Patna High Court
Janu Khan And Ors. vs The State on 29 October, 1959
Equivalent citations: AIR1960PAT213, 1960CRILJ634, AIR 1960 PATNA 213, 1960 BLJR 12
ORDER K. Sahai, J.
1. All the four petitioners have been convicted under Section 33 of the Indian Forest Act (XVI of 1927), and each of them has been sentenced to pay a fine of Rs. 50/- or, in default, to undergo simple imprisonment for one month. Petitioner No. 1 and two others, who have not filed any application for revision, have been convicted under Section 42 of the same Act read with Transit Rules 2 and 5 (vi), and have been sentenced to pay a fine of Rs. 50/- or, in default, to suffer simple imprisonment for one month each. Petitioner No. 1 has been further convicted under Section 353 of the Penal Code, and has been sentenced to undergo simple imprisonment for one month. The price of the sal rolas in question, which were seized from the possession of petitioner No. 1 and two others, has been ordered to be forfeited.
2. The prosecution case is that, on the 2nd October, 1956, a forest guard named Jamuna Singh (P. W. 1) saw petitioners Janu Khan, Manan Khan and Halo Khan stripping off the bark from sal rolas (logs of sal wood), which had been cut, and petitioner Akram Khan loading those rolas on a truck bearing Registered No. B. R. L. 898. Jamuna Singh attempted to seize the rolas and tangis; but petitioner Janu Khan abused him, and ran to assault him with an axe, whereupon he fled away. Jamuna gave a written report (exhibit 1) to the Beat Officer. Subsequently, at about 11 p. m., the Beat Officer found petitioner Janu Khan and two others, who were the driver and the cleaner of the truck, taking 114 logs of sal wood on that truck at a railway crossing and they had no permit for transit. The Beat Officer seized the truck with the loaded sal rolas, and pruudced the driver, the cleaner and petitioner Janu Khan before the Sub-divisional Magistrate on the 3rd October, 1956. In due course, the petitioners and the other two were put upon their trial, and I have already mentioned the convictions and sentences recorded against the petitioners.
3. The first point which Mr. Ghosal has as taken on behalf of the petitioners is that their conviction under Section 33 of the Indian Forest Act is bad. The petitioners were charged for having contravened the provisions of clauses (a) and (b) of Sub-section (1) of Section 33, which read:
"33. (1) Any person who commits any of the following offences, namely:--
(a) fells, girdles, lops, laps or burns any tree reserved under Section 30, Or strips off the bark or leaves from, or otherwise damages, any such tree;
(b) contrary to any prohibition under Section 30, quarries any stone, or burns any lime or charcoal, or collects, subjects to any manufacturing process, or removes any forest-produce;
x x x X shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both."
The allegation against the petitioners is that they were stripping off the bark of the logs of sal wood which had been cut, and, therefore, their act falls under Clause (a). It is also alleged that they were removing forest produce, namely, sal rolas, and hence their act falls under Clause (b). The point which Mr. Ghosal has argued is that the State Government must issue notifications under sections 29 and 30 before any one can be said to be guilty under Section 33(1) (a) or (1) (b). He has pointed out that there is on the record the true copy of a notification, which purports to have been issued by the State Government under Section 29 of the Act; but he has contended that the Court cannot take it into consideration because it has not been properly proved. There is substance in this argument. A notification which is issued by the Central Government or the State Government or by a department of the Government is a public document, and a certified copy of it may be produced in order to prove the existence, conditions or contents of that document under Section 65 of the Evidence Act. Section 78(1) of that Act provides for the manner in which such documents can be proved. It is as follows :
"78. Proof of other official documents. -- The following public documents may be proved as follows:--
(1) Acts, orders or notifications of the Central Government in any of its departments, or of the Crown Representative or of any State Government or any department of any State Government, by the records of the departments, certified by the heads of those departments respectively, or by any document purporting to be printed by order of any such Government or, as the case may be, of the Crown Representative."
If the copy which is on the record had been certified by the head of the department which issued the notification, it could certainly be received in evidence and taken into consideration. It could also be taken into evidence if the official gazette in which the notification purported to have been printed by order of the Government had been produced for inspection of the Court. No attempt was made to prove the document in either way. The copy is certified only by a forest officer to be a true copy. Hence, I agree with Mr, Ghosal that this notification has not been legally proved. It cannot, therefore, be taken into consideration.
4. Even if I take into consideration the Notification referred to above, which is dated the 29th December, 1952, there had to be another notification under Section 30 of the Indian Forest Act, declaring any tree or class of trees in the alleged protected forest to be reserved from a date fixed in that notification. The Additional Standing Counsel, who has appeared on behalf of the State, has admitted that he has not been able to find out on the record of this case any such notification under Section 30. That being so, the conviction of the petitioners under Section 33 must be held to be bad. That conviction has, therefore, to be set aside.
5. The next point which Mr. Ghosal has argued is that the conviction of Janu Khan, petitioner No. 1, under Section 353 of the Penal Code is erroneous. In my opinion, this contention is also well-founded. Jamuna singh, is said to have attempted to seize the logs of sal wood at a time when an offence under Section 33 of the Indian Forest Act is alleged to have been in the process of being committed. As it has not been proved that an offence under that section has at all been committed, it cannot be held that Jamuna Singh, was acting in execution of his duty as a public servant, to wit, a forest guard. It follows, therefore, that petitioner Janu Khan did not assault, or used criminal force to, a public servant in execution, of his duty as such servant or with the intention to prevent or deter him from discharging his duty as such public servant. His conviction under Section 353 also, therefore, cannot stand.
6. Mr. Ghosal has not been able to question the legality of the conviction of Janu Khan, petitioner No. 1, under Section 42 of the Indian Forest Act read with Rules 2 and 5 (vi) of the Transit Rules, Those rules have been framed in exercise of the powers conferred upon the State Government under Section 41 of the Indian Forest Act. They do not relate to the removal of any forest produce from a protected forest or any forest under the control of the Government; they relate rather to the removal of the forest produce from any forest. It is not disputed that petitioner Janu Khan had no permit for transit as required by the rules which I have referred to. That being so, his conviction under Section 42 must be maintained.
7. Section 55 of the Indian Forest Act provides that any forest produce, which is not the property of the Government and in respect of which a forest offence has been committed, can be confiscated by the Court after conclusion of the trial, in addition to any other punishment prescribed for the offence. Section 56 provides that any forest produce, which has been confiscated or which is the property of the Government, shall be taken charge of by a forest officer at the conclusion of a trial for any forest offence. Hence, there is no illegality in the order of forfeiture of the logs of sal wood in respect of which the offence under Section 42 was committed.
8. In the result, I set aside the conviction of all the petitioners under Section 33 of the Indian Forest Act and that of petitioner Janu Khan under Section 353 of the Penal Code as well as the sentences imposed thereunder. I, however, maintain the conviction and sentence imposed upon petitioner Janu Khan under Section 42 read with Rules 2 and 5 (vi) of the Transit Rules. The order of forfeiture of the logs of sal wood is also maintained.
9. The application of petitioner Janu Khan is dismissed with the modification mentioned above, and that of the other three petitioners is allowed.
10. It has been brought to my notice that the learned Additional District Magistrate, who disposed of the appeal in the Court below, heard arguments on the 1st April, 1958, and delivered judgment on the 31st October, 1958. Such a long interval between hearing of arguments and delivery of judgment is to be strongly deprecated because the officer cannot possibly remember the arguments for such a long time.