JUDGMENT Arun Kumar Goel, J. :- State has filed this appeal against the judgment of Additional Chief Judicial Magistrate. Court No.I. Shimla. dated 2.6.2001.in case No.93/2 of 1994. After conclusion of the trial respondents have been acquitted of the offences under rules 5.7.11 and 20 of H.P. Forest Produce Transit (Land Routes) Rules. 1978 framed under Sections 41 and 42 of the Indian Forest Act read with section 120-B Indian Penal Code and Section 471 read with Section 120-B of the Indian Penal Code. 2. As per prosecution case on 10.5.1993 at about 3.10 P.M. PW-3 DW Negi. S.H.O. Police Station. Shimla East was patrolling at village Mehali. He was accompanied by other police officials. Truck No. HP-07-1157 came from Junga side. For checking purposes it was stopped. Sant Ram respondent was on its wheel. Shakat Ram Munshi was sitting in the truck. On verification it was found that 161 scants of Deodar wood were there in the truck. According to the prosecution case those were in the name of Vrijinder Kumar respondent No.I. 5 scants were found without hammer mark. 3. In this background truck alongwith timber was seized at the spot. A Rukka Ext.PW-3/A was sent by PW-3 from the spot. On its basis F.I.R. Ext.PW-2/A was recorded by the then Additional S.H.O. P.W.-2 Phool Prakash. Investigation was undertaken by P.W.-3 DW Negi. 4. When the said witnesses demanded papers from these persons, i.e. driver and Munshi Shakat Ram. they handed over duplicate timber form. According to the prosecution case volume of timber that was contained in the duplicate timber form, did not tally with the timber that was actually found in the truck and as already noted, on some of the scants there was no hammer mark. As such, timber was seized vide Ext.PW-3/A alongwith driving licence of Sant Ram Driver. 5. There is evidence of the Forest Official PW-6 J.S. Chauhan. O.S.D. Forest Corporation. Per him. he was posted as A.C.F. at shimla and went to Junga for checking the Depot of Gajinder. He referred to his findings vide Ext.PW-6/A in the Register Ext.P3. According to him. after 1991 he never checked the Saw Mill. PW-7 Budhi Ram. who had measured the timber under the directions of D.F.O. that was lying ar Police Post Kasumpti. he was posted as A.C.F. at shimla and went to Junga for checking the Depot of Gajinder. He referred to his findings vide Ext.PW-6/A in the Register Ext.P3. According to him. after 1991 he never checked the Saw Mill. PW-7 Budhi Ram. who had measured the timber under the directions of D.F.O. that was lying ar Police Post Kasumpti. He found 161 scants of Devdar and his report is Ext.PW-7/A. Timber was old one and had mark B.K.S. on all the scants. This witness was declared hostile.However, nothing could be brought out to shake him for improving prosecution case. 6. Truck in question was released on Superdari to Harjeet Singh PW-1 vide Superdari Memo Ext.PW-1/A. From the evidence on record it is clear that 161 scants were recovered from the truck, few having no hammer mark. Timber was measured twice, once by PW-3. the Investigating Officer and then by PW-7. as noted here-in- above. There is positive evidence that part of the timber did not bear any hammer marl: That being so. 1 see no justifiable ground which existed for ordering release of timber in favour of respondent NO. 1 by means of impugned judgment. Trial Court seems to have been impressed by the fact that timber was being carried under a legitimate authority as claimed by respondent No. 1. If that was so. it is not understood as to what part of it did not bear the necessary hammer mark on it in accordance with law before it could be put for export. 7. When a reference is made to the recovery memo at the spot Ext.PW- 3/A number of scant is 161 and its volume is 84.04 Cft. This is what mentioned is Ext.P-1 i.e. the form of timber under rule 13. On the otherhand timber that was got measured by the police from PW-7 who claims to have measured it. He found the volume of timber to be 84.80 Cft. As such, even if it be assumed that respondents had lawful authority to transport the timber from Junga to Chaura Maidan. Shimla they could earn, 161 scants of different sizes measuring 84.04 Cft. Whereas it was found excess by 0.76 Cft when it was measured vide Ext.PW-7/A. Further, when a reference is made duly given in Ext.P-1 total number of scants of the size of 10 x 3" was 31. Shimla they could earn, 161 scants of different sizes measuring 84.04 Cft. Whereas it was found excess by 0.76 Cft when it was measured vide Ext.PW-7/A. Further, when a reference is made duly given in Ext.P-1 total number of scants of the size of 10 x 3" was 31. On the other hand there are only 19 scants of this size. As per Ext.P-I detail of timber sold size is given in it. whereas in Ext.PW-7/A description of timber inspected by PW-7 is also there but both do not tally. 8. In these circumstances, it can be said that respondent No. 1 and for that matter all the respondents had not connected the timber in connection what could be exported under Ext.P-1 and what was actually measured. In this connection, it may also be observed that in case respondent No. 1 had transported the timber under lawful authority of Ext.P-I. it was for him to lead evidence with a view to establish that there was connection between Ext.P-1 and Ext.PW-7/A. In addition to this, timber recovered that was verified at the time of its taking over by PW-3 as per seizure memo Ext.PW-3/B. It is not in accordance with the details as contained in Ext.P-1. the timber form under Rule 13. where under respondent claimed the authority to transport the timber to Chaura Maidan. Shimla. 9. In the circumstances of this case. I am satisfied that timber detailed in Ext.P-1 has not been connected with what was recovered as given in Ext.PW-3/B and as well as in Ext.PW-7/A. In the face of this position, it is felt that while upholding the acquittal of the respondents, timber cannot be ordered to be released in favour of respondent No.l. when a reference is made to the cross-examination directed against the witnesses. I am satisfied that there is no suggestion given to any of the PWs claiming the timber to be belonging to respondents much less to respondent No.l. In his statement under Section 313 Cr.P.C. he has stated that the wood in question was legal and valid, otherwise he has not made any attempt to claim the timber or for its release in his favour. 10. In State of H.P. v. Laxmi Sand & ors. 1992 Cri.L.J. 3226. 10. In State of H.P. v. Laxmi Sand & ors. 1992 Cri.L.J. 3226. two appeals were disposed of one was filed by the State being Criminal Appeal No.43 of 1985 against the Judgment of acquittal passed by the Special Judge. Shimla. 11. Another appeal, being Criminal Appeal No. 14 of 1985 was filed by the accused-respondent seeking to set aside the order of Special Judge, who while acquitting the accused had ordered the confiscation of the seized timber in favour of the State. Prayer made in Criminal Appeal No. 14 of 1985 was to direct the return of timber or sale proceeds thereof to the accused persons. 12. Both these appeals were dismissed by the High Court. Matter when taken up to the Supreme Court, dismissal of the appeal of the State was set-aside but that of Criminal Appeal No. 14 of 1985 was upheld meaning thereby that the prayer to release the timber or payment of money was turned down. What was held by this Court which according to Mr. Guleria and was upheld by the Supreme Court, was in the following term: "23. Dealing with the appeal preferred by accused-respondents Nos.7 and 8. the Special Judge took notice of the provisions of Section 69 of the Indian Forest Act which provides for presumption being raised in favour of the State where there is dispute in any proceedings relating to any forest produce, with respect to which an offence is alleged to have been committed to be belonging to the State. The presumption raised is reputable one which has to be rebutted by a private person. Upholding the acquittal of accused-respondents on the ground that the prosecution has failed to bring home the charge for want of sufficient evidence will not be sufficient ipso facto to rebut the presumption required to be drawn under Section 69 of the Act. 24. In order to claim the seized timber, it was necessary for the accused appellants to have brought on record sufficient material for rebutting the presumption which, in our opinion, is lacking in the instant case. Moreover, in the statements recorded under Section 313 of the Code of Criminal Procedure also, the accused-respondents have not laid any claim to the sized (?) timber. In view of this, we do not find any merit in the appeal and as such Criminal Appeal No.14 of 1985 is also dismissed." 13. Moreover, in the statements recorded under Section 313 of the Code of Criminal Procedure also, the accused-respondents have not laid any claim to the sized (?) timber. In view of this, we do not find any merit in the appeal and as such Criminal Appeal No.14 of 1985 is also dismissed." 13. Faced with this situation, learned senior counsel appearing on behalf of the respondents vehemently urged that the order allowing the release of timber in favour of his client Vrijinder Kumar respondent No. 1 calls for no interference in the present appeal against acquittal. He further stated that there is no infirmity with this part of the order. As already noted from the cross-examination of prosecution witnesses. It is clearly made out that none of the respondents claimed timber to be belonging to any one of them. Assuming that this was bonafide omission, appellant still had another opportunity to claim timber by taking up a suitable stand in his statement under Section 313 of the Code of Criminal Procedure. Admittedly, he did not claim the timber to be belonging to him. It is really surprising that despite the above situation learned Magistrate below had thought it fit to release the timber in question in favour of respondent No. 1. That being so and taking into account what was observed by a Division Bench of this Court in the case of State of H.P. v. Laxmi.Nand and others (supra). I find that the trial Court has gravely erred in ordering the release of timber in favour of respondent No. 1. 14. In this behalf, it may also be appropriate to observe that the statutory presumption under Section 69 of the Indian Forest Act to forest produce in favour of the State is always there where there is dispute in any proceeding relating to forest produce with respect to which an offence is alleged to have been committed, to be belonging to the State. This is exactly the situation in the present case. No doubt, this presumption is rebuttable. One way of rebutting it was to have led positive evidence to connect the recovered timber with Ext.P-l. On examination of evidence this aspect has been found against the respondent. Other was to have put up specific defence to dislodge the prosecution evidence and expressly claiming the timber by effectively cross-examining the witnesses. Admittedly, this has not been done. One way of rebutting it was to have led positive evidence to connect the recovered timber with Ext.P-l. On examination of evidence this aspect has been found against the respondent. Other was to have put up specific defence to dislodge the prosecution evidence and expressly claiming the timber by effectively cross-examining the witnesses. Admittedly, this has not been done. Lastly, respondents were in position to give explanation regarding timber belonging to them when they were being examined under Section 313 of the Code of Criminal Procedure. 15. It may be pointed out in the context of statement under Section 313 Cr.P.C. that it is neither a mere ritual nor a formality.It is an opportunity to explain the incriminating material examined by the prosecution when he is confronted with the same and also to put up his version before the Court. 16. Only thing made out from the statement under Section 313 Cr.P.C. given by the respondents is their brevity without any specific claim to the timber in question. This is an additional reason that while following the judgment of this Court supra, to modify the decision of the trial Court in Case No.93/2 of 1994 decided on 2.6.2001 by learned Additional Chief Judicial Magistrate. Court No. 1. Shimla: so far it relates to the release of timber in favour of accused Vrijinder Kumar respondent No. is concerned while upholding the acquittal of the respondents timber is ordered to be forfeited to the State. Respondents are on bail. There bail bonds are discharged. 17. Faced with the situation. Sh. G.D. Verma. learned counsel for the appellant stated that liberty may be reserved to his client respondent No. 1 Vrijinder Kumar to have such recourse as is permissible in law for establishing his title to the timber in question. Suffice it to say in this behalf that in case respondents and for that matter any one of them is permitted by law to establishright/title to the timber in question, he is free to do so. For this purpose no permissionorderis required from this Court. -