JUDGMENT Arun Kumar Goel, J. (Oral): Respondent was prosecuted in the court below for having allegedly committed offences under Sections 3791. P.C. and section 4 and 14 of H.P. Resin and Resin Products (Regulation of Trade) Act, 1981 (hereinafter referred to as the Act of 1981), for having allegedly committed the theft of 116 tins of resin carrying those un-authorised. 2. Prosecution case in brief against there respondent was that on 10.6.1988 at about 5 A.M. a raiding party which was headed by Makhan Singh, A.C.F. (PW-1) found truck bearing registration No.HPK-5117 parked in Gharni Khad near village Kathiari (Baduhi). On checking it was found that some fresh resin was struck in the body of this truck when it was transported in the truck which had been used for the theft and illicit carriage of the resin. On further search it was found that 116 tins of resin were found lying near the house of respondent. Respondent was the driver of the vehicle at the relevant point of time which fact is even admitted by owner of the truck, namely PW-8 Som Nath, though he was declared hostile as he did not support the prosecution case, It is farther revealed from the prosecution case that the respondent could not be apprehended at the spot as he had fled away along with the laborers. 3. Out of 116 tins of resin which were recovered as aforesaid, 52 were bearing mark No.9/88 (Pvt), 4 had No. H.P.F.C. mark, whereas rest was without any identification mark. P.W.3 B.S. Pathania, Deputy Ranger who was also one of the members of the raiding party sent an application Ex.PW3/A to S.H.O., Amb, after receipt whereof investigation was undertaken by the latter. Since it was revealed during the course of investigation that the offence had been committed within the jurisdiction of Police Station, Bangana as such on 30.8.1988, S.H.O., Police Station, Amb sent an replication Ex.PW3(B) along with relevant papers to S.H.O., Police Station, Bangana where FIR. No. 45/88 came to be registered. On completion of the investigation, challan was filed in court by the police and respondent pleaded not guilty to the charge that was framed against him. After conclusion of the trial, respondent has been acquitted, hence this appeal at the instance of the state. 4. No. 45/88 came to be registered. On completion of the investigation, challan was filed in court by the police and respondent pleaded not guilty to the charge that was framed against him. After conclusion of the trial, respondent has been acquitted, hence this appeal at the instance of the state. 4. So far matter relating to theft of resin is concerned, charge against the respondent was that he had dis-honestly removed 116 tins of the Forest Department without its consent and thus he had committed the offence of theft, punishable under Section 379 of the I.P.C. 5. In this context, it may be appropriate to notice that no complaint had been lodged by H.P. Government Forest Department, H.P. State Forest Corporation Ltd. or any other private-contractor regarding the theft of the resin in question. In these circumstances, it is not understood as to how and on what basis respondent was prosecuted and then charged for offence under Section 379 IPC. In order to bring home the offence under Section 379IPC a duty was enjoined upon the prosecution to have proved that the respondent had dis-honestly taken the resin in question out of the possession of another person without his consent and consequently had removed those tins. Firstly, there was no complaint and secondly there is no evidence as noticed herein- above as such, respondent having been challened for this offence and his consequential being charged and prosecuted for it is without any basis and it is held accordingly. 6. Now the next question that has to be determined in this case is that whether the respondent -in fact was found to have violate the provisions of Act of 1981 in any manner whatsoever or not. For examining this aspect of the case prosecution evidence needs to be referred to briefly. Complaint has been lodged by PW-3 vide Ex.PW3/A with the police. No doubt after coming into force of the Act of 1981 neither any one could sell nor purchase resin save and except by the Government or its authorised agent. It is admitted case of the prosecution that respondent was not found cither in conscious or otherwise in possession of the tins of resin in question. It has further not been shown that the place from where the tins were recovered was in possession of the respondents and/or he had exclusive control over such place. It is admitted case of the prosecution that respondent was not found cither in conscious or otherwise in possession of the tins of resin in question. It has further not been shown that the place from where the tins were recovered was in possession of the respondents and/or he had exclusive control over such place. On the other hand PW-1 has admitted that it was the people who had told him that the respondent had brought the resin in question. At the same time it is also admitted that the respondent was not the owner of the truck and he was not available as according to him on seeing the raiding party respondent had fled away from the spot. Simply because resin had been recovered from an open place below a bud tree, it cannot be said that prosecution has been able to connect and or prove the recovery of such. tins from conscious possession of the respondent. There is ho evidence either direct or circumstantial to show that the respondent had anything to do with the recovery of the 116 tins of resin. On the other hand, there is evidence of PW6 Jaswant Singh that the tins were lying at a distance of 30/35 meters from the house of the respondent at an open place when he had visited the spot on 11.6.1988. Simply because fresh resin was found struck inside the body of the truck, it cannot be taken to be a ground so as to connect the respondent with either having transported and/or being the conscious possession thereof. In fact charge ought not to have been framed by the court below against the respondent. Other evidence is not of much significance in this case. In case theft of resin had been committed from Government forest, Forest Department was bound to complain in that behalf. Similarly, if it had been stolen from die depot of H.P. State Forest Corporation, then complaint was bound to be there after the shortage had been noticed and in no case private contractor would have kept mum had theft taken place from the stocks of such privet forest contractor 7. Similarly, if it had been stolen from die depot of H.P. State Forest Corporation, then complaint was bound to be there after the shortage had been noticed and in no case private contractor would have kept mum had theft taken place from the stocks of such privet forest contractor 7. Even otherwise prosecution of the respondent under the Act of 1981 was not maintainable, inasmuch as, that Section 16 of the said Act prosecution could only be launched at the instance of either Range Officer or such other officer who was authorised by a special or general notification under the Act. There is nothing on the file to show and nothing could be shown by Sh. Chauhan during the course of hearing of this appeal that PW-3 was either a Range Officer or had been duly authorise by a special/general notification to launch prosecution under H.P. Resin and Resin Products (Regulation of Trade) Act, 1981. So on this ground also the prosecution case must fail. 8. Another reason to discard the prosecution case is that as per PW- 1 people had informed the raiding party that resin in question belongs to the respondent. Who were such persons have firstly not been named by the witness and secondly these persons have not been examined. In these circumstances, the evidence of PW-1 who was heading the raiding party remains hear say evidence and was not admissible in evidence. In this behalf it may be appropriate to also mention that the statement of Witness is hit by Section 60 of the Evidence Act. This section is relevant for the purpose of present appeal as it lays down that oral evidence must in all cases whatever be direct that is to say if it refer to a fact which could be seen it must be evidence of a witness who says that he saw it In the instant case, there is no such evidence. If any authority in this behalf is required, reference can be made to a decision of Apex Court reported in case Vijender vs. State of Delhi, (1997) 6.SGC 171. 9. For the aforesaid reasons, prosecution of the respondent was totally un-warranted besides being un-called for. Thus acquittal ordered by the trial Court calls for no interference as the: is no infirmity therein which calls for interference in this appeal. 10. 9. For the aforesaid reasons, prosecution of the respondent was totally un-warranted besides being un-called for. Thus acquittal ordered by the trial Court calls for no interference as the: is no infirmity therein which calls for interference in this appeal. 10. Consequently, the appeal which is devoid of any merit is dismissed accordingly. Respondent is on bail, his personal and surety bond is hereby discharged. Appeal allowed