State of Himachal Pradesh vs Rattan Chand

Bhawani Singh, J.—The State of Himachal Pradesh has a grievance against the judgment of Additional Sessions Judge (Special-II), Shimla, thereby acquitting the-accused in Criminal Appeal No. 8 S/10 of 1984/39-S/10 of 1985 decided on 28th February, 1986, and setting aside the judgment of Sub Divisional Judicial Magistrate, Theo, convicting the accused u/s 42 of the Indian Forest Act and sentencing him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500/-in default of payment of fine to undergo further rigorous imprisonment for a period of one month.

The facts, in brief, are that on December 4, 1980, District Inspector of Police Gurbaksh Singh (PW-3) accompanied by Sub Inspector Prem Lal, Asstt. Sub-Inspector Shakti Chand, Deputy Ranger Prem Singh (PW-1) and Range Clerk Gita Ram (P.W.-2) were at Kotkhai in connection with special checking of timber transport. Truck bearing Registration No. HPS-3633 driven by the accused, loaded with-timber, coming from Jubbal to Shimla was intercepted at Kotkhai for checking. It was found that the timber belonged to Yash Pal Garg. According to the challan accompanying the vehicle and the export permit, timber measuring 7.89 Cubic meters was shown to have been loaded in the truck at that time. The total number of scants, as per these documents, was 182. The vehicle was brought to Chhaila where the timber was unloaded and measured by Sh. Gita Ram (PW-2) and it was found 13.20 Cubic meters in volume instead of 7.89 cubic meters as shown in the challan and the export permit although the total number of scants did not vary. As a consequence of this, the timber was seized at the spot and handed over to Prem Singh (PW-1) ok sapurdari. The challan, bill, sales tax form and bill of loading were also taken into possession. Besides the truck, its registration certificate, insurance certificate and route permit were also taken into possession by the Police. A case u/s 420 I.P.C. read with Sections 41 and 42 of the Indian Forest Act was registered vide FIR No. 167 of 1980. On completion of investigation, a challan was presented before the Court against the accused and one Sh. Ranjit Singh. Sh. Ranjit Singh" was discharged u/s 420 I.P.C. along with the accused. However, prima-facie case u/s 41 and 42 of the Indian Forest Act was found against both and they were proceeded against accordingly. Both of terns pleaded not guilty and claimed to be tried. The trial ended in the conviction of the accused Rattan Chand u/s 41 and 42 of the Indian Forest Act while Sh. Ranjit Singh wasiaoquitted

On appeal, the appellate court vide the impugned judgment acquitted the accused as well. Hence this appeal by the State against this acquittal.

The accused neither appeared in person hot through any counsel although in the trial court as well as before the appellate court he was defended by defence counsel. On perusal of the record, k is found that he was duly served. The record has beam thoroughly scrutinised to see that in justice is not done to the accused on account of his absence.

Sh. M.S. Guleria, Assistant Advocate General, has contended that the judgment under appeal is thoroughly bad and against the evidence on record. The way the learned Sessions Judge, in appeal, dealt with this matter, it shows that the court was neither aware nor actually under stood the; issue before it. Reference to the decision of the trying Magistrate is made to assert that the judgment of conviction passed by it is based on clear, cogent and convincing evidence and the same should not have been lightly set aside by the appellate court on the grounds taken note of for the acquittal of the accused. I proceed to examine'' these submissions.

It is a fact that the accused was driving, truck No. HPS-3S33 at the relevant time and carrying 182 scants of timber. He was intercepted by the District Inspector of Police Sh. Giffbaksh Singh (PW-3) on December 24, 1980. The driver presented, on demand the export permit and the challan wherein the volume of timber was mentioned 7.89 cubic meters. It is also in evidence that the timber was unloaded and measured at Chhaila by Gita Ram (PW-2) in the presence of all these persons and at time it was found that although the total number of scants being carried was 182, the volume, was 1''3.20 cubic meters instead of 7.80 cubic meters. Such a big variation. A perusal of the challan, (Ex.PW-1/D) when, compared with the recovery memo (Ex. PW-1 /A) clearly establishes that this much of timber was being carried without proper permission and documents as required. It a clear violation of the provisions of Sections 41 and. 42 of the Indian Forest Act read with Rule 11 of the Himachal Pradesh Transit of Timber Rules. The argument of the accused that he was only a driver of the truck and was not therefore, responsible for the nature and for the volume of the timber in question cannot be accepted to be a true and legal explanation. The accused who is present at the time of loading of timber and it is who accepts the timber for transport and receives the challan and the documents from the supplier. The nature and volume of timber in the challan clearly indicates a marked difference with, the timber which is being actually loaded as the sizes are entirely different and anyone could ascertain and understand the nature, sizes and volume etc. of the timber with this marked difference. The reasoning and conclusion of the appellate court on the basis of a freak statement of Gita Ram (PW-2) that measurement of timber is a technical job is, in my opinion, of no consequence. Anyone could do the measurement of timber and difference between sizes and volume is easily, decipherable. Simply because the truck carrying this timber passed through Khara Pathar check post does not mean that the measurement ultimately done at Chhaila was wrong. It appears that the official of the Forest Department at Khara Pathar Check post simply counted the number of scants and allowed the vehicle to move on. This may be right because timber is not usually unloaded at every check post and measured and then re-loaded. Timber of different sizes is measured and hammer marked at a particular place before actual loading. During the time of loading, timber of different sizes and volume is loaded in the truck with the idea to save tax at the barriers and such a crime is detected only when toughly checked by any investigating agency as has been done in the present case. Truck operation and drivers if do not lend a hand to the unscmplous transporters of timber, forest wealth worth cores of rupees would not have been destroyed at the cost of State, nation and in various forms like tax, revenue and ecology. The learned Sessions Judge did not deal with this matter in a very routine and casual manner which approach is in accordance with law nor can it be based on right understanding of evidence on the record. There was no fresh ground for the appellate court to set aside or vary the judgment of the trial court. The result is that the appeals allowed. The judgment dated February 28, 1986 of the appellate court is set aside and the conviction of the accused as ordered by the trial court is upheld. On the question of sentence, I feel that the ends of justice will be met by imposition of fine to the extent of Rs. 500;- and in default of payment of fine the accused to undergo simple imprisonment for a period of four months. This lenient view has been taken in view of the long lapse of time from the date of commission of the offence as well as in the absence of any past conviction of the accused.