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Himachal Pradesh High Court · body

2000 DIGILAW 195 (HP)

PREM KUMAR MALIK v. STATE OF HIMACHAL PRADESH

2000-07-27

R.L.KHURANA

body2000
JUDGMENT R.L. Kkurana J,—The petitioner, hereinafter referred to as the accused, upon having been tried for the offences under Section 41/42, Indian Forest Act and under Sections 379, 467, 468, 471 and 420 Indian Penal Code in case No. 96/2 of 1997/91 based on F.I.R. No. 25/88 of Police Station, Enforcement (South Zone), Shimla (Ex. PW 32/A) stands convicted for the offences under Section 41/42 Indian Forest Act and under Sections 379, 471 and 420 Indian Penal Code, by the learned Judicial Magistrate 1st Class, Solan, vide judgment dated 16.3.1998 Upon such conviction, he has been sentenced as under:— Sr. No. Offence Sentence imposed 1. 41/42 Indian Forest Act Simple imprisonment for six months and fine of Rs. 2,000/-. 2. 379 Indian Penal Code Simple imprisonment for six months and fine of Rs. 2,000/-. 3. 471 and 420 Indian Penal Code Simple imprisonment for six months on both the counts and fine of Rs. 500/- for each count. 2. The three substantive sentences of imprisonment were ordered to run concurrently. In case of default in payment of fine, the accused was sentenced to undergo simple imprisonment for a period of one month on all counts. 3. The accused assailed the conviction and sentences imposed upon him by the learned Magistrate by way of an appeal before the learned Sessions Judge, Solan, Such appeal was dismissed on 5.8,1998 whereby the conviction and sentences were affirmed. 4. Feeling aggrieved, the accused is before this Court by virtue of the present revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure. 5. Briefly stated, the prosecution story is this. The accused is carrying on the work as a building contractor under the name and style of Messrs. A.K. Construction Company. The work of construction of a building of Dr. Y.S. Parmar University of Horticulture and Forestry at Nauni was undertaken by the accused. During the course of such construction, on the basis of some complaint, an enquiry was conducted by the officials of the Forest Department as to the timber being used by the accused in the construction of the building. The accused, during the course of such inquiry could not account for the timber used by him in the construction of the building. He is alleged to have stated during the inquiry that the timber was obtained by him from Messrs. The accused, during the course of such inquiry could not account for the timber used by him in the construction of the building. He is alleged to have stated during the inquiry that the timber was obtained by him from Messrs. John Mal Bansi Dhar and Shiv Singh of Kandaghat Timber to the extent of 80 eft. was alleged to have been obtained by him from Messrs. Kushal Construction Company. Certain bills are alleged to have been produced by the accused during such inquiry purported to have been issued by Messrs. Johri Mal Bansi Dhar, Messrs Bhatia Timber Traders and Messrs Jain Timber Corporation. The forest officials coud not get any clear picture from the records mentioned at the gate of the University. Checking of the records of Excise and Police barriers at Parwanoo revealed that no timber had been shown to have been transported by the accused. After conducting the inquiry, the forest department made a complaint Ex. PW 17/A to the police, on the basis of which a case for the offences under Sections 420, 467, 468, 471 and 120-B, Indian Penal Code, read with Section 15, Specific Corrupt Practices Act and 41/42 of the Indian Forest Act, came to be registered vide FIR No. 25 of 1988 with Police Station Enforcement (South Zone) Shimla. 6. During the course oMnvestigation, it was revealed that the accused had committed theft of the timber from Government Forest and had transported the same to Nauni without a valid export permit. The bills/cash memos produced by the accused during the course of inquiry/investigation were found to have been forged and used by the accused as genuine knowing the same to be forged for the purpose of cheating PW 9 Shri Satish Gupta, Forest Range Officer, during the course of inquiry. On completion of investigation, the accused was sent up for trial for the offences under Sections 420, 467, 468 and 471, Indian Penal Code and under Section 41/42, Indian Forest Act. 7. The accused was charged for the offences under Sections 379, 467, 468, 471 and 420 Indian Penal Code, and under Section 41/ 42, Indian Forest Act to which he pleaded not guilty and claimed to be tried. The prosecution in support of its case examined as many as 32 witnesses. 8. 7. The accused was charged for the offences under Sections 379, 467, 468, 471 and 420 Indian Penal Code, and under Section 41/ 42, Indian Forest Act to which he pleaded not guilty and claimed to be tried. The prosecution in support of its case examined as many as 32 witnesses. 8. The accused in his statement recorded under Section 313, Code of Criminal Procedure, while denying the prosecution story pleaded that the timber was purchased by him from one Shri Pandhi, who in turn had purchased the same from Messrs Johri Mal Bansi Dhar, as well as from Ayodhya Prashad. Two witnesses were examined in defence. 9. The learned Magistrate, on the basis of evidence coming on record while acquitting the accused for the offences under Sections 467 and 468, Indian Penal Code, convicted and sentenced the accused for the offences under Sections 471, 420 and 379, Indian Penal Code as well as for the offence under Section 41/42, Indian Forest Act, as aforesaid. Such conviction and sentence came to be affirmed in appeal by the learned Sessions Judge. 10. The learned Assistant Advocate General during the course of hearing, while supporting the conviction and sentence imposed upon the accused by the two courts below, at the very outset, has contended that the evidence coming on record had been rightly and properly appreciated by the two courts below while recording the conviction and sentence and that it would not be appropriate for this court in exercise of revisional powers to re-appreciate the evidence and to come to its own conclusion as to the guilt or otherwise of the accused. 11. The nature and scope of revisional power of this court came up for consideration before the Honble Supreme Court in State of Kerala v. Puttwnanaillath Jethavedan Namboodiri, (1999) 2 SCC 452. In the said case, the accused therein was convicted and sentenced by the trial court for the offences under Sections 406, 468 and 477-A, Indian Penal Code. The Additional Sessions Judge, on appeal, after reappraisal of the entire evidence affirmed the conviction and sentence as imposed by the trial court. On revision being filed by the accused, the High Court of Kerala interfered with the conviction and sentence and came to hold that the prosecution had failed to establish the case against the accused beyond reasonable doubt. The Additional Sessions Judge, on appeal, after reappraisal of the entire evidence affirmed the conviction and sentence as imposed by the trial court. On revision being filed by the accused, the High Court of Kerala interfered with the conviction and sentence and came to hold that the prosecution had failed to establish the case against the accused beyond reasonable doubt. It was held by the Supreme Court:— "Having examined the impugned judgment of the High Court and bearing in mind the contentions raised by the learned counsel for the parties, we have no hesitation to come to the conclusion that in the case in hand, the High Court has exceeded its revisional jurisdiction. In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreeiate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by re-appreciating the oral evidence.........” 12. The learned counsel for the accused, while not disputing the above proposition of law, has contended that in the present case there are glaring features which tantamount to gross miscarriage of justice and as such this court in exercise of its power of revision can interfere with the findings of the two courts below. 13. The learned counsel for the accused, while not disputing the above proposition of law, has contended that in the present case there are glaring features which tantamount to gross miscarriage of justice and as such this court in exercise of its power of revision can interfere with the findings of the two courts below. 13. On scrutiny of the judgments of the two courts below, this court is satisfied that there are glaring features which tantamount to gross miscarriage of justice and that it is a fit case calling for interference by this court in exercise of revisional powers. 14. The first offence for which the accused stands convicted and sentenced is the one under Section 41/42 Indian Forest Act. Chapter VII of the Indian Forest Act, which consists of Sections 41 to 44, deals with *the control of timber and other Forest Produce in transit". 15. Section 41 prescribes for the powers of the State Government to make rules to regulate the transit of forest produce. The said section, in so far as it is relevant for the purpose of the present case, reads:— (1) The control of all rivers and their banks as regards the floating of timber, as well as the control of all timber and other forest-produce in transit by land or water, is vested in the State Government, and it may make rules to regulate the transit of all timber and other forest-produce. (2) In particular and without prejudice to the genarality of the foregoing powers such rules may— (a) prescribe the routes by which alone timber or other forest-produce may be imported, exported or moved into, from or within the States; (b) prohibit the import or export or moving of such timber or other produce without a pass from an officer duly authorised to issue the same or otherwise than in accordance with the conditions of such pass; (c) provide for the issue, production and return of such passes and for the payment of fees therefor; (d) provide for the stoppage, reporting, examination and marking of timber or other forest-produce in transit, in respect of which there is reason to believe that any money is payable to the Government on account of the price thereof, or on account of any duty, fee, royalty or charge due" thereon, or, to which it is desirable for the purposes of this Act to affix a mark; (e).................................. (f) .................................. (g) .................................. (h).................................. (i).................................. (3) ........................................ Section 42 deals with the penalty for the breach of rules made under Section 41. Such section, as applicable to the State of Himachal Pradesh, reads:— “(l) The State Government may by such rules prescribe as penalties for the contravention therof imprisonment for a term which may extend to two years, or fine which may extend to five thousand rupees, or both. (2) Such rules may provide that penalties which are double of those mentioned in sub-section (1) may be inflicted in cases where the offence is committed after sunset and before sunrise, or after preparation for resistance to lawful authority, or where the offender has been previously convicted of a like offence.” 16. In exercise of the powers vested in it, the State Government has framed the rules, known as The Himachal Pradesh Forest Produce Transit (Land Routes) Rules, 1978", in order to regulate the movement of forest produce by land route into, from and within the territorial limits of Himachal Pradesh. 17. Rule 11 of such rules prohibits the transportation of forest produce , without a valid pass. It also prescribes the land routes through which alone forest produce may be transported. Rule 12 provides for issuance of a challan in the prescribed form by the competent authority in favour of the person in whose favour a pass under Rule 11 has been issued. Such challan is required to accompany the forest produce to be transported. Rule 13, provides for setting up of check post(s) at suitable point(s) alongwith the prescribed routes for the purpose of checking and examination of the forest produce being transported. 18. Rule 14 requires for production of pass/challan by the person transporting the forest produce at any time on being asked by a forest officer or police officer. Rule 15 authorises the forest officer or police officer to detain the forest produce and cause the same not to move in the event of failure of the person transporting the same to produce the pass/challan till a valid pass/challan is produced. Rule 16 further authorises the forest officer or police officer to seize the forest produce in case the pass/challan is not produced. v 19. Rule 16 further authorises the forest officer or police officer to seize the forest produce in case the pass/challan is not produced. v 19. The contention raised on behalf of the accused is that the State Government under Section 41 of the, Act is empowered to frame the rules only to regulate the timber and other forest produce in transit and that the abovesaid rules of 1978 have been framed only for the purpose of regulating the timber and other forest produce in transit. It was further contended that once the timber and/or other forest produce ends its journey finally and reaches its destination, the same cannot be said to be in transit. In such circumstances Section 41 of the Act and the rules framed thereunder would have no application. On the other hand, the learned Assistant Advocate General has contended that the timber and/or forest produce would be deemed to be in transit so long as the same is not to an end use. 20. The question as to the meaning and purport of the words "in transit" came up for consideration before a Division Bench of Patna High Court in Ranchi Timber Traders Association and others v. State of Bihar and others, AIR 1984 Patna 26 L It was held that the provisions of Section 41/42 of the Act and the rules framed thereunder would apply only while the timber and/or other forest produce is in transit. It will not apply once such timber and/or other forest produce has reached its destination. The Division Bench further held that any rules framed by the State Government under Section 41 of the Act dealing with the timber and/or other forest produce not in transit would be ultra vires. 21. Admittedly, in the present case the timber was neither detained nor seized while in transit. It was seized from the site where the accused was carrying out the work of construction of a building for the Horticulture and Forestry University. The timber seized was. in the form of door and window frames. Since the timber was not seized while in transit, it cannot be said that there has been a violation of the Rules of 1978 and as such Section 42 of the Act would have no application. The timber seized was. in the form of door and window frames. Since the timber was not seized while in transit, it cannot be said that there has been a violation of the Rules of 1978 and as such Section 42 of the Act would have no application. On this short ground alone the conviction and sentence of the accused for the offence under Section 41/42 of the Indian Forest Act cannot be sustained. 22. The second offence for which the accused stands convicted and sentenced is the one under Section 379, Indian Penal Code. Admittedly, there is no evidence as to the theft of the timber in question. The two courts below have convicted and sentenced the accused for the offence under Section 379, Indian Penal Code, simply on the basis of the presumption under Section 69, Indian Forest Act. Section 69 reads:— "When in any proceedings taken under this Act, or in consequence of anything done under this Act, a question arises as to whether any forest produce is the property of the Government, such produce shall be presumed to be the property of the Government until the contrary is proved." 23. In SidheswarPanda v. The State, AIR 1954 Orissa 16, the accused, therein was found in possession of 31 pieces of Sal timber on 17.5.1951. The forester suspected that the same might have been removed from the Government forest and demanded the production of permit from the accused. The accused pleaded that such logs wbre, obtained by him from one Shri Naylor under a permit. However the accused could not produce a permit. There was no hammer mark on the logs. There was no evidence by the prosecution to show that the seized timber was felled or removed from any Government forest. The Magistrate, relying upon the presumption under Section 69 of the Indian Forest Act, convicted the accused for the offence under Section 26(f) and (g) of the Act read with Hindol (Assam) Forest Rules. On the matter being carried before the High Court, it was held that the rule contained in Section 69 of the Act at best raises a presumption that in the absence of evidence, it shall be presumed that they are Government property, but this is only a rule of evidence and the accused cannot be convicted on a mere presumption. On the matter being carried before the High Court, it was held that the rule contained in Section 69 of the Act at best raises a presumption that in the absence of evidence, it shall be presumed that they are Government property, but this is only a rule of evidence and the accused cannot be convicted on a mere presumption. It was the duty of the prosecution to establish that some timber was felled and/or removed from the Government forest and that the timber in possession of the accused corresponded to the logs illegally removed from Government forest. It was further held that it may well be that the accused had failed to explain wherefrom he had obtained the timber, such failure on the part of the accused to explain satisfactorily the source of the timber would not relieve the prosecution to prove that the timber constituted Government property and had been illegally removed. 24. In the present case as well, in the absence of evidence that a theft of timber was committed and that the timber found in possession of the accused corresponded to the timber stolen, the accused could not have been convicted for the offence under Section 379, Indian Penal Code by merely raising the presumption under Section 69, Indian Forest Act, even though the accused could not explain the source from where he obtained such timber. The conviction and sentence of the accused for the offence under Section 379, Indian Penal Code, therefore, cannot be sustained. The accused has been next convicted and sentenced for the offences under Section 471/420, Indian Penal Code. 25. Be it stated that no ingredients either for the offence under Section 471 or 420, Indian Penal Code are contained in the F.I.R. Ex. PW 32/A. The averments made in the challan presented to the court are that the accused during the course of investigation had produced false and forged bills/cash memos in order to support his claim to the seized timber and to cheat the authorities. 26. PW 32/A. The averments made in the challan presented to the court are that the accused during the course of investigation had produced false and forged bills/cash memos in order to support his claim to the seized timber and to cheat the authorities. 26. The charge relating to these offences as framed against the accused by the learned trial court reads:— "Fourthly on the above date, time and place you fraudulently and dishonestly used as genuine certain documents i.e., Bills of Messrs Johri Mal Bansi Dhar, Messrs Bhatia Timbers and Messrs Jain Timber Company which you knew at the time you used it as forged and you thereby committed an offence punishable under Section 471 LP.C, and is within my cognizarice. Lastly on the above date, time and place you and Dr. Y.S, Parmar University Nauni were found in possession of certain wooden fixtures and scants for which you failed to account for and you produced forged bills to justify your claim over the same and as such the property is presumed to be extracted from Government forest you thereby caused wrongful loss to the Government and pecuniary gain to you by your act of cheating and you thereby committed an offence punishable under Section 420 LP.C. within my cognizance.” 27. Insofar as the charge for the offence under Section 420, Indian Penal Code, quoted above, is concerned, the same does not contain the essential ingredients of such offence. Presumption under Section 69, Indian Forest Act, was sought to be drawn, in such charge. 28. Admittedly, the accused was not guilty of forgery inasmuch as he has been acquitted of the offences under Sections 467 and 468, Indian Penal Code, In order to constitute an offence under Section 471, Indian Penal Code, the prosecution is obliged to prove that the accused had the knowledge or reasons to believe that the documents were forged and that he had used them with fraudulent intention. Evidence is lacking in the present case to show that the accused knew that the documents, namely, the bills etc. were forged or that inspite of such knowledge he used them with a dishonesty and fraudulent intention. 29. Therefore, the conviction and sentence of the accused even for the offences under Section 471/420 Indian Penal Code cannot be sustained. 30. As a result, the present petition is allowed. were forged or that inspite of such knowledge he used them with a dishonesty and fraudulent intention. 29. Therefore, the conviction and sentence of the accused even for the offences under Section 471/420 Indian Penal Code cannot be sustained. 30. As a result, the present petition is allowed. The conviction and sentences imposed upon the accused by the two courts below are set aside and he is acquitted of all the offences. His bail bonds shall stand cancelled and discharged. The amount of fine, if already deposited, shall be refunded to him forthwith. Petition allowed. -