IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 575/2000 Reserved on:29.7.2008 Decided on: 19.8.2008 State of Himachal Pradesh. …Appellant. Versus Amrit Singh and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the Appellant : Mr. Rajinder Dogra, Additional Advocate with Mr. Vikas Rathore, Deputy Advocate General. For the Respondents : Mr. Ajay Kochhar, Advocate for respondents No.1, 2 and 4. Ms. Yogita Dutta, Advocate for respondent No.3. Rajiv Sharma, J. The accused were prosecuted in Corruption Case No. 7-S/7 of 1997/94 in the Court of Special Judge (Forests) Shimla under sections 379,420,120-B of the Indian Penal Code, sections 41-42 of the Indian Forest Act and Section 5 (2) of the Prevention of Corruption Act, 1947 for exporting 550 scants in excess on the authority of permit No. 200/81-82 after the expiry of the export permit and that too, to other stations than 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 mentioned in the permit and were acquitted by the learned Special Judge (Forests) on 15.6.2000. The case of the prosecution in nutshell as gathered from the judgment of the trial court is that during the course of investigation of FIR No. 17/1984 of Police Station Enforcement South Zone, Shimla, it came to the light that against permit No. 200/81-82 issued by Divisional Forest Officer, Rohru dated 3.1.1982 valid upto 3.2.1982 for 1558 scants equivalent to 2712 cft. of kail, the accused have exported 550 scants of timber in excess of the number of the scants permitted to be exported through the said permit and the timber was also transported from Summer Hill Railway Station after the expiry date vide railway receipts No. 019647 and 019650. The FIR was registered at Police Station Enforcement South Zone, Shimla. The matter was investigated in detail by Sh. Sunder Lal, Inspector, Sh. Mehar Singh Inspector and Gurdit Singh, Deputy Superintendent of Police. The challan was put up after the investigation of the matter. The prosecution has examined as many as 44 witnesses and also produced large number of documents to prove its case against the accused. The accused were examined under section 313 of the Code of Criminal Procedure. The learned trial court vide judgment dated 15.6.2000 acquitted the accused persons. Mr. Rajinder Dogra, Additional Advocate General has strenuously argued that the prosecution has proved its case and the judgment dated 15.6.2000 is not sustainable in the eyes of law. Mr. Ajay Kochhar and Ms. Yogita Dutta, Advocates appearing on behalf of the accused have supported the judgment dated 15.6.2000. I have heard the learned counsel for the parties and perused the record carefully. 3 The case of the prosecution in nutshell is that the accused Subhash Chand booked and transported 189 scants of timber vide railway receipts Ex.PW-5/A-7 dated 8.4.1982 from Shogi to Jagadhari and further accused have booked and transported the timber against railway receipts Ex.PW-9/A, Ex.PW-38/E, Ex.PW-38/F, Ex.PW-38/G and Ex.PW-41/A from Summer Hill to Subzi Mandi, Delhi, Jagadhari, Patiala, Dharampur and Kalka to the other stations not mentioned in permit No.200/81-82 by accused Amrit Singh and R.M. Dua. This according to the prosecution constitutes violation of rule 11 and 18 of the Himachal Pradesh Forest Produce Transit (Land Routes) Rules, 1978. Permit No.200/81-82 Ex.PW-4/A-1 was issued on 3.1.1982. It was extended up to 15.3.1982 vide Ex.PW-4/A-3. It was further extended upto 6.4.1982. It is evident from railway receipt Ex. PW-5/A-7 that the same was issued for 189 scants of kail on 8.4.1982 from Shogi to Jagadhari by Tara Chand consignor and Asha Ram Banta as consignee. The short issue to be decided by this Court is whether vide railway receipt Ex.PW-5/A-7, 189 scants had been booked by accused Subhash Chand after the expiry of the validity of the permit which was extended up to 6.4.1982. The prosecution has produced Sh. K.C. Nandwai, Vigilance Inspector. He has appeared as PW-8. He has deposed that he alongwith M.A. Siddiqui were deputed by the Director, Vigilance Railway Board New Delhi to check the record of the Railway Station Summer Hill, Shogi and Dharampur in connection with the irregularity committed by the railway staff. He had submitted the inquiry report Ex.PW-37/A and Ex.PW-37/B. According to him railway receipt Ex.PW-5/A-7 was issued by accused Subhash Chand from Shogi to Jagadhari after the expiry of the extended period. In his cross-examination, Sh. K.C. Nandwani has stated that allotment of wagons is not within the control of the Station Master and 4 these are allowed from DRM’s office on priority basis and validity of the permit is to be seen at the time of booking of the goods and not at the time of transportation. He has further deposed in his cross-examination that it could be ascertained from the priority register as to who has accepted the goods and according to him that register was not checked by the team. He further stated that no irregularity was detected except transportation of excess timber from Summer Hill Railway Station and he has shown his inability as to when the timber of Ex.PW-5/A-7 was booked or registered. PW-40 M.A. Siddiqui has checked the record of the booking station alongwith K.C. Nandwani. He has deposed that after forwarding note is tendered and accepted, the first entry is made in the priority register and fee is realized and he has admitted that from the priority register it could be ascertained as to who has accepted the forest goods and made the entry in the priority register and on which date. It is thus evident that after tendering the indent, first entry is made in the priority register and after realizing the fee, demand for supply of wagon is made to the DRM’s office and the same is supplied on priority basis. The team has not checked the priority register and he has shown his inability as to who has accepted the goods for booking and made the entries in the priority register and on which date and by whom. It has come in the evidence led by the prosecution that booking of the timber and issuance of the railway receipts are two difference things. The railway receipt is issued after the goods are loaded in the wagon by the consignor or his agent. The prosecution has failed to establish that forwarding note of the railway receipt was accepted by Subhash Chand after the expiry of the export permit since K.C. Nandwani has made clear that the validity of the permit is to be seen at the time of the registration and not afterwards. Consequently, the prosecution has failed to prove that railway receipt Ex.PW-5/A-7 for 189 5 scants had been booked by Subhash Chand after the expiry of the export permit. The next question which has fallen for consideration whether the timber of permit No. 200/81-82 has been sent to the stations not mentioned in the permit. Sh. K.C. Nandwani has deposed that timber could be booked only to the station mentioned in the permit and he had tendered the inquiry report Ex.PW-37/A to the Director Vigilance. He has stated that he has mentioned in his report that he has conducted the inquiry on the basis of the clarifications sought from the Chief Conservator of Forests, Shimla and according to the clarification contained in para 2 of his report, no forest produce can be booked from Summer Hill or any other station which is not included in the export permit. In his cross- examination, he has admitted that he did not investigate whether the instructions issued by the office of Chief Conservator of Forests were notified to the concerned railway station through the Railway Authority. He did not check this aspect from the railway station. He has also deposed that any restrictions imposed by the Central or State Government on the transportation or movement of any articles are known as civil restrictions and these are to be notified to the railway official as per Rule 1465 of the Railway Commercial Manual Volume-II. It is evident that the restrictions, if any, will not be binding on the railway staff unless and until notified by the railway authorities. M.A. Siddiqui has stated that he did not check whether these clarifications were ever notified to the station master or not. He did not find such notifications in the record of Summer Hill, Railway Station and Shogi Railway Station during the checking of the record. He has admitted that on the basis of permit No. 200/81-82 Ex.PW-2/A-24 copy of which is Ex. PW-4/A-1, timber could have been booked from Soghi and Dharampur to any other places outside Himachal 6 Pradesh. Sh. K.C. Nandwani and M.A. Siddiqui have admitted that timber of permit could be booked from Shogi and Summer Hill Railway Stations to any other place outside Himachal Pradesh. PW-25 Shri P.K. Khullar has also supported the version of Shri K.C. Nandwani and M.A. Siddiqui. Thus there is no irregularity as canvassed by the prosecution. The prosecution has not placed on record the register and its copy to establish whether the timber was booked by the accused or someone else and booking of the timber and issue of railway receipts are two distinct things. It was for the prosecution to prove that the timber was booked by the accused and none else. The other aspect which has to be gone into by this Court is whether excess timber had been exported than mentioned in the permit No. 200/81-82. It is the case of the prosecution that permit No. 200/81-82 Ex. PW-4/A-1, its copy Ex.PW-4/A-24 was issued for 1558 scants of kail equivalent to 2712 cft. and accused had transported excess timber from Railway Station, Summer Hill and Shogi on the basis of 12 railway receipts. M/s Tara Chand and Company was permitted to transport 1558 scants of kail equivalent to 2712 cft. Against 12 railway receipts, 1465 scants plus 1 BC vide railway recxeipt Ex.PW-41/A-6 and Ex.PW-38/E have been transported from Railway Station, Summer Hill and Shogi to Jagadhari. The size of each scant was not mentioned in the permit. Ex.PW-38/A to Ex.PW-38/G, Ext. PW-41/A-6, railway receipt Ex.PW-5/A-2 to Ex.PW-5/A-4 and Ex.PW-5/A-7 are the railway receipts vide which scants have been transported by the accused from Summer Hill and Shogi Railway Stations to outside Himachal Pradesh. Two railway receipts Ex.PW-38/A and Ex. PW-38/D for 73 and 239 scants had been issued from Summer Hill to Subzi Mandi Delhi, one railway receipt Ex.PW-38/C for 30 scants from Summer Hill to Kalka, one railway receipt Ex.PW-38/G, 7 16 scants from Summer Hill to Patiala. Three railway receipts Ex.PW- 38/E, Ex.PW-38/F and Ex.PW-41/A-6 for 339 scants 1 BC from Summer Hill to Jagadhari and 4 railway receipts Ex.PW-5/A-2 to Ex.PW-5/A-4 and Ex.PW-5/A-7 for 241, 285, 24 and 189 scants from Shogi to Jagadhari had been issued. Thus 1465 scants with 1 BC timber and 1 BC had been booked but the volume of these scants exported has not been mentioned specifically. PW-37 K.C. Nandwani and PW-40 M.A. Siddiqui have admitted in their cross-examination that to avoid uneven loading and to use the wagon to its full capacity, scants are cut into pieces and in that eventuality the number of scants would increase. It is also admitted by these witnesses that the timber is always measured in cft. and any piece of timber irrespective of its size is called ‘scant’. Sh. K.C. Nandwani has admitted in his cross-examination that he had mentioned excess booking of the timber of 550 scants in his report on the basis of the extended permit and he could not tell the number of the railway receipts through which these scants have been sent and he has categorically admitted that if the permit is for 1558 scants then there is no excess timber and has further stated that there is no irregularity regarding excess and irregularities committed by the station master and admittedly permit Ex.PW-4/A-1 and its copy Ex.PW-2/A-24 had been issued for 1558 scants. Thus the prosecution has proved that 1465 scants had been exported on this permit. However, the timber booked by railway station through railway receipt as 1 BC has not been proved by the prosecution as to how much quantity of timber was booked through these railway receipts. Only four railway receipts Ex.PW-38/A for 73 scants, Ex.PW- 38/B for 29 scants and Ex.PW-38/C for 30 scants and Ex.PW-41/A-6 for 1 BC had been issued by Amrit Singh. The prosecution has failed to establish that R.M.Dua, Bali Ram Parsad, Nathu Singh, Subhash Chand 8 and D.R. Saini had issued and booked the timber at the instance of accused Amrit Singh. The prosecution was bound to lead evidence whether cft. volume mentioned in the permit remained the same or increased or decreased at the time of export. If the volume of the exported scants did not exceed than mentioned in the export permit, the accused cannot be held guilty. The prosecution case was also that accused Bhupinder Singh and Attar Singh have opened account in the name of fictitious firm in Punjab and Sind Bank, Shimla and with the help of Avtar Singh who was Munshi of accused Bhupinder Singh and Attar Singh issued 3 bills in the name of Gopal Singh and sons and as such they in connivance with other accused misused permit No. 200/81-82 and without his consent transported the timber from railway station. PW-24 is the sole proprietor of the firm Tara Chand and Company and permit No. 200/81-82 was issued in his favour. He sold the timber of this permit to M/s. Asha Ram and Sons, Yamuna Nagar. In his examination-in-chief, he has denied that Bhawani Singh Rana was known to him, but the case of the prosecution is that Bhawani Singh Rana, a forest contractor, purchased standing trees from the villagers of Tikari and alongwith application an affidavit and agreement submitted the same to the office of Divisional Forest Officer seeking permission for marking and demarcation and obtained the felling permission and thereafter Bhawani Singh Rana sold the standing trees to M/s Tara Chand and thereafter PW-24 Tara Chand carried out the felling operation and converted 153 kail trees in 1558 scants equivalent to 2712 cft. and obtained permit No. 200/81-82 from the office of Divisional Forest Officer, Rohru and thereafter the permit was extended upto 6.4.1982. But this witness had changed the complexion of the prosecution by stating that Bhawani Singh Rana was not known to him. He has stated in his cross- 9 examination that he never came to Shimla in connection with the timber business of permit No. 200/81-82 and his Munshi/agent used to send the timber from Railway Station Shogi to Yamuna Nagar. It has come in his evidence that only Dhan Singh and Hira Lal were his agents and he has also admitted that Rawanas Ex.PW-3/A-1 to Ex.PW-3-8 belonged to his firm and these had been consigned by Dhan Singh and other Munshis. It is thus evident that various Munshis were working for him and they used to book the timber from Railway Station Shogi to Yamuna Nagar but none of his Munshis/agents, namely, Dhan Singh etc. have been examined to show that they have not sold the timber of this permit to other persons except Asha Ram. These were important witnesses and should have been examined by the prosecution. PW-32 Ramesh Kumar has turned hostile and the prosecution could not prove that besides kail scants, deodar scants had been booked and transported on the basis of permit No. 200/81-82 on 12 railway receipts. The prosecution has failed to prove that excess timber had been transported on the basis of permit No. 200/81-82. The trial court on the basis of the correct appreciation of ocular as well as documentary evidence has rightly acquitted the respondents/accused. In view of the aforesaid reasons, there is no merit in this appeal and the same is dismissed. The bail/surety bonds furnished by the respondents are discharged. 19.8.2008 (Rajiv Sharma ), J. *awasthi*