AMAR SINGH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The petitioner was convicted under Section 41/42 If the Indian Forest Act and sentenced to undergo simple imprisonment for four months and also to pay a tine of Rs. 500/- and in default to undergo further simple imprisonment for three months by the Judicial Magistrate, Shimla vide his order dated September 20, 1982. His appeal against this aforesaid conviction and sentence has been dismissed by the Sessions Judge. He has now approached this court in revision to seek the quashing of his conviction and sentence.

(2.) The facts of this case reveal that the petitioner had obtained a valid permit from the Divisional Forest Officer, Forest Division, Simla for the export of 492 pieces of different kinds of timber as detailed in the Permit Ex. P.D/1. Since the petitioner intended to export the timber mentioned in the permit outside the State through rail, he had transported the entire quantity of timber to Shoghi railway station on various dates between 11.7.1980 to 20.7.1980. While carrying the timber from hrs place to Shoghi railway station the petitioner had to cross the Forest Barrier at Dhalli. H. had presented the challans Ex. PG/I to Ex PG/S at the Forest Barrier Dhalli in respect of the timber transported by him to Shoghi and which the officials at the Forest Barrier are supposed to have checked and found in accordance with the permit issued in favour of the petitioner. The life of the permit expired on 29.7.1980 and unless it was renewed the timber could not be despatched from Shoghi railway station. It appears that in the meantime the police received information on 23.7.1980 to the effect that certain forest contractors bad stacked their timber at railway station Shoghi which was in excess of the timber mentioned in their respective permits. On that information a raiding party was constituted and raid was conducted on the platform of the Shoghi railway station where the timber was stacked. The evidence led in the case shows that six or seven forest contractors had stacked their timber at Shoghi railway station and it further reveals that the lots of various contractors had been lying mixed at the railway station. The police claim that they recovered inter alia 474 Ballies of Kail from the lot of the petitioner which was bearing hi property mark A 5 as against 332 Ballies mentioned in the permit Ex P0/I issued in his favour. The petitioner had thus transported to Shoghi railway station for export 142 Ballies in excess of tile quantity mentioned in his permit. It was further alleged by the prosecution that the timber of the petitioner found at Shoghi railway station was not bearing the requisite export hammer mark.

(3.) The plea of the petitioner was that he had transported timber to Shoghi railway station strictly in accordance with the permit issued to him and that there was no excess timber found in his lot lying at the Shoghi railway station. His further plea was that the timber transported by him by road from his place lip to Shoghi had been actually verified at Dhalli Forest Barrier when it crossed the same and where challans Ex. PG/I to Ex. PG/5 were presented. The main point that arises for consideration in this case is whether there was any excess timber found at the railway station Shoghi in the lot which the petitioner had stacked at that station for export outside the State. I was carried through the entire evidence on record in the presence of the learned counsel for the petitioner and the Assistant Advocate General appearing for the State. There appears to be no reliable evidence which could justify the conclusion that 474 Ballies were found lying stacked in the lot of the petitioner at the Shoghi railway station as against 332 Ballies mentioned in the permit. Besides the Investigating Officer, Shri Ram Lal (P.W.1), the prosecution examined four other witnesses, namely, Shri Ram Dutt (PW.2), Shri Mohan Singh (P.W.3), Shri Satish Kumar (P.W. 4) and Shri Jagdev Singh (P.W. 7) to prove that 142 Ballies were found in excess in the lot of the petitioner lying at the railway station. None of these witnesses were, however, in a position to depose about the quantity of Ballies or other timber found in the lot of the petitioner lying at the railway station Shoghi. P.W. 2 Shri Ram Dutt in his cross-examination frankly admitted that the timber of the various contractors was lying inter-mixed at the railway station and it was not possible to find out as to which timber belonged to which contractor. P. W. 3 Shri Mohan Singh is the Forest Guard to whom the timber in question is alleged to have been entrusted after its seizure vide Memo Ex. PA. He also admitted in his cross examination that the timber of as many as six contractors was lying at the railway station on the day of the seizure and that all these lots were mixed up. He next stated that a sample was taken out from this mixed lot which in terms of Memo Ex. P.A. had been described as the sample pertaining to the present petitioner. He also admitted that he was not in a position to find out as to which timber belonged to which contractor. According to this witness there were several pieces of timber lying which were bearing no hammer mark. In other words, in the absence of any hammer mark it was not possible to say if the particular pieces of timber without any hammer mark belonged to any particular contractor. This witness then rightly admitted that in the absence of any hammer mark it was not possible to find out the owner of that timber. Though, according to Ex. P.A. the timber seized had been entrusted to this witness, he in his examination-in-chief had stated that the timber seized had been entrusted to Jagdev and Satish. This only shows that Ex. PA was a fictitious document. Satish Kumar who appeared as P.W. 4 also could not support the prosecution any better. He frankly admitted that the pieces of timber lying on the spot were not counted either by him or in his presence. He was also not in a position to say if the timber lying on the spot in the lot of the- petitioner was in accordance with his permit or not. He also admitted that the timber of seven or eight contractors were lying on the spot and the same was so inter-mixed that it was not possible to say as to which timber belonged to which contractor. With respect to the Memo Ex. PA to which he is a signatory the witness stated that this Memo had already been prepared when he was summoned by the police on the spot and he signed the same without knowing its contents. In the end he expressed his ignorance about the fact if no illicit timber of the petitioner was found lying on the spot. The next witness Jagdev Singh (P.W. 7) stated in his cross-examination that he was taken to a heap of timber lying at the railway station and the said heap contained timber pertaining to eight contractors. He was not in a position to state if the pieces of timber lying in that heap were bearing any hammer mark. With respect to his signatures appearing on Memo Ex. P A he also stated that he signed the same at the instance of the police without knowing .the contents thereof. Thus none of these so-called independent witnesses was in a position be say if there was any separate lot of timber belonging to the petitioner lying at the railway station Shoghi or if the timber lying in such lot was actually counted pr of such timber was inspected to find out if the same belonged to the petitioner which fact could be as curtained only by verifying the existence of properly mark of the petitioner, namely, A5. The evidence of these witnesses is thus of no help to the prosecution. The only other witness is the Investigating Officer, Inspector Ram Lal, the author of the Memo Ex. P.A. According to him, the entire timber mentioned in Ex. P.A. comprising of 474 Ballies, 18 Pallus, 20 Scants and 7 Dimdimas, was found without any export hammer mark. He then added that there was some other timber of the petitioner also lying at the railway station which was bearing export hammer mark. This obviously shows that the witness had n9 knowledge of the actual quantity of the timber lying at the railway station Shoghi and it was from his own imagination that he had deposed about other timber of the petitioner lying at the railway station and bearing export hammer mark. It may be observed that export hammer mark is fixed only by the officers of the Forest Department and no such officer has come forward to depose if such export hammer mark was fed by him on any part of the timber belonging to the petitioner. Again, if there was any such timber bearing export hammer mark and belonging to the petitioner lying at the railway station the same should also have been taken into account while finding out the illicit timber of the petitioner which was in excess of the quantify mentioned in the permit Ex. P0/i and lying at the railway station. The mere fact that this Inspector treated only 142 Ballies as illicit shows that no other timber bearing export hammer mark and belonging to tile petitioner was found lying at the railway station. In fact no other witness has deposed to that effect.