IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 552 of 1999 Decided on: 6.9.2010 State of H.P. ..…Appellant Versus Nathu Singh & Ors. ..…Respondents Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra, Addl. A.G. with Mr. Anil Jaswal, Dy. A.G. For the respondents : Mr. Ajay Kochhar, Advocate with Mr. Vivek Sharma, Advocate, for respondents No. 1,2 and 4. Ms. Seema Guleria, Advocate for respondents No. 3 and 5. R.B. Misra,J. (Oral) The present criminal appeal has come-up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted, in reference to the impugned judgment dated 31.7.1999, passed by learned Special Judge (Forest), Shimla, in Corruption Case No. 9-S/7 of 97/92, whereby respondents-accused have been acquitted for the 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 offences, under Sections 218, 420, 467, 468, 471, 120-B IPC read with Section 5(2) (1)(d) of the Prevention of Corruption Act, 1947 corresponding to Section 13(2) of the Prevention of Corruption Act, 1988, read with Section 41 and 42 of the Indian Forest Act and Rules 11/20 and 18/20 of the H.P. Forest Produce Transit (Land Routes) Rules, 1978. 2. The case of the prosecution is that Respondent- accused No. 1 Nathu Singh was Station Master Railway Station, Shogi in the year 1981-82. Respondent-accused No. 2 Subhash Chand was working as Assistant Station Master, Railway Station Shogi from 1989 to July 1982. Respondent-accused No. 3 Om Parkash Verma was working as labour Contractor, during the year 1981-82 doing loading and unloading contract work at Railway Station, Shogi. Respondent-accused No. 4 Murti Ram was Forest Contractor in the year 1981-82. Respondent- accused No. 5 Leela Dutt was working as Railway Contractor involving in the loading and unloading contract work. Respondent-accused Murti Ram being forest contractor had purchased 46 kail and deodar trees from the villages of Chak Katari, Naseri and Sari in forest Division Rohru and investigation in reference to FIR No. 19/84, dated 29.9.84 was made and it was revealed that M/S. Murti Ram Gian Chand forest contractor was issued permit No. 92/81-82 on 16.7.1981(valid up to 15.8.81) exported 679 scants from Railway Station, Shogi against the aforesaid permit number, instead of 583 scants and thereby 96 scants were found to have been exported in excess and thereafter another FIR No. 16/85, dated 26.4.85 was lodged for the offences as mentioned above. After 3 investigation, charge-sheet was submitted against the respondents-accused and case was committed to Special Judge (Forest), Shimla. 3. In order to prove its case, the prosecution examined as many as 36 witnesses, whereas the respondents-accused through their statements under Section 313 Cr.P.C. denied the prosecution case and examined two witnesses in defence. 4. On the basis of materials on record, facts and circumstances, five points were framed for determination as has been mentioned in the impugned judgment. 5. PW-1 Ram Parkash, Senior Assistant, PW-2 Daya Nand, Junior Assistant, PW-3 Devinder Singh , Forest Guard, PW-4 Daya Ram, Deputy Ranger, PW-5 K.C. Nandwani, Vigilance Inspector in Railway Board (retired), PW-6 Kedar Nath,Patwari, Patwar Circle, Kaloti, PW-7 Gopi Chand, Dy. Ranger, PW-8 Jagan Nath, Niab Tehsildar (retired), PW-9 Daulat Ram, Kanungo (retired), PW-10 J.S. Chauhan, A.C.F., wild Life Division, Shimla, PW-11 Mrs. Aruna Kapoor, Addl. District & Sessions Judge, Shimla, PW-12, Virenderjit Singh Sahai, Tehsildar (Urban), Shimla, PW-13 O.N. Vadhera, Station Master, Barara, Haryana, PW-14 O.N. Vadhera, Station Master, Barara, Haryana, PW-15 Bihari Lal, Niab Tehsildar (Rural), Shimla, PW-16 S.U. Siddiqui, Commercial Inspector, Northern Railway, Sarahanpur, PW-17 D.R. Verma, Tehsildar Settlement, Shimla, PW-18 B.R. Kainthla, r/o village Karewthi, Tehsil Kumarsain, District Shimla (retired HAS), PW-19 Mangat Ram, Assistant Manager, State Forest Corporation, Nerwa Division, PW-10 D.P. Gupta, Addl. C.C.F. Wild Life, Shimla, PW-21 Amin 4 Chand, Sr. Clerk, PW-22 Constable Prakash Chand, PW-23 Dy. S.P. Sunder Lal, PW-24 V.P. Jain, Ex.Supdt. D.R.M. New Delhi, PW-25 S.R. Masson (retired D.F.O.), PW-26 Padam Dass, Deputy Ranger, PW-27 Jang Bahadur Chief Goods Clerk, PW- 28 Ranjan Kumar Jain, Senior Divisional Operations Manager, PW-29 Inspector Kuldip Kumar, PW-30 Inspector Anup Singh, PW-31 Dy. S.P. Dhian Singh, PW-32 Surjit Singh, PW-33 Gurdit Singh, PW-34 Krishan Lal, PW-35 Kuldeep Singh and PW-36 M.L. Sharma, Deputy GEQD, Shimla. DW-1 Gurcharan Singh working as Station Master at Railway Station, Soghi in the year 1982-83 and DW-2 Jagan Nath posted as Traffic Inspector of Kalka-Shimla railway in the year 1981-82 were examined by the respondents-accused. 6. It has already been argued on behalf of the State by Mr. Rajinder Dogra, learned Additional Advocate General that M/S. Murti Ram Gian Chand was allowed to export only 583 scants of kail and deodar equivalent to 1633.30 Cft. but on the basis of permit vide 4 RRs, he exported 679 number of scants and as such, exported 96 scants in excess and also exported 200 scants vide RR Ext.PG-5 on 24.12.81 after the expiry of the export permit which was not endorsed to the Railway Station. As such, it was clear violation of the H.P. Forest Produce Transit (Land Routes) Rules, 1978 and since permit was not endorsed to the Railway Station and excess timber was exported , thereby causing a loss to the state of Himachal Pradesh to the tune of Rs. 19,200/- and wrongful gain to themselves and the railway officials have abused their official position by preparing incorrect. 5 7. We have examined the prosecution witnesses and materials on record, we notice that there is no dispute that M/S. Murti Ram Gian Chand was issued permit Ext.PJJ for 583 scants, which was not endorsed to the Railway Station. Ext.PJJ is the export permit dated 16.7.81, issued in favour of M/S. Murti Ram Gian Chand by Divisional forest Officer, Rohru in respect of 583 scants equivalent to 1633.30 Cft. out of state of Himachal Pradesh from Summer Kot to Yamuna Nagar via Khara Pathar Dhalli, Dharampur and Parwanoo and the size of each scant was not mentioned in the export permit. Ext.PA(5), Ext. PA(5)1, Ext. PA(5)2 and Ext.PG(5) are four Railway Receipts vide which the scants have been exported from the railway Station Shogi to Yamuna Nagar and vide these four RRs, 679 were booked for being export to Yamuna Nagar. But the prosecution has not been able to prove that 679 scants exported by respondents-accused has exceed the volume mentioned in the export permit Ext.PJJ. 8. PW-5 K.C. Nandwani and PW-14 O.N. Vadhera have categorically admitted that some times scants are cut into pieces to avoid uneven loading. DW-1 Gurcharan Singh has deposed that uneven loading between Kalka-Shimla narrow gauge was not permissible and in order to avoid the uneven loading, some times the scants are cut into pieces to fill up the gap in the wagon. Similarly, DW-2 Jagan Nath has also stated that in order to main the balance of the wagon at the time of loading and extra scants may be adjusted in middle of the wagon to fill up the gap by cutting the scants into pieces. Such statements of DWs-1 and 2 remain un-rebutted. Though, specifically no 6 particular evidence were presented to certify about cutting of scants into pieces, how, statements of DWs-1 and 2 remain un- rebutted. In the facts and circumstances, the learned Special Judge had accepted that scants increased from 583 to 697 due to cutting of scants into pieces in order to keep proper loading in the wagon. 9. Learned Special Judge has also noted in the impugned judgment as below:- “the timber in excess was exported. It may be noticed here that initially export permit No. 92/81-82 Ext.PJJ dated 16.7.81 valid up to 15.8.81 was issued for 583 scants and from the perusal of RR Ext.PA(5) dated 10.8.81 for 193 scants, Ext.PA(5)/1 dated 11.8.81 for 190 scants, Ext.PA(5)2 dated 12.8.81 for 96 scants, total 479 scants were transported and these three RRs within the validity period i.e. 15.8.1981 and this permit was further extended by DFO Rohru vide Ext.PXXX/D/A for 229 scants and the same was valid up to 31.12.1981 and this 0065tension of permit No. 92 was issued on 16.12.81. therefore, on the authority first export permit Ext. PJJ which was issued for 583 scants in favour of M/S. Murti Ram Gian chand was within his right to export 583 scants but instead 479 scants were exported on 3 RRs. The balance timber which remained to be exported was 104 scants. Therefore, the D.F.O. was required to issued extension of permit No. 92/81-82 for 104 scants but the reason best known to him, DFO Rohru had 7 issued export permit for balance timber for 229 scants and after the extension of export permit No. PJJ, Murti Ram had exported 200 scants vide RR dated 24.12.81, though, its extension was for 229 scants. Therefore, it cannot be said that on extended permit, he has exported excess timber.” 10. After going to the testimony of PW-5 K.C. Nandwani it appears that he conducted inquiry about the irregularity in booking of the goods by the railway officials at the railway station, Shogi and during inquiry notification of Himachal Pradesh Government regarding export of timber outside Himachal Pradesh prevailing at the relevant time was in operation. During inquiry PW-5 had notice that export of timber beyond the route as prescribed in the export permit was irregular and during the checking of the record he PW-5 came to the conclusion that permit was not endorsed to the Railway Station Shogi. However, in cross-examination, PW-5 has admitted that booking of the goods through Railway Station has been done as per the provisions of the Railway commercial Manual Volume-II and PW-5 has further admitted that any restriction imposed by the Central or State Government are called the civil restrictions and these restrictions are imposed on the Railway Officials under Rule 1465 of the Railway commercial Volume-II. PW-5 in cross-examination stated that he did not investigate whether the restrictions/clarifications were notified to the Railway Station or not, therefore, the Railway officials are 8 not bound by the clarifications/restrictions of any of the State Government, unless notified by the Railway Administration. 11. PW-16 S.U. Siddiqui, another employee of the Railways in his cross-examination has stated that any clarification or circular was not issued regarding the articles being restricted. In absence of any restrictions or clarifications or circular the railway officials were free to allow the transport to facilitate the transportation. 12. The perusal of export permit reveal that on the foot of the export permit it has been indicated that in case forest produce booked by rail from any railway station, the concerned railway station Master may please endorsed on the back of the pass the quantity of forest produce so booked alongwith the date and destination so as to facilitate the further checking. Rule 11 of the Transit Rule deals with prohibition on transport of forest produce which require that no person shall transport or cause to be transported without valid pass from the concerned Divisional Forest Officer or any other officer so authorized. The provision could indicate that a person who comes for transport of any forest produce by land route, must possess a valid pass issued by the forest department and similarly when the forest produce is to be transported by the railway or any other railway station, it must be covered by a valid pass issued under the rules prevalent. Since Ext.PJJ was issued under the provision of Transit Rules and there was no restriction or any circular or instruction was issued by the Central Government and if there was restriction and same was not endorsed to the Station Master, Railway Station through the Railway Authority, the 9 Station Master is not bound by such instructions, as such, and in that eventuality he is within his right to book the timber from the railway station to outside Himachal Pradesh on the authority of the permit. 13. On the analysis of the prosecution witnesses, materials on record and totality of facts and circumstances, it was inferred by learned Special Judge that respondents-accused were not guilty of offences of Rules 11/20 and 18/20 of H.P. Forest Produce Transit (Land Routes) Rules, 1978. In our considered view, learned Special Judge (Forest) has rightly concluded that in the facts and circumstances, prosecution has failed to bring home the guilt of the respondents-accused. There is no scope of any interference with the judgment of the acquittal. Accordingly, the appeal being devoid of any merit is, therefore, dismissed. 14. Bail bonds, furnished by the Respondents-accused, are hereby discharged. (R.B. Misra), Judge. September 6, 2010 (V.K. Sharma), Judge. (vs)