1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 147 of 2002. Reserved on 20.3.2009 Date of decision: 25.3.2009 Devi Singh & others …….Petitioners Vs. State of H.P. ….. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioners : Mr. Y.P.S. Dhaulta, Advocate. For the Respondent : Mr. Anshul Bansal, Additional Advocate General. Kuldip Singh, Judge This revision has been directed against the judgment dated 6.5.2002 passed by learned Sessions Judge, Bilaspur in Cr. Appeal No.32 of 1997, partly allowing the appeal, upholding the conviction of petitioners and two more namely Gawainu Ram and Govind Ram under Sections 41,42 of the Indian Forest Act, Section 120-B IPC and sentencing each of them to undergo simple imprisonment till the rising of the Court and maintained the fine awarded against them by learned trial Court on each count. 2. The prosecution case, in brief, is that in addition to petitioners, two more persons Gawainu Ram and Govind Ram were prosecuted under Sections 41,42 of the Indian Forest Act read with Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 Section 120-B IPC and they were convicted and sentenced by learned Chief Judicial Magistrate on 29.11.1997, to under go simple imprisonment for a period of six months and to pay a fine of Rs.500/- for offence punishable under Sections 41, 42 of the Indian Forest Act, in default of payment of fine, each of them was ordered to undergo simple imprisonment for one month, and they were further directed to undergo simple imprisonment for a period of six months for offence punishable under Section 120-B IPC. 3. The further prosecution case is that on 6.4.1991, PW-15 Brij Mohan Dy. Superintendent of Police, Enforcement Southern Zone, Shimla along with ASI Kishori Lal, constable Hem Singh and PW-3 Mangat Ram, Range Officer Enforcement was travelling to Bilaspur in the official car. At Bilaspur, PW-15 had received a secret information that Gawainu Ram forest lessee was transporting berberry roots in five trucks in excess of the quantity, for which permit has been issued. On this information, PW-15 along with forest officials namely Bakshi Ram, PW-1 Lekh Ram, forest guard intercepted the trucks around 6 p.m. when they were coming from Mandi side loaded with berberry roots. The five trucks were weighed at Resin Turpentine Factory, Bilaspur. On checking it was found that truck No.HID-811 which was being driven by Gopal Singh was carrying 31 qtls. 80 Kgs. in excess of quantity as prescribed in challan No.14, truck No.HP-32-0793 which was being driven by Govind Ram was found to be transporting 26 qtls. berberry roots in excess of quantity as provided in challan No.12, truck No.HID-4525 which was being driven by Roop Lal was carrying 37 qtls. 80 Kgs. in excess of quantity permitted by challan No.13, truck No.HIB-1521 3 which was being driven by Puran Chand was found carrying 37 qtls. 20 Kgs. berberry roots in excess as per challan No.15, truck No.HID- 721 which was being driven by Devi Singh was carrying 37 qtls. berberry roots in excess of quantity as prescribed in challan No.16. 4. The prosecution case is that as against 250 qtls. berberry roots Gawainu Ram was carrying 419 qtls. 80 Kgs. of berberry roots. The berberry roots were taken into possession vide memo Ex.PW-1/A to Ex.PW-1/E. Later on the berberry roots were again weighed in view of order dated 16.10.1991 of learned Addl. Sessions Judge, Shimla and on weighment the total weight was found to be 264 qtls. 40 Kgs. On completion of investigation challan was presented. The petitioners were charged under Section 120-B IPC and Sections 41, 42 of the Indian Forest Act for violation of H.P. Transit (Land Routes) Rules, 1978 ( for short transit rules) . The petitioners did not plead guilty and claimed trial. The prosecution has examined 15 witnesses and placed some documents on record. The petitioners were examined under Section 313 Cr.P.C. They denied the prosecution case. The learned Chief Judicial Magistrate convicted the petitioners and two more, on 29.11.1997. In appeal the learned Sessions Judge on 6.5.2002 maintained the conviction but modified the sentence, hence this revision by four accused except two accused namely Gawainu Ram and Govind Ram. 5. I have heard Mr. Y.P.S. Dhaulta, learned counsel for the petitioners and Mr. Anshul Bansal, learned Addl. Advocate General for the State and have also gone through the record. Mr. Dhaulta, on behalf of the petitioners has stated that petitioner 4 No.1 Devi Singh had died. He has submitted that in the transit rules, no quantity has been mentioned and therefore, even if, it is found that petitioners were transporting forest produce in excess of the quantity mentioned in the permits in that case also it cannot be said that petitioners have violated transit rules and have committed an offence punishable under Sections 41, 42 of the Indian Forest Act read with Section 120-B IPC. The learned Addl. Advocate General has submitted that the two Courts below after due appreciation of the material on record have recorded a finding of fact against the petitioners. On behalf of the petitioners no illegality and impropriety in the impugned order has been pointed out. In revision the evidence cannot be re-appreciated. He has supported the impugned judgment. 6. At the time of the hearing of the revision the fact that petitioners were found transporting berberry roots in the trucks when those were intercepted on 6.4.1991 has not been questioned nor it has been questioned that the petitioners and two others were transporting 419 qtls. 80 Kgs. berberry roots. The prosecution case is that as per export permit No.53/90-91 dated 13.3.1991 Ex.PW- 15/B, Gawainu Ram was authorized to transport 1200 qtls. berberry roots upto 12.4.1991. PW-5 Durga Dass, forest guard has stated that he remained posted at Chail Chowk from April 1990 to July 1991 and as per Permit No.53/90-91 Gawainu Ram was permitted to export 1200 qtls. berberry roots. He had already exported 900 qtls. and only 300 qtls. were left for exporting. He brought the balance berberry roots in five vehicles. The permit Ex.PW-15/B is clear to the effect that Gawainu Ram was permitted to transport 1200 qtls. 5 of berberry roots and before 5.4.1991 according to PW-5, Gawainu Ram had already transported 900 qtls. of berberry roots. On 6.4.1991 he was found transporting 419 qtls. 80 Kgs. of berberry roots. Therefore, the transportation of the berberry roots by Gawainu Ram in connivance with other petitioners is in violation of transit rules and all of them have committed an offence punishable under Sections 41,42 of the Indian Forest Act and also Section 120- B IPC. The two Courts below have appreciated the material on record properly. The re-weighment of berberry roots on 16.10.1991 is of no consonance in as much as this re-weighment was done after more than six months and petitioners cannot take benefit of this re- weighment when the weight of berberry roots was found to be 264 qtls. 40 Kgs. in re-weighment. The submission of learned counsel for the petitioner that in the transit rules no quantity for export has been mentioned and therefore even if petitioners were found transporting berberry roots in excess of quantity mentioned in permit Ex,PW-15/B they have committed no offence, this submission is noticed only to be rejected. The quantity has not been mentioned in blank printed proforma of the transit rules. The quantity is to be mentioned in the actual permit to be issued by the prescribed authority. In the present case, such quantity was 1200 qtls. which has been specifically mentioned in Ex.PW-15/B. The two Courts below have rightly appreciated the material on record. The learned Sessions Judge has already taken a lenient view in reducing the sentence imposed by the learned trial Court. 7. No other point was urged. 6 8. The result of the above discussion, the revision petition is liable to be dismissed and is accordingly dismissed. ( Kuldip Singh) Judge March 25, 2009 (sks)