Patna High Court
Santokhi Rana And Ors. vs State on 3 May, 1976
Equivalent citations: 1977(25)BLJR79
JUDGMENT D.P. Sinha, J.
1. The petitioners, namely, Santokhi Rana, Saheb Rana and Wali Ram alias Wali Rana have each been convicted under Section 33 of the Indian Forest Act, 1927 (hereinafter referred to as 'the Act') and sentenced to pay a fine of Rs. 25/- and in default thereof to undergo simple imprisonment for one month, by Shri Ganga Sagar Thakur, Magistrate, first Class, Jamui, by his order dated 5.9.73.
2. The allegations against the petitioners were that while the, Forest Guard of Jamui Protected Forest was on his rounds, he noticed the petitioners breaking up the land of the forest illegally. He submitted a report to the Forester who held a local inquiry and found that an area of 0.44 acre out of the forest plot No. 1507 had been ploughed up. Thereafter a complaint was filed against the petitioners alleging commission of an offence under Section 33 of the Act and the petitioners were put on trial with the result already mentioned.
3. It is contended by learned Counsel for the petitioners that the conviction is bad in as much as it has not been legally proved that a notification as required by Section 29 of the Act had been published in the Official Gazette applying the provisions of Chapter IV of the Act which contains Section 29 to 34 applicable to the forest land in question and that no notice at all under Section 30 of the Act has been published in the official gazette and as such the petitioners could not have been convicted for having committed ah offence under Clause (c) of Sub-section (1) of Section 33 of the Act. It is further contended that the defence of the petitioners that the land had been settled with them prior to the alleged issue of the notification under Section 29 of the Act, in support of which they had examined witnesses and produced documents, had not been considered by the learned Magistrate with the result that miscarriage of Justice has occurred.
4. The contention are well founded. Section 29(1) of the Act provides that the State Government may by a notification in the official gazette, declare the provisions of Chapter IV (Sections 29 to 34) of the Act relating to protected forests, applicable to any forest land or waste land which is not included in a reserved forest, but which is the property of the Government, or over which the Government has proprietary rights, or the whole or any part of the forest-produce of which the. Government is entitled. Sub-section (2) thereof provides that the forest land and waste land comprised in any such notification shall be called a 'protected forest'. Sub-section (3) lays down that on such notification shall be made, unless the nature and extent of the rights of the Government and of private persons in or over the forest land or waste land comprised therein have been inquired into and recorded at a survey or settlement, or in such other manner as the State Government thinks sufficient. It further provides that every such record shall be presumed to be correct until the contrary is proved : provided that, if, in the case of any forest land or waste the State Government thinks that such inquiry and record are necessary, but that they will occupy such length of time as in the meantime to endanger the rights of Government, the State Government may, pending such inquiry and record, declare such land to be a protected forest, but so as not to abridge or affect any existing rights of individuals or communities. Under Section 30 61 the Act the Government may, by a notification in the Official Gazette, among other things mentioned in Clauses (a) and (b) thereof, prohibit as in Clause (c) thereof, from a date fixed in the notification, the quarrying of stone etc. and the breaking up or clearing for cultivation, for building, for harding cattle or for any other purpose, of any land in any such forest.
5. Section 33(1) of the Act lays down that any person who commits any of the offences specified in Clauses (a) to (h) thereof, shall be punishable with imprisonment for a term which may extend to six months or with the fine which may extend to 500 rupees, or with both. The relevant clause of the said Sub-section (1) for the purpose of this case, is Clause (c). This clause applies to any person who, contrary to any prohibition under Clause (c) of Section 30, breaks up or clears for cultivation or any other purpose any land in any protected forest.
6. From the above analysis of the relevant provisions of the Act contained in Chapter IV thereof, which apply to protected forests', it is quite manifest that as a pre-requisite to the application of the punishing Section 33(1) of the Act, it must be proved that the notification required by Sections 29 and 30 of the Act had been made by the State Government by publishing them in the Official Gazette. In proof of the publication of the notification under Section 29(3) of the Act the prosecution produced Ext. 4 which purports to be a copy of a notification alleged to have been issued by the State Government.
7. Section 78 of the Evidence Act provides, in Clause (1) thereof, that the following public documents, namely, Acts, orders or notifications of the Government (Central Government or the State Government, as the case may be), may be proved,-
(i) by the records of the department, certified by the head of the department, or
(ii) by any document purporting to be printed by order of the Government.
The copy (Ext. 4) is, however, not a certified copy as contemplated under Clause (1) of Section 78 of the Act. It is a copy certified by the Range Officer and not by the head of the Forest Department of the State Government. Such a copy cannot be deemed to be a certified copy within the meaning of Clause (1). Under that clause, the Official Gazette in which the notification might have been published was also admissible but the same was not produced before the Magistrate and even before this Court it has not been produced. In the circumstances, it must be held that the prosecution failed to prove that a valid notification under Section 29 of the Act had been issued and that the forest had been thereby declared to be a protected forest.
8. So far as Section 30 is concerned, there was no allegation at all that any notification under Section 30 had been issued by the State Government and published in the Official Gazette, prohibiting the breaking up of any land in the alleged protected forest. In the circumstances, it cannot be said that the petitioners had, by breaking, up the land for cultivation, contravened the provisions of Clause (c) of Sub-section (1) if Section 30 of the Act for which they could be found guilty and punished under Section 33(1) of the Act. The earned Magistrate had failed to apply his mind to this basic and essential fact.
9. It further appears that although the petitioners had set up a defence and claimed to have taken settlement of the land prior to the issue of the alleged notification under Section 29 of the Act, the learned Magistrate had failed to apply his mind to that defence just as he had tailed to consider whether on the allegations an offence under Section 33(1)(c) of the Act had or had not been made out by reason of contravention of any prohibition under Section 30 of the Act. The judgment is undoubtedly a very unsatisfactory one. The conviction of the petitioners cannot be sustained. The petition is, accordingly, allowed and the conviction and sentence imposed upon each of the petitioners are hereby set aside and they are acquitted. The fine, which appears to have been paid by the petitioners, shall be refunded to them.