Anwar Hussain vs The State Of Jharkhand on 5 March, 2021

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Jharkhand High Court

Anwar Hussain vs The State Of Jharkhand on 5 March, 2021

Equivalent citations: AIRONLINE 2021 JHA 138, 2021 (3) AJR 277

2. This appeal arises out of judgment of conviction and order of sentence dated 05.09.2002, passed in S.T. No. 196/98, by the learned Additional Sessions Judge, Fast Track Court-I, Chatra, whereby and whereunder, appellants have been convicted for the offences under Sections 379 and 411 of the Indian Penal Code and Section 16 of the Bihar Kendu Leaves (Control of Trade) Act, 1973 and have been sentenced to undergo RI for 2 years for the offence under Section 411 Indian Penal Code and RI for 6 months for the offence under Section 16 of the Bihar Kendu Leaves (Control of Trade) Act, 1973. Both the sentences were ordered to run concurrently. No, sentence was passed under section 379 of IPC.

3. The prosecution case as per the offence report is that on 24.04.1995 at about 6:00 p.m., when the forest personnels were on patrolling duty, they saw a truck coming in the village Gangpur from Gangpur - Patthalgada road. When they intercepted the truck bearing registration No. BHM 6210 and examined it, they found the truck loaded with Kendu leaves. The forest personnels demanded papers in respect of Kendu leaves then driver handed over Transport Permit Form N0.1 of Bihar State Forest Development Corporation Limited Sal Biz Project. The said transportation permit was of the year 1991 but the seal was of 1994. Dakpatti was also produced which was written on blank paper and in the aforesaid permit 125 bags of Kendu leaves were shown. On verification, it was found that the transportation permit presented by the driver was forged and fabricated because the permit presented was for transportation of Sal Biz Project. The permit presented was Transport permit Form no-1 whereas for transportation of Kendu leaves from one godown to other godown, Transport permit Form no-2 is used. In the permit presented by the driver no unit was mentioned with respect to Kendu leaves though it is necessary to mention unit, in the Transportation Permit Form of the Kendu leaves. The further case of prosecution is that when authorities were satisfied that kendu leaves loaded on the truck no. BHM 6210 is illegal then truck diver Anwar Hussain an Khalasi Karu Mahto were taken in custody and truck no. BHM 6210 along with kendu leaves were seized under section 14 of Bihar Kendu Leaves(Control of Trade) Act,1973. The seizure list was prepared at the place of occurrence itself. The owner book of the truck was seized from the truck on which registration number of the truck was shown as BHM 6210 and owner of the truck was Mahesh Prasasd Jaiswal son of M.P. Jaiswal and address was written as Imli Kothi, Hazaribagh. On verification, it was found that there was no godown of Kendu leaves neither at at Gangpur nor at Teliya. The further case of prosecution is that truck owner Mahesh Prasad Jaiswal S/o late M.P. Jaiswal resident of Imli Kothi, Barkagaoen Road, Hazaribagh with the help of driver and khalasi by theft, illegally stocks the Kendu leaves and are engaged in business of Kendu Leaves.

4. On the basis of the offence report, learned C.J.M. took the cognizance of the offences and the case was committed to the Court of Sessions. Charges were framed against the four accused persons i.e. one 3 Arvind Kumar Singh including the three appellants herein under section 379, 411, 412, 420, 468 of IPC and under section 16 of Bihar Kendu Leaves Act. Trial was held and at the conclusion of the trial, one of the accused person namely Arvind Kumar Singh was acquitted of the charges but the remaining accused persons or the appellants herein were convicted and sentenced as aforesaid. Hence, this appeal.

5. Prosecution has examined altogether five witnesses in support of its case. PW-1 is Ram Bijay Singh; PW-2 is Bachu Singh ; PW-3 Rajendra Rai; PW-4 Rajeshwar Yadav and PW-5 Kanhai Paswan is the Jeep driver.

6. PW-1 is Ram Bijay Singh. PW-1 has stated in his evidence that the incident is of 24.04.1995 in the evening at 6 O'clock and at that time, he was posted as Forest Guard at Chatra Range. PW-1 further stated that on that day, he was on patrolling duty along with Range Officer Triloki Pandey, Forest Guard Bachu Singh, Forest Guard RajeshwarYadav and Jeep driver Kanhai Paswan. While patrolling, when they reached the village Gangpur, they saw a truck loaded with Kendu leaves covered with tirpal. The said truck was bearing registration No. BHM 6210. On the said truck, driver Anwar Hussain and khalasi Karu Mahto were present. Papers were demanded from the driver, then driver handed over a permit issued in the year 1991, however, year 1994 was made with the hand. On the said permit, 125 bags loaded at village Gangpur was written. The name of the authority was written as Mahesh Prasad Jaiswal. PW-1 further stated that on the said permit, the unit name was not indicated but in valid permit, unit is indicated. On investigation, it was found that on the basis of fabricated permit Kendu leaves of 143 bags were loaded on the truck bearing registration No. BHM 6210. The seizure list of Kendu leaves, truck and documents of truck were prepared and the truck along with the Kendu leaves were seized. The owner book of the truck was in the name of Mahesh Prasad Jaiswal. PW-1 further deposed that the hand writing and signature on the seizure list is of the then Range Officer Triloki Pandey. The seizure list also bears the signature of Forest Guard RajeshwarYadav, Forest Guard Bachu Singh and Jeep driver Kanhai Paswan. The seizure list was marked as Ext.-1. P.W.-1 has proved his signature on the said seizure list, which was marked as Ext. 1/1. P.W.-1 further deposed that the Range Officer, Triloki Pandey, had already passed away. Statements of the 4 driver Anwar Hussain and khalasi Karu Mahto was taken by Triloki Pandey. Accused were taken into custody and then brought to the Forest Office in Chatra. Thereafter, they were sent to jail and Kendu leaves were kept in the godown. P.W.-1 has recognized the accused in the dock. In para-11, he has deposed that dakpatti, which was with permit, is not before him and he does not know what was written in the dakpatti. In para-13, he has deposed that he has no personal knowledge of the seized permit and the dakpatti.

7. PW-2 is Bachu Singh, Forest Guard. PW-2 has stated in his evidence that on the day of occurrence on the instruction of the Range Officer, Chatra, Triloki Pandey, he had gone along with him to the jungle and reached Gangpur village. He saw that from the direction of Gangpur village, a truck was coming which was loaded with Kendu leaves and covered with tripal (canvas). They stopped the truck and removed the canvas and found Kendu leaves on the truck. Truck was bearing registration No. BHM 6210 and on it the driver Anwar Hussain and khalasi Karu Mahto were present. We took the permit and gave it to the Range Officer. Range Officer, Triloki Pandey, examined the permit and found the permit forged. Thereafter, as per instruction of Range officer, they made a seizure list of the truck, Kendu leaves and permit and he put his signature on the seizure list. PW-2 has proved his signature on the seizure list, which was marked as Ext.1/2. Thereafter, they took the driver and truck to the Range Office, Chatra, and the driver and the khalasi were sent to the jail. In para-4, PW-2 has claimed to identify both the accused in the dock. In his cross-examination, PW-2 has deposed that he had not examined the truck permit. On the direction of the Range Officer, he had only seized the truck and caught hold the driver. He does not have any personal knowledge regarding the permit of the truck. Permit is not before him at the moment and he cannot say whether the permit was proper or improper. In para-7 he has deposed that a seizure list was prepared on the place of occurrence.

8. PW-3 Rajendra Rai is forester. He has deposed that offence report bears the signature of the then Forest Range Officer, Triloki Pandey, which he recognizes. He has proved the signature of Triloki Pandey, which was marked as Ext.1/3. PW-3 has further deposed that signature was not signed in his presence.

9. PW-4 Rajeshwar Yadav is forester. He has stated in his evidence that incident is of 24.04.1995 at 6 O'clock in the evening. He was a member of patrol team along with Forest Guards Ram Bijay Singh, Bachu Singh, jeep driver Kanhai Paswan and Forest Range Officer Triloki Pandey. They had reached Gangpur chowk at about 6 O'clock. They saw a truck coming from the direction of Gangpur-Pathalgadda road and the said truck was stopped and when the canvas was removed they saw that it was loaded with Kendu leaves. Papers were asked for and the documents which were given was fabricated. The number of the truck was BHM 6210 and on the truck, truck driver Anwar Hussain and khalasi Karu Mahto were present. They seized the truck and the Kendu leaves. P.W.-4 further stated that a seizure list was prepared by the Range Officer, Triloki Pandey on which he had put his signature. P.W.-4 has identified his signature on the seizure list which was marked as Ext.1/4. P.W.-4 further stated that khalasi Karu Mahto and driver Anwar Hussain had also signed on the seizure list in his presence. He has proved the signature of Karu Mahto which was marked as Ext. 1/5.

10. PW-5 Kanhai Paswan is Jeep driver in Forest Department,Chatra . He has stated in his evidence that the seizure list dated 24.04.1995 bears his signature. PW-5 has proved his signature on the seizure list which was marked as Ext.1/6. He has deposed that he had signed on the seizure list at the DFO Office at Chatra and nothing was read out to him. PW-5 has further stated that he was asked to sign that is why he signed and nothing was seized in front of him.

Argument of learned senior counsel for the appellants:

11. Learned senior counsel for the appellants has argued his case by first of all indicating some of the relevant provisions of the Bihar Kendu Leaves (Control of Trade) Act, 1973. He has argued that it would be relevant to take into account sections 3, 4, 5, 15, 16 and 18 of the Act. Learned senior counsel has argued that as per section 3 of the Act first and foremost it is necessary for the State Government by notification in an official gazette to declare any area or any particular area to be a specified area for the purpose of this Act. Thereafter, learned counsel he has pointed out Section 4 of the Act and submitted that the State Government may for the purpose of purchase and sale of Kendu leaves on its behalf appoint agents in respect of different units and any such agent may be appointed in 6 respect of more than one unit but not more than three units. Learned senior counsel has further pointed out Section 5 of the Act and submitted that section 5 lays down the restriction on purchase or transport of Kendu leaves on the declaration of specified area under Section 3 of the Act that no persons other than the State Government, or Officer of the State Government authorized in writing on that behalf or an agent in respect of the unit in which kendu leaves have grown shall purchase kendu leaves from the grower in that area or transport the same. Thereafter, learned senior counsel for the appellants has pointed out Section 15 of the Act and submitted that as per this section, Forest Officer, not below the rank of Ranger or such other Officer, as may be authorized by the State Government in this behalf, can hold inquiry into the offence relating to any contravention of any provision of this Act and in course of such inquiry, receive and record evidence. Further, learned counsel pointed out section 15(2) of the Act and says that any evidence recorded under sub-section (1) of Section 15 of the Act shall be admissible in any subsequent trial before a Magistrate, provided that such evidence has been recorded in the presence of the accused persons. Learned senior counsel for the appellants submits that in the case in hand inquiry has been done by the Range Officer and hence the proviso to Section 15 has been violated because evidence has not been collected in front of the accused. Learned senior counsel for the appellants submitted that in the offence report, no where it is stated that the statements of five witnesses have been recorded, let alone in presence of the accused persons. Learned senior counsel for the appellants has then pointed out Section 16 of the Act and submitted that section 16 is penalty provision which provides that any person, who contravenes any of the provisions of this Act shall be punished with imprisonment, which may extend to one year or with fine, which may extend to one thousand rupees or with both. Learned counsel further submits that further penalty is that the whole of Kendu leaves in respect of which such contravention has been made or such part thereof as the Court may deem fit or the sale proceeds thereof, as the case may be, shall be forfeited to the State Government. Learned senior counsel has continued to argue that in relation to Section 15 and Section 16, the charge is vague. It has not been specified as to exactly what offence is under the Kendu Leaves Act. He has argued that 7 there is usage of the word 'theft' in the charge; however, theft is not there in the provision.

12. Learned senior counsel for the appellants has also referred to Section 18 of the Bihar Kendu Leaves (Control of Trade) Act, 1973 and pointed out that Section 18 of the Act deals with cognizance of the offence. Learned counsel submits that as per section 18 of the Act, no Court shall take cognizance of any offence punishable under this Act except on a complaint in writing of the facts constituting such offence not below the rank of Divisional Forest Officer or any other Officer authorized by the State Government in this behalf. Learned counsel for the appellants argues that complaint was not done by the DFO but the complaint was done by the Range Officer. Learned counsel, in fact, points out that both the complaint and offence report were done by the Range Officer, therefore, cognizance is bad. Compliant has to be done by the DFO or any other Officer authorized by the State Government in his behalf and in the case in hand, it has definitely not been done by the DFO and nor is it stated or indicated by the prosecution that the Officer, who made the complaint, was authorized by the State Government. In any way, it is the Range Officer, who is both the complainant and the submitter of the offence report. Learned counsel, therefore, says that the lodging of the prosecution report by the Range Officer is a violation of Section 18 of the Act. Learned counsel for the appellants has also pointed out from the evidence of PW-1 Ram Bijay Singh, Forest Guard and submitted that nowhere this PW-1 has said that his statement was recorded before the Inquiry Officer. Learned counsel for the appellants has also submitted that similarly PW-2, who is one Bachu Singh, Forest Guard, has also nowhere said that his statement was recorded before the Inquiry Officer.

13. Learned senior counsel for the appellants has then taken this Court to sections under which convictions of the appellants have been done under the IPC. He has argued that it is not the case that the Kendu leaves have been taken from the Forest Department; nevertheless, still charge under Section 379 IPC was involved. It is not said in the prosecution report as well as the offence report that the Kendu leaves were taken out from the Forest Department, Jungle or the precise area from where the Kendu leaves were taken is not specified. Similar arguments can be made in analogy for Section 411 IPC wherein it is only charged that the Kendu 8 leaves, in question, were "belonging to the Forest Department", but, where exactly these leaves originated from is not indicated.

14. Learned senior counsel for the appellants has also argued that the evidence of PW-5 Kanhai Paswan, who is the Jeep driver and purportedly a seizure witness is of much relevance. Learned counsel has argued that he was present in the spot and in fact, he was driving official Jeep and he has been made a seizure witness; however, this witness himself has said that he signed the seizure list not at the place where seizure is said to have taken place, but in the office of DFO and therefore that itself is not a proper procedure. Hence, on this basis itself, the seizure becomes faulty and defective and in the entire prosecution case becomes doubtful. Learned counsel has further said that accused were merely instructed to sign and accordingly, they did so and nothing was seized in their presence. Learned counsel says that it is to be noted that this witness apparently belonged to the Forest Department then he should have at least taken the line of the Forest Department or the other witnesses but PW-5 has apparently made categorical denial and therefore, if his evidence is taken as true then it is in contradiction to the evidence of the other seizure witnesses. Therefore, what is to be believed and what is not to be believed is an important point for the Court's consideration.

15. Learned senior counsel for the appellants has further argued that appellants were acquitted for the charge under Section 468 IPC and it was regarding the forged permit on the basis of which transportation was being done. Learned counsel, therefore, says if acquittal is given for such fabricated or forged permit for transportation then said benefit of acquittal should also be extended under sections 379 and 411 of IPC as well as under Section 16 of the Bihar Kendu Leaves (Control of Trade) Act, 1973.

16. Learned senior counsel has also argued that the prosecution report has not been proved but only the signature of the complainant was proved. It is unfortunate that the complainant passed away but then he has not been able to himself prove the prosecution report.

17. Learned senior counsel has also argued that learned court below has without evidence convicted appellants under Section 379 and section 411 of IPC. Learned counsel says that prosecution has to first establish that the accused had obtained property by theft, robbery, extortion or criminal breach of trust and thereafter, acquired the said property and in this case, 9 the said kendu leaves. However, no offence under Section 379 IPC has been proved against the appellants or against any other parties and after such theft the kendu leaves were acquired by the appellants and therefore, the offence under Section 411 IPC also fails and hence, cannot be sustained. Further, no witness has said anything about the theft and therefore, consequent to the theft whether such kendu leaves were then acquired by the appellants is not proved. Learned counsel further submitted that from where the theft was precisely done, simply saying from forest or Forest Department will not suffice. It has to be precisely said where in the forest or where in the Forest Department the theft had occurred and it is this property, which is the subject matter of theft, which is now in the hands of the appellants, so as to bring the offence under Section 411 IPC but, this is not the case.

18. Learned senior counsel for the appellants has also argued that the criminal trial pertaining to Sections of the IPC are related to Sections 4 and 5 of the Cr.P.C. He has also argued that in the allegations in hand, both the offences under IPC as well as the Bihar Kendu Leaves (Control of Trade) Act, 1973 have been alleged. Learned counsel has argued that for the offences under the Bihar Kendu Leaves (Control of Trade) Act, 1973, the procedures under Sections 4 and 5 of Cr.P.C. and under Sections 154 to 173 Cr.P.C. cannot be brought into operations and the Bihar Kendu Leaves (Control of Trade) Act, 1973 being a Special Act, procedures under the Special Act will prevail. Since the investigation under the Special Act has also been brought under the purview of relevant Cr.P.C. provisions, therefore, conviction under the Special Act cannot be sustained. Similarly, learned senior counsel has said that a Forest Department can only deal with the Bihar Kendu Leaves (Control of Trade) Act and not offences under the IPC. Learned counsel therefore says that there has been an offence under the two Acts involved and therefore, there being errors or faults in investigations pertaining to the offences. These errors or faults in the prosecution or inquiry can only benefit the appellants.

19. Learned senior counsel has referred to and relied upon the following judgments of the Hon'ble Apex Court:

(i) A.R. Antulay v. Ram Das Sriniwas Nayak & Another reported in (1984) 2 Supreme Court Cases 500 ;

(ii) Gangula Ashok and Another v. State of A.P. reported in (2000) 2 Supreme Court Cases 504 para 12 to 14;

(iii) State of W.B. v. Narayan K. Patodia reported in (2000) 4 Supreme Court Cases 447 para 15, 16 & 17; and

(iv) Sate (NCT of Delhi) v. Sanjay reported in (2014) 9 Supreme Court Cases 772 para 30 to 32 and 72.

Arguments of learned counsel for the State:

20. Learned counsel for the State has argued by pointing out to the sections that have been referred under Bihar Kendu Leaves (Control of Trade) Act ,1973 by the learned senior counsel for the appellants. In particular, learned counsel has pointed out to Section 5 which deals with restriction on purchase or transfer of Kendu leaves and Section 9 which deals with purchase of Kendu leaves by the State Government or agent. Learned counsel for the State has also argued that Sections 5 and 9 are the Sections that make out offences under the Bihar Kendu Leaves (Control of Trade) Act, 1973 because from the evidences on record, the appellants have not been able to prove that they had purchased the Kendu leaves and it is only the Government or its assigned agents, who can do the same and neither do they have the relevant or legal transportation paper of permit, therefore, when they are not able to prove either of this then the obvious conclusion is that they are guilty of infringement of the law and that they have stolen property belonging to the Government or received stolen property that belongs to the Government and in the process, violated both the Bihar Kendu Leaves (Control of Trade) Act,1973 as well as IPC provisions.

21. Learned counsel for the State has also pointed out that the signatures of the driver as well as khalasi i.e. appellant Anwar Hussain and appellant Karu Mahto are both on the seizure list and therefore, the seizure list cannot be considered simply a manufactured or contrived document. Learned counsel for the State says that the statements of these two accused persons or appellants were recorded and from the statements it is apparent that they are guilty of the offences as alleged.

22. Learned counsel for the State has further argued that since there is recovery which is proved by seizure then all the three appellants including the owner of the truck Mahesh Prasad Jaiswal are guilty of the offences, as made out by the learned court below. Learned counsel for the State has 11 also submitted that as per Section 5 of Cr.P.C., the Special Law will prevail. Lastly learned counsel for the State submitted that impugned judgment is based on proper evidence and hence, requires no interference by this court.

FINDINGS

23. This appeal is directed against the judgment of conviction and order of sentence dated 05.09.2002, passed in S.T. No. 196/1998 by the learned Additional Sessions Judge, Fast Track Court-I, Chatra wherein appellants herein were convicted for the offences under Sections 379 and 411 of the Indian Penal Code and Section 16 of the Bihar Kendu Leaves (Control of Trade) Act, 1973. Learned senior counsel for the appellants has submitted that requirements under section 18 and section 15 of the Bihar Kendu Leaves (Control of Trade) Act, 1973 has not been followed.

24.(i) Before examining the violation of provision of section 18 of Bihar Kendu Leaves (Control of Trade) Act, 1973, it would pertinent to see the record of learned court below. From the order sheets of the Court of C.J.M.,Chatra, I find that on 15-10-1996, prosecution report was submitted under section 379,411,412,417 and 420 of IPC and cognizance of the offences were taken by the learned C.J.M. under the aforesaid sections. On perusal of prosecution report, I find that Range Officer had submitted the prosecution report which bears his signature. The signature of Range Officer has been proved by PW-3 Rajendra Rai, who is a Forester.PW-3 has deposed in his evidence that prosecution report was in signature of the then Range Officer, Chatra,Sri Triloki Pandey. PW-3 has also proved the signature of Range Officer or Triloki Pandey, in the prosecution report which was marked as Ext.-1/3.Here,it is pertinent to note that the aforesaid Range Officer or Triloki Pandey was not examined in trial as he had passed away.

(ii) Section 18 of the Kendu Leaves(Control of Trade) Act,1973 reads as follow-

"no court shall take cognizance of any offence punishable under this Act except on a complaint in writing of the facts constituting such offence made by any Forest Officer not below the rank of Divisional Forest Officer or by any other Officer authorized by the State Government in this behalf".

Learned senior counsel for the appellants submitted that the complaint or prosecution report was done by a forest officer below the rank 12 of Divisional Forest Officer (DFO) and more specifically in the case in hand by the Range Officer and this is not the requirement of Section 18 of the Kendu Leaves Act. Learned counsel has further pointed out that the offence report as well as the complaint or prosecution report on the basis of which cognizance was taken, both were instituted by the Range Officer and therefore, not done according to the law as laid down and therefore, cognizance is bad because the requirement of law is that complaint or prosecution report has to be done by the forest officer not below the rank of DFO or any other Officer authorized by the State Government in his behalf but in the case in hand it has definitely been done by the officer below the rank of DFO and it is not stated by the prosecution that the Officer who made the complaint or prosecution report was authorized by the State Government. In any way it is the Range Officer who has made the offence report and also submitted the complaint or prosecution report. In the case in hand complaint or prosecution report was filed by the Range Officer which is evident from Ext.-1/3 but as per Section 18 of the Kendu Leaves Act, the complaint or the prosecution report should have been lodged by a forest officer not below the rank of DFO or by any Officer authorized by the State Government. Hence provisions of section 18 of the Bihar Kendu Leaves(Control of trade) Act,1973 was violated as cognizance of the offence was taken on the complainant or prosecution report of Range Officer.

25. Learned senior counsel for the appellants then referred to Section 15 of the Kendu Leaves(Control of Trade) Act,1973 which reads as follow :

(1) a Forest Officer not below the rank of a Ranger or such other Officer as may be authorized by the State Government in this behalf hold an inquiry into the offences relating to any contravention of any provision of this Act and in course of such inquiry receives a record and evidence; (2) Any evidence recorded under sub-section (1) shall be admissible in any subsequent trial before a Magistrate:

Provided that such evidence has been recorded in the presence of the accused persons.

26. Learned counsel for the appellants pointed out that the proviso to section 15 of the Kendu Leaves Act has not been complied with and note of this has been taken by this Court. Learned counsel has argued that nowhere it has come in the record or in the evidence of five prosecution witnesses that their statements were recorded before the accused persons. Learned counsel has further pointed out from the evidence of PW-1 Ram 13 Bijay Singh and PW-2 Bachu Singh, both Forest Guards that nowhere they have stated that their statements were recorded by Inquiry Officer in presence of accused persons. Hence, this would also go against the proviso to section 15 of the Kendu Leaves Act and hence makes the entire case of the prosecution doubtful.This Court notes that this is a second significant contravention under the Kendu Leaves Act.

27. Learned counsel for the appellants has also pointed out that PW-5 Kanhai Paswan, who is the Jeep driver in Forest Department, Chatra and a seizure list witness, had deposed that he had signed the seizure list not at the alleged place of occurrence, where seizure is said to have taken place but in the office of DFO. Learned counsel for the appellants has pointed out that this is not a proper procedure and PW-5 was mainly instructed to sign and, accordingly, he had done so and more particularly PW-5 Kanhai Paswan had also stated that nothing was seized in his presence. If nothing was seized in presence of PW-5 Kanhai Paswan, who is apparently a seizure list witness, then a grave irregularity to say the least has been committed on behalf of the Forest Officials themselves in making such seizure. It is rightly argued that this witness is a driver in Forest Department and he should not have initially become such an irregular witness. The truthfulness of PW-5 can be made out because normally in such circumstances such witnesses are expected to toe the line of their Department but in this case he has made a categorical denial and therefore it amounts to a contradiction which does not really go towards sustaining the conviction of the appellants under the Kendu Leaves Act.

28. Regarding the conviction of the appellants under section 379 and section 411 of Indian Penal Code, it is seen that appellants were already acquitted by the learned court below for the offence under Section 417,420 and 468 of the Indian Penal Code on the ground that permit which was handed over to the complainant has not been produced or has not been exhibited. As has been indicated earlier, reading of the offence report and complaint or persecution report, essentially points out an offence of transportation which comes within the ambit of the Kendu Leaves Act. This Court has already given conclusion in the preceding paragraph that there has been violation or contravention of Sections 15 and 18 of the Kendu Leaves Act as well as evidentiary value of PW-1, PW-2 and PW-5 become doubtful because of the reasons stated as aforesaid. If this Court applies 14 this same reason as to conviction of the appellants under Sections 379 and 411 of the Indian Penal Code, then also the same doubts arises about the allegations. In addition, it has also to be answered from where the theft had taken place and there is no complaint from any one that theft has taken place from the premises or from the warehouse or specific place as such. Moreover, section 411 of the Indian Penal Code deals with dishonestly receiving property, then this would be a different offence in nature from theft. The accused persons or appellants herein may not be the persons who have committed the theft and they have been alleged to have dishonestly received the property. The charge should have been for one of the offences either under Section 379 of the Indian Penal Code or under Section 411 of the Indian Penal Code. It is pointed out that though convictions were under both sections 379 and 411 of IPC, sentence was passed only under section 411 of IPC. It is seen that the learned court- below had concluded, as appears from the language which the learned court-below used and which has been indicated by this Court in the reasoning is that because they were guilty of the offences under the Kendu Leaves Act, hence, they are guilty of the offences under the Indian Penal Code. However, learned court below has convicted the appellants under Section 16 of the Kendu Leaves Act as well as under Sections 379 and 411 of the Indian Penal Code, however, the sentence is only under Section 411 of the Indian Penal Code. Therefore, some confusion on the part of the prosecution continued right onto the stage of the trial as to what actually they were wanting and dealing with. Even if conviction under Section 411 of the Indian Penal Code ought to be sustained it may need to be proved that as to wherefrom and from whom appellants have received the stolen property, but that is not the case in hand. Therefore, prosecution has failed to prove the charges under Section 379 of the Indian Penal Code as well as Section 411 of the Indian Penal Code.

29. In my findings, it has been indicated that the violation pertains to section 16 of the Kendu Leaves Act. Counsel for the appellant has cited the few judgments, dealing with issues touching on relevance of special act/ acts and the general law, even if special act or Bihar Kendu Leaves (Control of Trade) Act, 1973 was essentially the law under which trial had been conducted, for my reasons already given wherein it has been indicated how sections 15 and 18 of the special act has been violated, 15 apart from the faulty evidence of the prosecution witnesses indicated, the benefit would extend to the appellants.

30. Accordingly, the judgment of conviction and the order of sentence dated 05.09.2002, passed in S.T. No. 196/98, by the learned Additional Sessions Judge, Fast Track Court-I, Chatra, whereby, the appellants, namely, (1) Anwar Hussain, (2) Karu Mahto and (3) Mahesh Prasad Jaiswal have been convicted for the offences under Sections 379 and 411 of the Indian Penal Code and Section 16 of the Bihar Kendu Leaves (Control of Trade) Act, 1973 are set-aside. The aforesaid appellants are acquitted of all the charges and are discharged from the liabilities of bail bond.

31. In the result, this appeal is allowed.

(RatnakerBhengra, J.) Jharkhand High Court, Ranchi Dated: 05/03/2021 S.B.-NAFR

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