1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 125 of 2002. Date of decision: 31.3.2009 State of H.P. …….Appellant Vs. Kamal Nand & another ….. Respondents Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. A.K. Bansal, Additional Advocate General. For the Respondents : Mr. Rakesh Jaswal, Advocate. Kuldip Singh, Judge (Oral) The State has filed this appeal against the judgment of acquittal dated 21.9.2001 passed by learned Chief Judicial Magistrate, District Kinnaur at Recong Peo in Criminal Case No.1/3 of 1997 for offence punishable under sections 41,42 of the Indian Forest Act, 1927 ( for short Act) . 2. The prosecution case, in brief, is that on 4.5.1997 PW-3 Amarjit Singh SI along with other constables was present at Sangla. At about 8 p.m. they were near hotel of one Ram Chander where they noticed both the accused coming from Batseri side having bags on their person. On seeing the police party, the respondents started running back, they were however, over-powered and on search of bag of respondent No.1 Guchhi Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 weighing about 4 Kg. and 640 grams, being a forest produce, was recovered. On search of the bag of respondent Kewal Ram a scale along with weights of 100 grams, 50 grams, 20 grams and 10 grams were recovered. Guchhi after recovery was put in a plastic bag and sealed with seal ‘T’. The respondents could not produce any licence, permit to transport Guchhi, on completion of investigation challan was presented. The notice of accusation was put to both the respondents under Sections 41,42 of the Act. The respondents denied the accusation. The prosecution has examined three witnesses and placed on record some documents. The statements of respondents were recorded under Section 313 Cr.P.C., they denied the prosecution case but did not lead any evidence in defence. The learned Chief Judicial Magistrate acquitted the respondents, hence this appeal. 3. I have heard Mr. Anshul Bansal, learned Addl. Advocate General for the State and Mr. Rakesh Jaswal, learned counsel for the respondents and have also gone through the record. On behalf of the State, it has been submitted that the learned Chief Judicial Magistrate has not properly appreciated the evidence on record. The prosecution has proved the case against the respondents beyond reasonable doubt who were carrying Guchhi without licence, permit for the purpose of sale. The learned counsel for the respondents has supported the impugned judgment and prayed for dismissal of the appeal. 4. PW-1 HC Om Parkash has stated that he had received ruka on 4.5.1997, on which he made endorsement Ex.PW-1/A and recorded FIR Ex.PW-1/B. PW-2 Puran Chand 3 Guard has stated that on 4.5.1997 police personnel called him in the hotel of Ram Chand at Sangla. The police party was sitting in the hotel, at about 8 p.m. two persons along with bags came from Seri side and were going towards Sangla. They were stopped and checked. One of them told his name Kewal Ram but he does not remember the name of other person. On search from one bag Guchhi was recovered and from another bag scale and weights were recovered. Guchhi on weighment was found 4 Kg. 600 grams and was sealed with seal ‘T’ and taken into possession vide recovery memo Ex.PW2/A which is signed by him as well as by Ram Chand. A diary Ex.P-1 showing the weight and price of Guchhi was also recovered. They brought Guchhi from Batseri and were proceedings towards Rampur. Kinnaur and Rampur are in different Forest Divisions. Respondents were not having any permit. In cross-examination he has stated that copy of rules was not supplied by him. He does not have any proof except the statements of respondents that they were carrying Guchhi to Rampur. He does not know from whom Guchhi was taken at Batseri. PW-3 Amarjit Singh SI is the Investigating Officer, he prepared site plan Ex.PW-3/B. In cross-examination he has stated that he does not have any proof that forest produce was brought from forest. 5. The accusation against both the respondents is under sections 41,42 of the Act., section 41 authorizes State Government to make rules to regulate the transit of timber or other forest- produce. Section 42 provides penalty for breach of rules made under section 41. It has not been made clear by the prosecution 4 that respondents have violated which rules. The accusation has been put to respondents under sections 41,42 of the Act without mentioning violation of any specific rules. At the time of hearing of the case, learned Addl. Advocate General has submitted that the respondents were prosecuted under the transit rules which are none else but The Himachal Pradesh Forest Produce Transit (Land Routes) Rules, 1978. The contravention of said rules has been made penal under Rule 20. The respondents were not put to notice of the transit rules and in this way their defence was prejudiced. In addition, Rule 17 of the transit rules exempts the right holder for obtaining the pass to transport the forest produce within revenue estate where it was collected. The prosecution has failed to prove that respondents were carrying forest produce from one revenue estate to another revenue estate. The allegations of the prosecution that the respondents were transporting the forest produce from Batseri to Rampur have not been established. PW-3 Amarjit Singh SI has stated that he didn’t have any proof that the forest produce was taken by respondents from forest. The learned Chief Judicial Magistrate has rightly appreciated the material on record. There is no perversity in the impugned judgment, no case for interference is made out. Resultantly, appeal fails and is accordingly dismissed. Bail bonds discharged. ( Kuldip Singh) Judge March 31, 2009 (sks)