- 1 - IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 257 of 2004. Decided on: February 28, 2011. State of H.P. …Appellant Versus Roshan Lal & others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the appellant : Mr. Vikas Rathore, Dy. AG, with Mr. Ramesh Thakur, Asstt. AG. For the respondent Mr. Satyen Vaidya, Advocate. Surjit Singh, Judge (oral) State has appealed against the judgment dated 15.3.2004, of learned Special Judge, whereby respondents Roshan Lal and several other persons (some of whom have died), who were tried for offences, under Sections 379, 420, 411, 218, 468, 471, 120-B IPC, Section 5(2) (d) of the Prevention of Corruption Act, 1947 (hereafter referred to as Act) and Sections 41-42 of the Indian Forest Act, read with Rules 11/20 and 18/20 of the H.P. Forest Produce Transit (Land Routes) Rules, 1978, have been acquitted. 2. Case of the prosecution may be noticed. Enforcement Department of H.P., while investigating case FIR No. 2 of 1982, dated 1.6.1982, came to know that Whet her report ers of t he l ocal papers may be al l owed t o see t he j udgment ? - 2 - timber, in excess of the quantity permitted, vide permit No. 8 of 1982-83 (Ex.PW-46/C), had been booked with Summerhill Railway Station, because the weight of the loaded wagons indicated that it was in excess of the weight, which ought to have been there and, thus, there had been export of 4866 cubic feet excess timber, worth ` 9,73,200/-. The said permit Ex.PW-46/C had been issued in favour of M/S Shiv Lal Chain Ram. Respondents Shiv Lal and Chain Ram are the partners of the said firm. A case was, therefore, formally registered vide FIR 3 of 1984, copy Ex.PW-60/B. 3. Investigation of the case revealed that according to 10 Years Felling Programme, owners of some private forests in the area of Jhalta beat of Jubbal, could fell trees, of certain age. Those private persons sold rights of felling trees from their private forests to a firm, by the name of M/S Perma Nand Roshan Lal. Said firm further sold the right of felling and extraction of timber to M/S Shiv Lal Chain Ram. The firm applied to the concerned D.F.O. for felling permission. Forest Officer required the concerned Tehsildar to give demarcation in the presence of field forest staff and directed the forest field staff to mark the trees, which could have been felled under the Programme, on the basis of demarcation given by the revenue officials. 4. Demarcation was given by respondent Chet Ram, who was then a field kanungo. Trees were marked by Kagu Ram, Range Officer, who is now dead and some other - 3 - forest officials. Total number of trees, so marked, was 445. Trees were felled, which yielded 12,488 scants. The volume of those scants was 17,438.41 cft. Investigation further revealed that export permit was applied for by Shiv Lal and Chain Ram, for exporting the said timber. Permit was required to be issued by D.N.Machhan, Divisional Forest Officer. Permit was issued without verification and satisfaction that there was no felling on the adjoining government forests. Moreover, against the permit for 12,488 scants, 13,991 scants were exported through railways. Thus, 1503 scants, in excess of the permitted number of scants, were exported. Railway employees, i.e. respondent Amrit Singh and R.N. Dua, now dead, facilitated the export of more timber than permitted. It was also found that some scants were allowed to be exported by the above named railway employees, after the expiry of the validity of export permit. The timber, so exported by railways, was sold to timber merchants outside the State of H.P., through respondents Bhupinder Singh and his agent Attar Singh, also a respondent. Piare Lal Sudan, Range Officer facilitated the issuance of export permit, for more timber than actually yielded by the trees, standing on private land. 5. It was also found in the course of investigation that demarcation given by respondent Chet Ram, Field Kanungo, was incorrect. He gave wrong demarcation deliberately to help Shiv Lal and Chain Singh, to fell certain trees from adjoining government land. This came to light - 4 - when stumps of trees were found on adjoining government land. 6. On completion of investigation and after obtaining necessary sanctions from the disciplinary authorities of those of the accused, who were government servants, report under Section 173 Cr.P.C. was filed. Respondents and other persons, made co accused with them, who are now dead, were charged with offences, under Sections 379, 420, 411, 218, 468, 471, 120-B IPC, Section 5(2) (d) of the Act, and Sections 41-42 of the Indian Forest Act, read with Rules 11/20 and 18/20 of the H.P. Forest Produce Transit (Land Routes) Rules, 1978. On their pleading not guilty, they were put on trial. 7. A supplementary challan was filed and some more persons were named as accused, even though, by that time, majority of the prosecution witnesses, had been examined. Accused, named in the supplementary challan, were also charged and evidence was recorded afresh. 8. Respondents pleaded innocence. They denied having committed any illegality. Trial Court held that prosecution had not been able to prove its case beyond reasonable doubt and consequently, acquitted the respondents and other persons, made co accused with them, some of whom were still alive at the time of delivery of the judgment. - 5 - 9. I have heard learned Assistant Advocate General as also counsel, representing the respondents and perused the record. 10. The entire case of the prosecution is based on the allegation that trees, in excess of the trees marked on private land/ forests had been felled and that those excess trees (in excess) stood on the adjoining government land. To prove this allegation, prosecution examined PW-12 Jagan Nath, Naib Tehsildar, who carried out the demarcation of the private forests and the adjoining government land. Instruction of the government, with regard to demarcation of private land and adjoining government land, authorize only an Assistant Collector of the First Grade, to give demarcation. PW-12 Jagan Nath, who carried out the demarcation in this case, was an Assistant Collector of Second Grade only and hence not even competent to give demarcation. 11. Moreover, it has been held by this Court repeatedly that where in this kind of cases, demarcation given at the time of marking of the trees is alleged to be wrong, the same is required to be first set aside, by approaching superior revenue officer and unless that is done, no reliance can be placed upon subsequent demarcation, carried out during the investigation, to hold that the first demarcation was wrong or incorrect. Reason given by this Court is that demarcation is a quasi judicial process and so long as the first report is in existence, it - 6 - cannot be said to be wrong on the strength of a subsequent demarcation. Citations are State of H.P. v. Laxmi Nand and others, 1992 (2) Sim. L.C. 307 and Kamal Dev and another v. Hans Raj, AIR 2000 HP 130. This view has been upheld in several more judgments. 12. In view of the above stated position, it cannot be held that any tree was felled on government land and if that is so, it can also not be held that respondents Shiv Lal and Chain Ram were in possession of more timber, than extracted from the trees, marked and felled in private forests. 13. Next allegation of the prosecution is that though the export permit was in respect of 12,488 scants, as per railway receipts and other record, 13,991 scants had been exported and that the excess number of scants itself shows that some illicit felling had taken place or that at least timber, in excess of the quantity permitted to be exported, had been exported. It is true that as against 12,488 scants as mentioned in the export permit Ex.PW-46/C, 13,991 scants are proved to have been exported, but the explanation offered by the respondents, which is supported by the evidence of the prosecution witnesses themselves, namely PW-63 K.C.Nandwani and PW-84 M.A.Siddiqui, two inspectors of the railways, who inquired into the matter, is that while loading the timber in wagons, some time a few scants have to be cut into two or more pieces to adjust them in the wagon, to avoid rattling of timber when being - 7 - carried. This kind of plea, taken in a similar case, had been accepted by the Special Judge and endorsed by this Court. Particulars of that case are Nathu Singh & another v. State of H.P. and others, Criminal Appeal No. 175 of 1991, decided on 3.12.1996. This view has been affirmed in a number of cases, coming before this Court. 14. Allegation, that some timber was exported after the expiry of the validity period of the permit, is also not proved. It is true that some scants were dispatched in railway wagons from the station, after the period of the permit had expired, but there is no evidence, if the timber was carried to the railway station after the expiry period. As per prevailing practice and instructions, timber should reach the railway station before the expiry date. This fact has been testified by the prosecution’s own witnesses, namely PW-63 K.C.Nandwani and PW-84 M.A.Siddiqui, as also by PW-1 Sh. G.C.Madan, Chief Goods Supervisor. The witnesses have testified that timber is brought to the railways and booked for carriage. Thereafter, the station master sends requisition for wagons to the superior officers of the railway at Ambala and it takes quite a good number of days before the wagons are made available and it is only when the wagons reach the station that the timber is loaded. 15. In view of the above stated position, I find no merit in the appeal. The same is, therefore, dismissed. February 28, 2011 (PC) ( Surjit Singh ), J.