witness by the prosecution. 16. In addition the notice of accusation put to petitioners is that they were transporting 80 quintals khair wood on 25/26.2007 at 2.30 a.m. at Gharwasra without permission. In the notice of accusation, there is no specific reference that they were transporting khair wood after sun set and before sun rise in violation of rules. The second proviso to Rule 4 (a) prohibits loading in vehicles/ trollies/ bullock carts etc. after sun set and before sun rise. It is not the prosecution case that petitioners loaded truck with khair wood after sun set or before sun rise. The rule 4(a) further provides that the Divisional Forest Officer concerned may further impose any restriction(s) if so warranted for controlling the movement of the forest produce after sun set and sun rise. In pass Ex.PW-6/A there is a condition that no forest produce shall be allowed export before sun rise and after sun set. 17. The Rule 4 (a) provides that the authority issuing pass shall prescribe by which route the forest produce may be 10 transported for export outside Himachal Pradesh. In these circumstances, the term export mentioned in pass Ex.PW-6/A is to be construed in the context of export from outside the Himachal Pradesh. There is no allegation that the petitioners were transporting the khair wood outside the Himachal Pradesh. The prosecution case is that khair wood logs were being transported by petitioners to Khata Bhati Baseh Khud Hamirpur. In Ex.PW-6/A there is no condition that khair wood would not be transported after sun set and before sun rise. 18. The second proviso to Rule 4 (a) authorizes the concerned Divisional Forest Officer to impose restriction(s) if so warranted for controlling the movement of the forest produce after sun set and before sun rise. In pass Ex.PW-6/A, permit Ex.PW-6/B or Parcha Hamrahi Ex.PW-10/A no restriction was imposed by the Divisional Forest Officer for controlling the transportation of khair wood within Himachal Pradesh after sun set and before sun rise. This aspect of the case has been completely missed by the two Courts below and they erred in convicting and sentencing the petitioners. The evidence has been misconstrued, wrong inference has been drawn from the material on record. The impugned judgment dated 3.5.2005 affirming judgment dated 17.10.2003 is not sustainable. 19. In view of above discussion, revision is allowed, judgment dated 3.5.2005 passed by Additional Sessions Judge, Ghumarwin in Criminal Appeal No. 17/10 of 2004/2003 affirming 11 judgment dated 17.10.2003 passed by Chief Judicial Magistrate, Bilaspur in Case No. 21-1 of 1999/97 is set-aside. The petitioners are acquitted of the accusation. The fine amount, if any, deposited by the petitioners be refunded to the petitioners. The bail bonds of the petitioners are discharged. November 29, 2011. ( Kuldip Singh ), (GR) Judge.