Sanjeev Kumar and Others vs State of H.P.

Surinder Singh, J.—Both the Criminal Revision Petitions are arising from the same judgment passed by the Courts below hence taken up together for its decision.

Petitioners felt aggrieved by the judgment of the learned Sessions Judge passed in Criminal Appeal No. 8/2001 dated 20.11.2002 maintaining the conviction of the Petitioners and sentence of fine of Rs. 1000/ -, exonerating them from substantive sentence as ordered by the learned trial court for the offences punishable under Sections 41 and 42 of the Indian Forests Act for the violation of Rules 11 and 20 of the H.P. Forest Produces Transit (Land Routes), 1978, in short "Transit Rules" promulgated under the Forest Act, for allegedly transporting 211 khair wood logs, owned by Kashmir Singh. While disposing of the main case, the learned Judicial Magistrate vide order dated 17.2.2001, forfeited his security bond to the State of H.P. which was executed by him while seeking release of the khair wood on sapurdari. The convicts have challenged the judgment of conviction and sentence passed by courts below in Criminal Revision petition No. 23/2003 and Kashmir Singh also filed separate revision petition No. 30/2003 on the ground that he was condemned unheard.

In short, prosecution case can be stated thus. Kashmir Singh was issued export permit on 9.2.1998 for transporting 515 khair logs from Teeka Samtana (Hamirpur) to Kattha Bhathi Deoli (Una) which was valid up to 20.2.1998.

It is alleged that permit had expired during the intervening night of 20-21.2.1998 at 12 hours but the Appellant Sanjeev Kumar and others kept on moving their truck and transporting the khair wood even thereafter. PW7 S.I. Kailash Walia heading a police patrol party on reaching near Khud-pul Daulatpur Gagret road, intercepted truck aforesaid loaded with 211 khair logs. Petitioner Subhash Chand was on the driving wheel and Rumail Singh was cleaner with him and other accused were accompanying the consignment. On being asked, they produced permit document Ext. P-1 and P-2 along with Parcha Hamrahi Ext. P-3 which were in the name of Kashmir Singh. Khair wood was being taken to Deoli (Una). Since permit had already expired, there was no mention that khair wood in question could also be transported after sun set and before sun rise. Thus, the Petitioners committed the offence punishable under Sections 11 and 20 of the Transit Rules framed u/s 41 of the Indian Forest Act for which punishment is double than normal. Consequently, truck was seized. The khair wood was got unloaded and taken into possession. Later, truck was released to its owner and on the application of Kashmir Singh khair-wood was given on sapurdari to him, on executing the bond to the tune of Rs. two lacs.

Accused/Petitioners (criminal revision No. 23/2003) faced trial; they were convicted and sentenced by imposing substantive sentence and fine by the learned trial Court. The bond amount of khair wood was ordered to be confiscated to the State, without notice to the Petitioner Kashmir Singh whereas in appeal they were exonerated from substantive sentence but fine as aforesaid remained which is stated to have been deposited.

Shri N.K. Thakur, Advocate, appearing for the Petitioner vehemently argued that there was no iota of evidence to prove that the Petitioners were transporting the khair wood in question in the truck, as alleged. According to him khair wood was of a legal origin and on 20.2.1998 at 5 p.m. the truck was parked with khair wood on the road side. Police took it into possession without any rhyme and reason and this fact which was borne out from the evidence, was ignored by the Courts below. He further submitted that Kashmir Singh Petitioner in criminal revision petition No. 30 of 2003 was neither an accused nor a witness in the case. Admittedly, he happened to be the owner of the wood in question. But the trial court, without giving any notice to him ordered for the forfeiture of the bond and the lower appellate Court without considering this fact, against the cannons of natural justice, upheld the order of forfeiture of bond amount.

On the other hand, Shri J.S. Rana, learned Assistant Advocate General supported the judgment of conviction and sentence and also the forfeiture order passed by the Courts below but frankly and squarely admitted that no notice was issued to Kashmir Singh.

To examine the legality of the impugned judgment/orders, I have gone through the evidence on record.

At the very out set, I would like to say that the Petitioners did not impute any motive or malice to the Police. The intercepting of the truck loaded with khair wood is not denied, but the date, time and place are disputed. It stands proved on record that the police had apprehended them along with the khair wood which was being transported during the night and all the official witnesses are unanimous in their depositions. No doubt, the occupants of the truck were having valid documents with them and the wood in question was properly hammer marked, but permit was valid till 12 hours during the night of 20.2.1998. The police had intercepted the truck in question at 1 a.m. on 21.2.1998 while transporting 211 khair wood logs, which fact has also been corroborated by PW3 S.I. Surender Sharma as well as by other witnesses, accompanying PW7 aforesaid. There is no ambiguity in their statements. In cross-examination they categorically denied the suggestion that the truck was stationary and not in the process of transporting the wood. Pertinently this defence taken in cross-examination was not probablised by the Petitioners more specifically in their statements u/s 313 of the Code of Criminal Procedure. Even the Investigating officer was not questioned with respect to the site plan wherein there is also a mention of the fact that it was intercepted at the place to which they also testified during the trial of the case. Therefore, learned trial Court as also in appeal, the courts below took proper note of these facts and aptly observed that the defence version was calculatedly false, invented only to save themselves. Therefore, it was rightly rejected. In view of this situation, conviction was also rightly maintained and sentence was modified by retaining the fine by the learned Sessions Judge, which in the circumstances cannot be interfered with. Therefore, the criminal revision petition filed by the convicts/Petitioners deserves to be dismissed.

In so far as forfeiture of the bond executed by Kashmir Singh Petitioner is concerned, he was neither an accused nor a witness in this case. The documents with respect to khair wood Ext. P1 to P3 were in his name. He sought the release of the khair wood on sapurdari, which was allowed, subject to furnishing the bond to the tune of Rs. two lacs which was furnished by him to which he did. While disposing of the matter, learned trial Court did not issue any show-cause notice to him, that in the circumstances, as to why the sapurdari bond be not forfeited to the State.

It is a settled principle of natural justice that no one can be condemned unheard. Admittedly, no show-cause notice was given to Kashmir Singh, thus, he was not heard, therefore, the order of forfeiture of the bond passed by the learned Judicial Magistrate could not have been held valid by the Court of Sessions merely on the ground that it was not challenged before him. The appeal was filed before him by the convicts not by Kashmir Singh, they should assail the order in appeal by which Kashmir Singh was affected. As such, order of forfeiture of bond against Kashmir Singh passed by the trial Court and affirmed in appeal as aforesaid is unsustainable, hence set aside. Consequently Criminal Revision Petition No. 30 of 2003 is allowed. The matter only to the extent of hearing the Petitioner qua the forfeiture of bond is remanded to the learned trial Court. Thus, it is directed that the learned trial Court shall issue a show-cause notice to the Petitioner Kashmir Singh and after affording him a reasonable opportunity of being heard, pass an appropriate order, in accordance with law.

For the foregoing reasons, Criminal Revision Petition No. 23 of 2003, filed by the convicts is hereby dismissed whereas Criminal Revision Petition No. 30 of 2003 assailing the order of forfeiture of bond executed by Kashmir Singh petition is allowed as aforesaid. Both the petitions stand disposed of Record of the court below be sent down.