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2013 DIGILAW 734 (HP)

STATE OF HIMACHAL PRADESH v. Bachhi Ram

2013-08-13

A.M.KHANWILKAR

body2013
JUDGEMENT A.M.KHANWILKAR, J. - 1. THIS is an appeal against acquittal. It takes exception to the decision of the Special Judge (Forest), Shimla, H.P. in corruption case No.14-S/7 of 2002 dated 27th August, 2009. The Respondents were charged for offence punishable under Sections 379, 468, 420, 471 and 120-B IPC, Sections 33, 41 and 42 of the Indian Forest Act and Sections 5(2) read with 13(2) of the Prevention of Corruption Act. 2. THE prosecution case, in brief, was that on 17th February, 1985 Sh.Rama Nand, Inspector, Police Station, Enforcement (South Zone), Shimla, after inquiry on the application of Rajinder Singh Mehta, sent a rukka for registration of case. According to the Investigating Officer, the record of M/s.BR & Company, Pathankot revealed that DFO, Chopal had issued export permit No.383/83-84 dated . 2nd March, 1984 to Divisional Manager, HPFC, through M/s BR & Company, sub-agent, Pathankot, for transportation of 1117 scants of deodar of volume 280-60 cubic meter bearing property mark BRD and khudan mark BR, but the record of of the Himkasth Sale Depot, Parwanoo, indicated that 1676 scants of deodar of volume of 156.488 cubic meter and 2780 rt scants of kail of the volume of 290.504 cubic meter were ou received through export permit. It is noted that 559 scants of deodar were found in excess of the export permit and 685 scants of kail were found less than the quantity mentioned in the export permit. On the basis of such variation noticed during the investigation, the respondents were charged with the alleged offences. Respondents No.1 and 2 were working for M/s BR & Company whereas respondent No.3 was at the relevant time Forest Guard at Chopal where the loading of the scants in question was done. Respondents No.5 to 8 were attached to Yashwant Nagar Check Post and were reportedly on duty at the relevant time. 3. THE prosecution examined as many as 37 witnesses in support of its case. The trial court after analyzing the evidence of the concerned witnesses, found that all the forest officials who were examined as witnesses admitted that there was no illicit felling of the trees from the Government forest and only that timber, which was extracted from the . sale of the trees of the private owners, was allowed to be transported after proper verification and marking of the trees. sale of the trees of the private owners, was allowed to be transported after proper verification and marking of the trees. On the factum of transportation of the timber in question, the learned Judge noted that the prosecution of witnesses have admitted that whenever the timber is allowed to be transported permit is not issued in favour of that party rt but is issued in favour of the Forest Corporation and before ou transportation the hammer of the owner, namely, property mark and khudan mark are affixed on the timber. Thereafter, the hammer of Forest Corporation is put on that timber under the supervision of the Officers of the Forest ig Corporation. In other words, no timber is allowed to be loaded without putting the said hammer mark on the timber. This fact is reinforced from the evidence of PW-13 S.R. Rana who incidentally was posted as Assistant Manager in the office of D.M. Forest Corporation Chopal. The learned Judge has noted the evidence of this witness that Kirti Singh and one Karam Singh were posted as Deputy Ranger and Forest Guard respectively in the Forest Corporation and on application made by BR and Co. alongwith permit and specification list for transportation of timber to Parwanoo he had verified the report. In other words, it has been found that there is no evidence to indicate that at the time of loading of the timber for transportation there was any variation from the quantity mentioned in the permit. The . said timber was then transported through the forest check post which was checked by visual inspection and no discrepancy was noticed at that stage. No doubt the timber was originally intended to be transported to Mantaruwala, of but due to bad weather on the request made by BR & Co. it was allowed to be transported to Parwanoo and for which fresh export permit was obtained by the owner. 4. THE learned trial Judge has also noticed that on receiving the timber at Parwanoo Depot, necessary entry was made in the Register and no complaint was received or made by any Forest Official at Parwanoo about any variation in the ig quantity than the one mentioned in the export permit of scants and volume, as the case may be. 4. THE learned trial Judge has also noticed that on receiving the timber at Parwanoo Depot, necessary entry was made in the Register and no complaint was received or made by any Forest Official at Parwanoo about any variation in the ig quantity than the one mentioned in the export permit of scants and volume, as the case may be. The learned trial Court has then noticed that the evidence of witnesses examined by the prosecution to substantiate the factum of quantity and type of timber received at Parwanoo Depot, did not substantiate the fact that the timber so received and seized bears hammer mark of BR & Co. On the other hand, the seizer memo Ext.PW-3/G mentioned that the whole timber was bearing Khudan mark BR and property mark BRD and the timber in question was released by Mrs.Aruna Kapoor, the then Chief Judicial Magistrate, Solan on 20th March, 1988. The release order clearly mentioned that one scant of both Kail and Deodar be retained for the purpose of evidence. However, no such . scant was produced in the Court during the recording of evidence to substantiate as to whether whole of this timber was bearing Khudan mark BR and property mark BRD. The Investigating Officer did not depose that whole of the timber lying at the Parwanoo Depot had Khudan Mark and property mark of BR & Co. nor he worked out the volume of timber which needs visible hammer mark separately. 5. EVEN, the evidence of PW-34 did not support the prosecution case about variation in the size and volume of the timber found at Parwanoo Depot. The evidence of PW- 29 also did not disclose the fact that the whole timber lying at Parwanoo Depot had Khudan mark and property mark of BR & Co. In his evidence, he has admitted that timber of BR & Co. was lying separate in depot and other timber was lying at some distance, but he did not record the ownership thereof or whether there was any mixing of the timber. In absence of such evidence, the prosecution case about variation of the number and volume of scants found at Parwanoo Depot and mentioned in the export permit remained unsubstantiated. 6. was lying separate in depot and other timber was lying at some distance, but he did not record the ownership thereof or whether there was any mixing of the timber. In absence of such evidence, the prosecution case about variation of the number and volume of scants found at Parwanoo Depot and mentioned in the export permit remained unsubstantiated. 6. THE trial Court has also analyzed the evidence of PW-8, PW-17, PW-13 and has noted that the witnesses had not seen the property and Khudan marks on the scants which were not having hammer marks nor have clearly established the factum of variation and there was material contradiction . in the prosecution case. The trial Court accordingly concluded that the prosecution has failed to substantiate and prove involvement of the accused also in respect of transportation of timber in excess of the permit or less in of quantity. As a result, the trial Court has acquitted all the accused of the charges levelled against them. After having considered the rival submissions and going ou through the ocular and documentary evidence on record with the assistance of the learned Public Prosecutor as well as counsel appearing for respective accused, I have no hesitation in holding that the view taken by the trial Court on the basis of analysis of the relevant evidence is a possible view. In the first place, the finding recorded by the trial Court that the Forest Officials have admitted that there was no illicit felling of the trees from the Government forest and extracted timber was from the sale of the trees of the private owners is unexceptionable. No evidence has been brought to my notice which could controvert that position. Once it is held that it is not a case of illegal felling of trees from the Government forest, the genesis of the prosecution case must fall to the ground. Assuming that the Court is still required to examine the allegation that the scants transported to Parwanoo Depot from Chopal varied from the quantity and volume mentioned in the export permit, even this factum will have to be answered against the prosecution inasmuch . as the prosecution has failed to substantiate the fact that BR & Co. caused to load excess scants of Deodar or less scants of Kail at Chopal than the quantity mentioned in the export permit. of 7. as the prosecution has failed to substantiate the fact that BR & Co. caused to load excess scants of Deodar or less scants of Kail at Chopal than the quantity mentioned in the export permit. of 7. IT is not disputed by the prosecution witnesses that after following the procedure of marking timber, both by the owner and the Corporation, which is precondition for loading the same for transportation, the loading at Chopal was done under the supervision of officials. The record regarding loading neither substantiates the fact about variation at that stage nor does the ocular evidence support that position. Further, the fact that no complaint was received from forest officials at Parwanoo when the timber was transported to that Depot either about receiving excess or less than the quantity mentioned in the export permit reinforces that loading at Chopal was proper. Moreover, the evidence substantiates that the timber received with mark BR & Co. under the invoice indicated that the same had passed through Yashwant Nagar Check Post after due inspection. As there was no serious suspicion about the volume or quantity, it was cleared from Yashwant Nagar Check Post and allowed to proceed to Parwanoo Depot. 8. SUFFICE it to observe that the prosecution evidence has failed to substantiate the fact that at the time of loading the timber, . it was in excess of quantity and volume mentioned in the export permit. In that case, the Forest Guard at Chopal would stand absolved of the charge as also accused Nos.1 and 2 working with BR & Co. On the same reasoning which of found favour with the learned trial Court, even the other accused Nos.5 to 8 would stand absolved of the charge levelled against them. It is neither a case of illegal felling or of loading timber in variation of the permitted quantity or volume. As a matter of fact, the prosecution evidence suggests that there was lapse at Parwanoo Depot. But, none of the officials of Parwanoo Depot have been named as accused nor the investigation is focused in that regard. The trial Court has not only thoroughly analyzed the prosecution evidence but has drawn inference which is a possible view. That view cannot be said to be either perverse, manifestly wrong or error apparent on the face of the record. The trial Court has not only thoroughly analyzed the prosecution evidence but has drawn inference which is a possible view. That view cannot be said to be either perverse, manifestly wrong or error apparent on the face of the record. Merely because another view may be possible or there is some error here or there in the analysis done by the trial Court cannot be the basis to interfere against order of acquittal. The trial Court, in paragraphs 24 to 27, has examined the relevant evidence to hold that neither it was a case of illicit felling of the trees from the Government forest nor a case of loading of timber in variation of the quantity specified in the export permit or for that matter transportation of that timber; but on proper scrutiny of the . evidence, it would appear that there was some amiss at the Parwanoo Depot itself. For, the prosecution witnesses during cross examination have accepted that they had not seen property and Khudan marks on the scants brought to or of lying in the Depot, which were not having the hammer marks. Taking any view of the matter, therefore, no interference in this appeal against acquittal is warranted. 9. HENCE, the appeal is dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged.