JUDGMENT : By way of instant criminal appeal under Section 378 of the Cr.PC., challenge has been laid to the judgment of acquittal dated 20.5.2010, passed by the learned Additional District Judge, Fast Track Court, Kullu, District Kullu, H.P., in Criminal appeal No. 6 of 2010, reversing the judgment of conviction and order of sentence dated 22.2.2010 and 23.2.2010, passed by the learned Chief Judicial Magistrate, Lahaul- Spiti at Kullu, Himachal Pradesh in Criminal Case No. 428-I of 2005/ 51-III of 2008, whereby the learned trial court below though acquitted one of the accused namely Krishan Chand, but found the respondent-accused Yub Raj, guilty of having committed offence of violating Rule 20 of the HP Forest Produce (Transit Land Routes) Rules, 1978 (in short ‘the rules’) read with Section 42 of the Indian Forest Act, 1927 (in short ‘the Act’) and accordingly, convicted and sentenced him to undergo three months rigorous imprisonment and to pay fine of Rs. 5,000/-. 2. Briefly, stated facts as emerge from the record are that on 22.4.2005, persons namely Tejaswi Ram Bharti, Arvind Kumar and Ajay Kumar informed the police that they have received secrete information regarding the transportation of timber at Dohra Nullah. After having received aforesaid information, ASI Gian Chand (PW7), HC Bhagat Ram (PW4) alongwith all the above named informers went towards the Dohra Nulah and found that 3-4 persons were loading the timber in Maruti Van bearing registration No. HP 33 0551. After having seen police, persons allegedly loading the timber in the Maruti Van fled away from the spot. Informer namely Arvind Kumar identified one of the persons as Raj Kumar. Though efforts were made to search persons allegedly loading the timber in the vehicle in question, but none could be apprehended on the spot. Nine “slippers” of different sizes of timber were found inside the vehicle. After completion of the necessary codal formalities, police lodged FIR Ext.PW4/B and ASI Gian Chand, who prepared the site plan Ext.PW7/B conducted the investigation. On the basis of investigation, respondent accused was arrested, who allegedly made disclosure statement Ext.PW2/A to the police that he could show the place from where timber was being loaded in the vehicle. After completion of the necessary codal formalities, police lodged FIR Ext.PW4/B and ASI Gian Chand, who prepared the site plan Ext.PW7/B conducted the investigation. On the basis of investigation, respondent accused was arrested, who allegedly made disclosure statement Ext.PW2/A to the police that he could show the place from where timber was being loaded in the vehicle. After completion of the investigation, police presented challan before the learned Chief Judicial Magistrate, Lahaul Spiti at Kullu, who having found prima facie case against the respondent accused Yub Raj and co-accused Krishan Chand put notice of accusation to them for their having committed offences punishable under the Act, to which they pleaded not guilty and claimed trial. 3. Prosecution with a view to prove its case examined as many as eight witnesses, whereas despite sufficient opportunity, no evidence in defence ever came to be led on record by the accused named in the FIR. Both the accused in their statements recorded 313 CrPC denied the case of the prosecution in toto and claimed themselves to be innocent. 4. Learned court below on the basis of evidence led on record by the prosecution though acquitted the co-accused Krishan Chand but held the respondent accused Yub Raj guilty of having committed offence under Section 42 of the Act and accordingly, convicted and sentence him as per description given herein above. 5. Being aggrieved and dissatisfied with the judgment of conviction and order of sentence, respondent accused preferred an appeal before the learned Additional District Judge, Fast Track Court, Kullu, H.P., who vide judgment dated 20.5.20210, accepted the appeal and acquitted the respondent-accused. In the aforesaid background, respondent-State has approached this Court in the instant appeal, praying therein for conviction of the accused after setting aside the judgment of acquittal recorded by the learned first appellate Court. 6. I have heard the learned counsel for the parties and gone through the record. 7. Having perused evidence led on record by the respective parties vis-à-vis reasoning assigned by the learned first appellate Court while acquitting the accused in terms of judgment dated 20.5.2020, this Court finds no force in the submission of Mr. 6. I have heard the learned counsel for the parties and gone through the record. 7. Having perused evidence led on record by the respective parties vis-à-vis reasoning assigned by the learned first appellate Court while acquitting the accused in terms of judgment dated 20.5.2020, this Court finds no force in the submission of Mr. Sudhir Bhatnagar, learned Additional Advocate General that learned first appellate court below failed to appreciate the evidence as well as law in its right perspective, rather this Court finds that at no point of time, prosecution was able to prove that at the time of the alleged incident, timber allegedly seized from the vehicle in question was being transported, rather, simple case of the prosecution is that some persons were seen loading timber in the vehicle as detailed herein above, and they after having seen the police fled away from the spot, meaning thereby, at the time of confiscation of the timber from the vehicle as detailed herein above, the vehicle was stationery. The HP Forest Produce (Transit Land route) Rules prohibits the transportation of the forest produce without a valid permit, but once in the case at hand, vehicle was found to be in stationery condition, there cannot be any quarrel with the finding returned by the learned first appellate court that no offence, if any, can be said to have been committed by the accused under Section 42 of the Act. Case of the prosecution in the case at hand is that timber was being loaded in the Maruti Van, meaning thereby, at the time of confiscation of timber, timber was not being transported. Movement of forest produce is an essential requirement of transportation and mere act of loading of timber in a vehicle can at best amount to “preparation”, but definitely would not constitute transportation. 8. In the case at hand, no evidence ever came to be led on record to suggest that steps were being taken by the accused for transportation of the timber in question. 9. In case titled Malkiat Singh v. State of Punjab, 1969 (1) SCC 157 , which has been otherwise taken note by the learned fist appellate Court while acquitting the accused, accused was charged for exporting paddy in violation of Essential Commodities Act from Punjab. 9. In case titled Malkiat Singh v. State of Punjab, 1969 (1) SCC 157 , which has been otherwise taken note by the learned fist appellate Court while acquitting the accused, accused was charged for exporting paddy in violation of Essential Commodities Act from Punjab. In the case before Hon’ble Apex Court, truck carrying 75 bags of paddy weighing about 140 maunds was intercepted by the police at Smalkha Barrier, which is 32 miles from Delhi. Hon’ble Apex Court taking note of the fact that Delhi Punjab boundary at the relevant point of time was 18 miles from Delhi, proceeded to conclude that there has been no export of paddy outside the State of Punjab and as such, accused could not be said to have committed offence under the Essential Commodities Act and in the aforesaid judgment, Hon’ble Apex Court carved out a distinction between “attempt” and “preparation”. Relevant para of the aforesaid judgment reads as under: “ 6.The question to be considered in this appeal is whether upon the facts found by the lower courts any offence has been committed by the appellants. It is not disputed that the truck carrying the paddy was stopped at Samalkha Barrier which is 32 miles from Delhi. It is also not disputed that the Delhi-Punjab boundary was, at the relevant point of time, at about the 18th mile from Delhi. It is therefore evident that there has been no export of paddy outside the State of Punjab in this case. The truck with the loaded paddy was seized at Samalkha well inside the Punjab boundary. It follows therefore that there was no export of paddy within the meaning of Para 2(a) of the Punjab Paddy (Export Control) Order, 1959. It was however argued on behalf of the respondent that there was an attempt on the part of the appellants to transport paddy to Delhi, 'and so there was an attempt to commit the offence of export. In our opinion, there is no substance in this argument. On the facts found, there was no attempt on the part of the appellants to commit the offence of export. It was merely a preparation on the part of the appellants and as a matter of law a preparation for committing an offence is different from attempt to commit it. In our opinion, there is no substance in this argument. On the facts found, there was no attempt on the part of the appellants to commit the offence of export. It was merely a preparation on the part of the appellants and as a matter of law a preparation for committing an offence is different from attempt to commit it. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be convicted of an attempt to commit 'a crime, he must be shown first to have had an intention to commit the offence, and secondly to have done an act which constitutes the actus reus of a criminal attempt. The sufficiency of the actus reus is a question of law which had led to difficulty because of the necessity of distinguishing between acts which are merely preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it. If a man buys a box of matches, he cannot be convicted of attempted ,arson, however clearly it may be proved that he intended to set fire to a haystack at the time of the purchase. Nor can he be convicted of this offence if he approaches the stack with the matches in his pocket, but, if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it. Sir James Stephen, in his Digest of Criminal Law, art. 50, defines an attempt as follows: "'an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted. The point at which such a series of acts begins cannot be defined, but depends upon the circumstances of each particular case." 10. Though loading of the timber in the vehicle indicates that accused were preparing for transportation but if they had ultimately not started the vehicle, action, if any, of them could not be said to have been in violation of Rule 20 of the aforesaid Rules. Though loading of the timber in the vehicle indicates that accused were preparing for transportation but if they had ultimately not started the vehicle, action, if any, of them could not be said to have been in violation of Rule 20 of the aforesaid Rules. Similarly, this Court finds that prosecution, in the case at hand, filed challan against the accused for their having committed offence punishable under Section 42 of the Act for the violation of Rule 20 of the Rules. Since offence in the case at hand was noncognizable, as per schedule-2 of the Criminal Procedure Code, prosecution was under obligation to seek permission from the Magistrate under Section 155 CrPC for carrying out investigation and in the absence of any permission, police was not competent to carry out investigation or present the Challan before the court. Any investigation without there being any permission or thereafter filing of Challan in the competent court of law has rendered the entire process vitiated. In this regard, reliance is placed upon judgment rendered by this Court in case titled Sat Pal Singh @ Satta and Anr. v. Duggal Singh and Ors, 2009 2 ShimLC 131 , paras 5 to 7 whereof, read as under: “5.The offences under Sections 41 and 42 of the Indian Forest Act is punishable with imprisonment for a period of two years and with fine, which may extend to Rs.5,000/-, whereas the offence under Section 4 of the Land Preservation Act, 1978 is punishable with imprisonment for a period of six months and the offence under Section 181 of the Motor Vehicles Act is punishable with three years imprisonment or fine and under Section 192 for one year and fine. 6.Undisputedly, the above offences are non-cognizable, as per Schedule-II of the Code. Section 155 of the Code provides the procedure for the investigation of the noncognizable offences and it reads as under:- “155. Information as to non-cognizable case and Investigation of such cases:- (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate. (2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, not withstanding that the other offences are non-cognizable.” [Emphasis supplied]” 7. This section directs that the substance of information relating to the commission of a non-cognizable offence lodged in a police station shall be entered in the station diary and the informant shall be referred to the Magistrate as the police are debarred from investigating it under sub-section (2) of the Code. The section applies where the information relates solely to a non-cognizable offence. But while investigating a cognizable offence and presenting charge sheet for cognizable offence, the police are not debarred from investigating any non-cognizable offence, arising out of the same facts and including them in their final report, as per subSection (4) of the Section aforesaid.” 11. Reliance is also placed upon judgment rendered by this Court in case titled Keshav Lal Thakur v. State of Bihar, 1996 11 SCC 557 , relevant para whereof reads as under: “3.We need not go into the question whether in the facts of the instant case the above view of the High Court is proper or not for the impugned proceeding has got to be quashed as neither the police was entitled to investigate into the offence in question nor the Chief Judicial Magistrate to take cognizance upon the report submitted on completion of such investigation. On the own showing of the police, the offence under Section 31 of the Act is non cognizable and therefore the police could not have registered a case for such an offence under Section 154 Dr. P.C. of course, the police is entitled to investigate into a non-cognizable offence pursuant to an order of a competent Magistrate under Section 155 (2) Dr. P.C. but, admittedly, no such order was passed in the instant case. P.C. of course, the police is entitled to investigate into a non-cognizable offence pursuant to an order of a competent Magistrate under Section 155 (2) Dr. P.C. but, admittedly, no such order was passed in the instant case. That necessarily means, that neither the police could investigate into the offence in question nor submit a report on which the question of taking cognizance could have arisen. While on this point, it may be mentioned that in view of the proviso to Section 2 (d) Dr. P.C., which defines 'complaint', the police is entitled to submit, after investigation, a report a relating to a non-cognizable offence in which case such a report is to be treated as a 'complaint' of the police officer concerned, but that explanation will not be available to the prosecution here as that related to a case where the police initiates investigation into a cognizable offence - unlike the present one - but ultimately finds that only a non-cognizable offence has been made out.” 12. Reliance is also placed upon judgment rendered by this Court in case titled Tilaknagar Industries Ltd and Ors v. State of A.P. and Anr, 2012 AIR( SC) 521, relevant para whereof is reproduced herein below: 4. Mr. Rai learned senior counsel appearing on behalf of respondent no.2 submitted that in a case like this, this Court is not called upon to go into all the factual allegations levelled against his client by the appellant. Mr. Rai further submitted labelling of the complaint or the FIR is not decisive. As the respondent No.2 has made a complaint, it is open to the Magistrate to take cognizance under Section 190 of the Code and direct investigation. After considering the rival submissions, we are of the view that the contentions of Mr. Luthra are correct in view of Section 155(2) of the Code as explained in Bhajan Lal. We are of the opinion that the statutory safeguard which is given under Section 155 (2) of the Code must be strictly followed, since they are conceived in public interest and as a guarantee against frivolous and vexatious investigation. The order of the Magistrate dated 21.06.2010 does not disclose that he has taken cognizance. However power under Section 156(3) can be exercised by the Magistrate even before he takes cognizance provided the complaint discloses the commission of cognizable offence. The order of the Magistrate dated 21.06.2010 does not disclose that he has taken cognizance. However power under Section 156(3) can be exercised by the Magistrate even before he takes cognizance provided the complaint discloses the commission of cognizable offence. Since in the instant case the complaint does not do so, the order of Magistrate stated above cannot be sustained in law and is accordingly quashed. We do not make any observation on the merits of the allegations made in the complaint. However, we make it clear that the complaint which has been filed against respondent no.2 may be treated in accordance with law. With these directions, this appeal is disposed of.” 13. Consequently, in view of the detailed discussion made herein above as well as law taken into consideration, this Court finds no illegality and infirmity in the judgment passed by the learned first appellate court, and as such, same is upheld. As a consequence of which, appeal fails and dismissed accordingly.