IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 599/2001 Reserved on:8.8.2008 Decided on: 19.8. 2008 State of Himachal Pradesh. …Appellant. Versus Kameshwar 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 General. For the Respondents : Mr. Ajay Kochhar, Advocate for respondents No.2 &3. Rajiv Sharma, J. The respondents were prosecuted in Corruption Case No. 13-S/7 of 1997/94 in the Court of Special Judge (Forests) Shimla under sections 379,420 and 120-B of the Indian Penal Code, Sections 41 and 42 of the Indian Forest Act, under rule 18/20 of the Himachal Pradesh Forest Produce Transit (Land Routes) Rules, 1978 and section 5 (2) of the Prevention of Corruption Act, 1947. They were acquitted by the learned Special Judge (Forests) on 28.6.2001. The present appeal has been filed by the State against the judgment dated 28.6.2001. 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 The case of the prosecution in nutshell as gathered from the judgment of the trial court is that respondent No.1 was granted export permit No. 202/82-83 dated 29.4.1982 valid upto 15.5.1982. The same was granted for export of 1048 scants of deodar and kail from Kalontha to Yamuna Nagar via Khara Pathar, Dhalli and Shogi Railway Station. The permit was issued by the Divisional Forest Officer, Rohru after completion of all the formalities. He was granted another export permit No. 241/82-83 dated 16.1.1981 valid upto 31.1.1981 for the export of 961 scants of kail and deodar from Kalontha to Yamuna Nagar via Khara Pathar, Dhalli, Dharampur and Parwanoo. The further case of the prosecution was that excess timber was exported on these permits and the timber was also transported from Shogi Railway Station contrary to the instructions issued by the State Government. Mr. Rajinder Dogra, Additional Advocate General has strenuously argued that the prosecution has proved its case and the judgment dated 28.6.2001 is not sustainable in the eyes of law. Mr. Ajay Kochhar, Advocate appearing on behalf of the respondents has supported the judgment dated 28.6.2001. I have heard the learned counsel for the parties and perused the record carefully. For the clarity sake, the Court will deal with these two permits separately. Export permit No. 202/82-83 is Ex.PW-2/B (Ex.PW-25/A-21). It was valid from 29.4.1982 to 15.5.1982. The case of the prosecution is that 176 scants in excess than allowed to be exported under export permit Ex.PW-2/B have been transported. The prosecution has produced railway receipt Ex.PW-11/A dated 18.5.1982. This has been issued by respondent No.3. There is overwhelming evidence on record to prove that railway receipt PW-11/A was issued by respondent No.3. Railway receipt 3 Ex.PW-31/A, Ex.PW-31/C, Ex.PW-31/E, Ex.PW-31/F and Ex.PW-22/B had been issued by respondent No.2. Respondent No.1 was permitted only to export 1048 scants of deodar and kail of the volume of 2133.49 cft. vide export permit Ex.PW-2/B. PW-5 Sh. K.C. Nandwani has deposed that respondent No. 1 has exported 84 scants in excess than allowed in the permit. However, as per the case of the prosecution, respondent No.1 has exported 1224 scants in place of 1048 scants i.e. 176 scants of timber in excess. Sh. K.C. Nandwani while appearing as PW-5 has stated that under railway receipt Ex.PW-31/E, 181 scants of timber were exported, however, as per the case of the prosecution 250 scants were exported under railway receipt Ex.PW-31/E. As per prosecution case, 225 scants were exported under railway receipt Ex.PW-34/C, however, PW-5 has stated that only 202 scants were exported under railway receipt Ex.PW- 31/C. There is no explanation made by PW-5 Sh. K.C. Nandwani as to how he has determined that 202 scants were exported under railway receipt Ex.PW-30/C instead of 225 scants and how he reached the conclusion that 181 scants were exported under railway receipt Ex.PW- 30/E instead of 250 scants. According to PW-5, 1132 scants were exported under the export permit Ex.PW-2/B instead of 1048, however, as per the prosecution case 1224 scants were exported under export permit instead of 1048 scants. The variance in the figures given by the prosecution and PW-5 has not been explained at all by the prosecution. PW-5 has also produced Ex.PW-5/A i.e. vigilance report consisting of 63 pages, including Annexures. The number of scants exported under railway receipt Ex.PW-31/C and Ex.PW-31/E have been stated 202 and 181 respectively in Annexure Ex.PW-5/C which is in contradiction with the case of the prosecution. In Ex.PW-31/A, Ex.PW-31/C, Ex.PW-31/E and Ex.PW-31/F, the number of scants exported have not been mentioned 4 specifically, but the timber exported has been shown as one B.C. and number of scants have been written 210, 225, 250, 231 respectively by way of over-writing. This over-writing has not been explained. In order to support the case of the prosecution, Sh. Bharat Bhushan has appeared as PW-24. He has relied upon the entries made in the ledger and cash book. These ledger and cash book have not been produced before the trial court. It has further come in the evidence of PW-5 Sh. K.C. Nandwani that when the timber is loaded in the wagon, sometimes, scants are cut into pieces to avoid uneven loading and that for railway purpose every piece of timber, irrespective of its size is treated one piece. The prosecution has not made endeavour to establish by leading cogent and reliable evidence that volume of timber that had been exported was in excess of the volume mentioned in export permit Ex.PW-2/B. The timber used to be entrusted to the railway authorities through forwarding notes. The prosecution has proved in evidence forwarding notes Ex.PW-42/H-7 to Ex.PW-42/H-12 but number of scants entrusted for transportation is not mentioned in all them. Thus it cannot be presumed that more scants of timber were presented for export under the forwarding notes. The prosecution has also not established that respondent No.2 and 3 had mentioned wrong number of scants on the railway receipts because in the railway receipt Ex.PW/1/A, number of scants had been mentioned as 100 and in railway receipt Ex.PW-22/B, number of scants had been mentioned as 208. In other railway receipts, the Railway Authorities had mentioned one BC of scants and the prosecution has failed to prove actual number of scants exported under the rest of the railway receipts. Now, the Court has to see whether any excess timber was exported vide permit No. 241/80-81 dated 16.1.1981. This permit was granted on 16.1.1981 valid upto 31.1.1981. The respondent was allowed 5 to export 961 scants of kail and deodar of the volume of 2039.80 cft. from Kalontha to Yamuna Nagar via Khara Pathar, Dhalli, Dharmapur and Parwanoo. Prosecution has produced and proved in evidence railway receipts Ex.PW-20/B, Ex.PW-20/C, Ex.PW-36/B, Ex.PW-11/D and Ex.PW- 11/C. Under these railway receipts the timber has been exported from Railway Station, Shogi to Jagadhari. The learned Additional Advocate General has argued that the timber could not be exported at all from Railway Station, Shogi in view of letters Ex.PW-35/A to Ex.PW-35/C. It is clear from the language employed in letter Ex.PW-35/A dated 1.8.1980 that statutory restrictions order issued by the State Government must be strictly followed. These instructions have not been produced in evidence. PW-35/B is dated 30.6.1981 and the timber under railway receipt was exported in the month of March, 1981. There is no evidence that letter Ex.PW-35/B and instructions contained therein were notified to the Station Masters before the export of the timber. The trial court has come to a right conclusion that the timber could be exported from Railway Station, Shogi on the basis of export permit Ex.PW-2/A-12 extended vide Ex.PW-25/A-18 inspite of the fact that the said export permit was not endorsed to the Railway Authority. In view of the aforesaid reasoning, there is no merit in this appeal and the same is dismissed. The bail/surety bonds of the respondents are discharged. August 19, 2008 (Rajiv Sharma ), J. *awasthi*