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2011 DIGILAW 1549 (HP)

State of H. P. v. Devinder Singh Primta

2011-03-21

RAJIV SHARMA, SURJIT SINGH

body2011
JUDGMENT Surjit Singh, Judge This appeal by the State is directed against the judgment, dated 31st March, 2001, of learned Special Judge (Forest), Shimla, whereby respondents Devinder Singh, a forest lessee, Kewal Ram, Block Officer in Forest Department, Atma Ram, a Forest Guard, Subhash Chander, Station Master Shoghi, Amrit Singh, Station Master, Summer Hill, Shimla, Harbans Lal, Station Master, Dharampur and Onkar Nath & Ashwani Kumar, both Station Masters, Dharampur. have been acquitted of charge, under Sections 218, 379, 420, 467, 468, 471, read with Section 120-B of the Indian Penal Code, Section 5(2) of the Prevention of Corruption Act, 1947, and Rules 18/20 & 11/20 of the H.P. Forest Produce Transit (Land Routes) Rules, 1978. 2. Prosecution case, which led to the trial of the respondents, may be noticed. While investigating a case, bearing FIR No.17/1984, the concerned Police Officer noticed that excess timber had been exported against Permit No.2 of 1981-82, issued in favour of respondent Devinder Singh. Inquiry was conducted by PW-46 K.C. Nandwani and PW-64 M.A. Sidiqui, Railway Inspector. Inquiry revealed that timber, in excess of the prescribed limit, was exported through railways not only against Permit No.2 of 1981-82, Ext. PW4/A, but also against Permit No.22 of 1980-81, Ext. PW64/C-1, as extended vide Permit No.64/C-3. Case was formally registered, on the basis of report of aforesaid PW-44 K.C. Nandwani and PW-64 M.A. Sidiqui, by Police Station, Enforcement, South Zone. 3. During the course of investigation, it came to light that applications in the names of 17 private land owners of village Kujbi-Kelbi in the area of Chopal, had been submitted by respondent Devinder Singh, a Forest Lessee, to DFO, Chopal, seeking demarcation of lands described in those applications and marking of fellable trees, standing on those lands. Applications were forwarded to ACF Chatur Singh (now dead) for marking the trees after obtaining demarcation. Demarcation was carried out by Parma Nand, Field Kanungo, who too is dead. On the basis of demarcation given by said Field Kanungo Parma Nand, trees, shown to be on private land, were marked by ACF Chatur Singh (now dead), respondent Kewal Ram, who was then working as Block Officer and respondent Atma Ram, who was posted as Forest Guard. Lists of trees shown to stand on private lands were prepared. On the basis of demarcation given by said Field Kanungo Parma Nand, trees, shown to be on private land, were marked by ACF Chatur Singh (now dead), respondent Kewal Ram, who was then working as Block Officer and respondent Atma Ram, who was posted as Forest Guard. Lists of trees shown to stand on private lands were prepared. The lists bore certificates of respondents Kewal Ram and Atma Ram as also ACF Chatur Singh and Field Kanungo Parma Nand, both of whom are dead, that all the trees stood on private land, in respect of which 17 applications had been submitted. On the basis of those certificates, permission for feeling the trees was granted by the DFO. 4. Respondent No.1 Devinder Singh was permitted to fell the marked trees. After the felling of trees and their conversion into timber, an application was moved by respondent Devinder Singh, seeking permission to export the timber, which was hammer marked on the spot by various forest officials. A number of permits were issued in favour of respondent Devinder Singh. Two of those permits bore Nos. 22 of 1980-81, Ext,. PW64/C-1 and 2 of 1981-82, Ext. PW4/A. 5. Against Permit No.22 of 1980-81, 4240 scants, with total volume measuring 8613.89 cft. and against Permit No. 2 of 1981-82, 539 scants, with total volume measuring 1038.95 cft. were permitted to be exported. To ascertain the source of excess timber exported against the aforesaid two permits, Investigating Agency got the private lands, on which trees were stated to have been marked, re-demarcated and it was found that out of total 607 trees, reported to have been marked on private land of 17 applicants, 188 trees had been marked on government land. Demarcation was carried out by one Naib Tehsildar. PW-6 Neharu, Block Officer, counted stumps of 188 trees, allegedly felled on the government land and prepared list Ext. PW6/B. 6. On completion of investigation, report, under Section 173 Cr. P.C., alongwith relevant papers, was filed in the Court of Special Judge, alleging that there was a conspiracy among the respondents and deceased Chatur Singh, ACF and Parma Nand, Field Kanungo, to fell trees standing on government land and in pursuance of that conspiracy, 188 trees were felled on government land, adjoining private land (on which demarcation had been permitted) and timber was exported in excess of the limit prescribed in the aforesaid two export permits. 7. 7. Learned trial Court, after complying with the requirement of Section 207 Cr. P.C., charged the respondents with the aforesaid offences and on their pleading not guilty, tried them. 8. Prosecution examined a number of witnesses, besides proving various documents. Respondents denied that there was any conspiracy or any trees were felled on government land. It was also denied that timber in excess of the quantity, permitted under the aforesaid two permits, had been exported. 9. Learned trial Court concluded that the case of the prosecution had not been proved, beyond reasonable doubt and consequently acquitted the respondents. 10. We have heard learned Deputy Advocate General as also the learned counsel, representing the respondents, and gone through the record. 11. Learned Deputy Advocate General has submitted that the charge of exporting more timber than allowed to be exported against permits No. 2 of 1981-82 and 22 of 1980-81, stands proved. Points urged in support of the submission are manifold. 12. First submission is that forest produce, once cleared for export, under a permit, cannot be altered in shape. This submission has been made to counter the reasoning given by the trial Court that increase in number of scants, permitted to be exported, was on account of cutting of some of the scants into pieces, to adjust the timber in the wagons, in such a way that timber did not shake or rattle, while being carried and thus did not damage the wagon. In support of this submission, learned Deputy Advocate General relies upon the provision of Rule 19 of HP Forest Produce Transit (Land Routes) Rules, 1978. Rules 19 reads as follows: “19. Bar on altering or defacing or obliterating of marks.- No person shall without the written permission of the Divisional Forest Officer alter or deface or obliterate any mark placed on the forest produce while in transit.” 13. A bare reading of the above reproduced Rule 19 shows that alteration, defacing or obliteration is prohibited, in respect of the marks placed on forest produce, particularly the scants and not the forest produce itself. 14. Next submission of learned Deputy Advocate General is that under Rule 18 of the aforesaid H.P. Forest Produce Transit (Land Routes) Rules, 1978, timber could not have been exported by railways, unless export permit specifically prescribed that it could be sent through railways. Rule 18 of the aforesaid Rules reads as follows: “18. 14. Next submission of learned Deputy Advocate General is that under Rule 18 of the aforesaid H.P. Forest Produce Transit (Land Routes) Rules, 1978, timber could not have been exported by railways, unless export permit specifically prescribed that it could be sent through railways. Rule 18 of the aforesaid Rules reads as follows: “18. Bar on booking forest produce by rail, by post any by air.- No person shall offer any forest produce for export by rail on any railway station or by post at any post office or by air on any airport within Himachal Pradesh, unless a pass has been issued under these rules and no railway , postal or airport authority shall accept for transport/transmission, any forest produce by rail, post or air, unless it is accompanied by a valid pass.” 15. There is nothing in Rule 18, indicating that if forest produce is to be exported by railways, the permit should make mention of that. 16. Learned Deputy Advocate General, not convinced by our having pointed out to him that Rule 18 does not support his submission, has drawn our attention to the format of Export Permit, which is Annexure A to the Rules. Format of the Export Permit is in accordance sub-rule (4) of Rule 11 of the aforesaid Rules. Sub-rule (4) of Rule 11 says that while issuing permit, the permit issuing authority shall ensure that produce crosses through one of the barriers, established by Excise and Taxation Department, the detail of which is given in the sub-rule itself. The Rule nowhere says that when a forest produce is to be carried by railways, it should make mention of the railway station, where it would be booked. 17. Vide permit No. 2 of 1981-82, Ext. PW4/A, 539 scants having 1038.95 cft. volume were permitted to be exported. Case of the prosecution is that against this permit, timber was booked with railways, vide forwarding notes Exts. PW68/A-79, PW68/A-81 and 68/A-114 and the railways carried the timber against RRs Exts. PW63/A, PW68/A-78, PW68/A-80 and PW68/A-113. The total number of scants exported against the aforesaid four RRs comes to 812. Number of scants and export permit are mentioned only in one of the forwarding notes Ext. PW68/A-113 and not in the remaining two forwarding notes. The number of permit mentioned in this forwarding note is 2/1981-82 and number of scants is 196. The total number of scants exported against the aforesaid four RRs comes to 812. Number of scants and export permit are mentioned only in one of the forwarding notes Ext. PW68/A-113 and not in the remaining two forwarding notes. The number of permit mentioned in this forwarding note is 2/1981-82 and number of scants is 196. In two of the aforesaid four RRs, number of permit is not 2/1981-82, but 27/1981-82. Prosecution’s case is that as a matter of fact, these RRs which are Exts. PW68/A-78 and PW68/A-80, are in respect of Export Permit No. 2/81-82 and there was no permit bearing No.27/1981-82, in favour of respondent Devinder Singh and that number has been wrongly written to conceal the mischief. 18. Prosecution did not lead any evidence to show that no permit, bearing No.27/1981-82, had been issued in favour of respondent Devinder Singh. Evidence on record shows that besides the aforesaid two permits, there were several other permits which were issued in favour of this respondent. There is a reference to four such permits, specifically in the prosecution evidence. Their numbers are 11/8081, 32/80-81, 26/81-82 and 66/82-83. In addition to that, there is reference to one Permit No.76 in the testimony of witnesses of the prosecution, namely PW-7 Kuldip Singh and PW-23 Mastan Singh. May be that some permit, bearing No.27/81-82 had also been issued in favour of respondent Devinder Singh and, therefore, it was for the prosecution to have led evidence, indicating that no such permit had been issued in his favour, especially when the charge is that permit No.27/81-82, has been falsely written on the aforesaid two RRs Ext. PW68/A-78 and Ext.PW68/A-80 to cover illegally exported timber. 19. The total number of scants exported against the other two RRs is much less than the quantity of 539 scants. 20. As regards permit No. 22 of 1981-82, Ext.PW64/C-1, as renewed by Export Permit Ext. PW64/C-3, the allegation is that as against 4240 scants, permitted to be exported, 4457 scants had been exported. The timber against this permit was exported from Railway Station, Shogi. The relevant RRs are Exts PW47/A-1, PW47/A-2, PW47/A-3, PW47/A-4, PW47/A-5, Ext. PW47/A-7, Ext. PW47/A-8, Ext. PW47/.A-9, Ext. PW47/A-11, Ext. PW47/A-12, Ext. PW47/A-13, Ext. PW47/A-14, Ext. PW47/A-16 and Ext. PW47/A-17, Ext. PW68/A-100, Ext. PW68/A-102, PW68/A-106, Ext. PW68/A-108, Ext. PW68/A-110, Ext. PW68/A-111 and Ext. PW68/A-112. 21. The timber against this permit was exported from Railway Station, Shogi. The relevant RRs are Exts PW47/A-1, PW47/A-2, PW47/A-3, PW47/A-4, PW47/A-5, Ext. PW47/A-7, Ext. PW47/A-8, Ext. PW47/.A-9, Ext. PW47/A-11, Ext. PW47/A-12, Ext. PW47/A-13, Ext. PW47/A-14, Ext. PW47/A-16 and Ext. PW47/A-17, Ext. PW68/A-100, Ext. PW68/A-102, PW68/A-106, Ext. PW68/A-108, Ext. PW68/A-110, Ext. PW68/A-111 and Ext. PW68/A-112. 21. It is true that number of scants exported against the aforesaid RRs exceeds the number of scants, permitted to be exported, by 217, but it is made out from prosecution’s own evidence that while loading the timber in railway wagons, sometime, some of the scants are required to be made into pieces, to properly adjust the timber in the wagons. Reference in this behalf may be made to the testimony of PW-46 K.C. Nandwani, PW-64 M.S. Sidiqui, Railway Inspector, PW-35 Om Parkash, Loading Agent and PW-63 Shakti Ram, a railway employee. 22. No other point has been urged on behalf of the prosecution. 23. In view of the above discussion, we are of the view that there is no scope for interfering with the judgment of acquittal. Hence, the appeal is dismissed.