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Judgment
Surinder Singh, J.—The State has challenged the acquittal of the respondents for the offences punishable under Sections 41, 42 of the Indian Forest Act read with Rules 11/20 of Transit (Land and Route) Rules, 1978.
Precisely, the case of the prosecution can be stated thus. PW9 Head Constable Raghubir Singh was posted at Check-Post, Behral, Tehsil Paonta Sahib. On 5.9.1997 at about 1.20 a.m. truck No. HPN-471 reached the Barrier. It was stopped for checking. PW9 aforesaid found 15 drums each drum of 100 liters concealed under 235 bags of chemical powder containing some brown substance. The truck was being driven by respondent No. 1 Rashid Mohammad. He produced the builty of the chemical powder, but he could not offer any explanation with respect to the contents of 15 drums of which according to HC Raghubir Singh (PW9) smelt like Katha (the resin of Khair tree). Respondent No. 2 Dinesh was the Cleaner of the truck and respondent Sudhir was an occupant. Thus a Ruqa Ext.PW12/A was sent for the registration of the case, which culminated into the present FIR.
HC Raghubir Singh aforesaid took one bottle from each of two drums as samples and these were sealed with seal impression �A� in the presence of the witnesses.
The truck was impounded and all the three accused persons were arrested. During their interrogation they were found to have transported the aforesaid forest produce at the behest of respondent No. 4 Sukhdarshan Singh, who was running ''Doon Katha Factory at Misherwala�. Police also arrested him, but later all the accused persons were released on bail. The case property was claimed and released to respondent No. 4.
After completing the Challan, it was presented for the trial of the accused persons. Accused No. 3 Sudhir jumped out the bail and absconded. Accordingly, he was declared Proclaimed Offender. The remaining three accused persons were charge-sheeted, tried and acquitted for the offences aforesaid on the ground that the prosecution failed to prove that the drums aforesaid contained Katha, a forest produce.
Shri P.M. Negi, learned Deputy Advocate General, forcefully argued that the learned trial Court did not properly appreciate the evidence on record which led to the miscarriage of justice. It is also argued that respondent Sukhdarshan Singh had moved an application for the release of the drums of Katha, as such it stands proved that it was his Katha which was caused to be transported by him through respondents No. 1 to 3.
On the other hand, Shri Ramakant Sharma, learned Counsel for the respondents countered the above arguments on the ground that the release application cannot be taken as a circumstance against the respondents as it was never relied upon by the prosecution during the trial of the case nor put to the accused persons in their statements recorded u/s 313 of the Code of Criminal Procedure. He also ventilated that the chemical report of the above substance was not produced and proved by the prosecution to attract the provisions of Sections 41 and 42 of the Indian Forest Act.
I have given my thoughtful consideration to the respective contentions of the parties and have carefully gone through the evidence on record.
To fall the case under the above provisions of Forest Act, it is sine-qua-non on the prosecution to prove that the accused persons were transporting or causing to transport, a ''forest produce'', without valid permission. It is proved on record that two bottles from each of the two drums were taken as samples by PW9 aforesaid which were alleged to have been sent for chemical examination, but till date the report of the chemical examination has not been produced on record, as to what it contained. In these circumstances the adverse inference certainly has to be drawn against the prosecution. The oral evidence that it was Katha can not be read as none of the witnesses saying so confirms to the requirement laid u/s 45 of the Indian Evidence Act. Thus, in my considered opinion, it cannot be held that the drums aforesaid contained a forest produce.
Also, I find that the application for the release cannot be used against the accused persons as an incriminating circumstance for the reason that it was never relied upon by the prosecution during the trial before the learned trial Court nor it was put to the accused persons to seek explanation from them in his/their statements recorded u/s 313 of the Code of Criminal Procedure, therefore, it can also not be used against them more specifically when prosecution was not able to prove it a forest produce.
For the aforestated reasons, in my considered opinion, acquittal of the respondents cannot be interfered with as the findings of acquittal are borne out from the evidence on record and in exercise of the powers vested u/s 482 of the Code of Criminal Procedure, the order of the learned trial Court declaring accused No. 3 Sudhir as Proclaimed Offender is also quashed and set aside, as no purpose shall be served for trying him for the offence which is otherwise prima facie not made out. Accordingly, the appeal is dismissed and the respondents are discharged of their bail bonds entered upon by them during the proceedings of this case.
Send down the record forthwith.