PYLI & OTHERS Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE Criminal revision petitions arise out of prosecutions for offences under Section 27 of the Kerala Forest Act, 1961, (Act IV of 1962) hereinafter referred to as the Act. A common question of law arises in all these petitions and they are therefore disposed of by a common judgment. Section 27 of the Act deals with penalties for trespass or damage in Reserved Forests. Sections 4 to 18 of the Act provide for the determination of the rights in the land which is to be constituted as a Reserved Forest. Then comes Section 19 under which the Reserved Forest is eventually constituted. Section 19 of the Act is in the following terms:

(2.) IT is a pre -requisite for a person to be held guilty under Section 27 of the Act that there should be a notification under Section 19 duly published in the Gazette. In the absence of such a notification the accused could not be found guilty, for contravention of the provisions of Section 27 of the Act.

(3.) A court is not under Section 57 of the Evidence Act entitled to take judicial notice of a notification issued by the Government under Section 19 of the Act. But such a notification is a public document within the meaning of Section 74 of the Evidence Act. What is the mode of proof of the contents of the notification. The publication of the notification has to be in the Gazette. Section 78 of the Evidence Act prescribes special modes of proving the contents of various kinds of public documents. Section 61 of the Evidence Act embodies the rule that "contents of documents may be proved either by primary or secondary evidence". 'Primary evidence' is defined in Section 62 while section 63 gives an inclusive definition of 'secondary evidence'. The contents of public documents can also be proved by production of secondary evidence. Section 65 allows secondary evidence being given when the original is a public document within the meaning of Section 74. In case when the original is a public document within the meaning of Section 74 or in case when the original is a document of which a certified copy is permitted by the Evidence Act or by any other law in force in India to be given in evidence Section 65 of the Evidence Act says that certified copy of the document but no other kind of secondary evidence is admissible. If the Official Gazette containing the notification under the Act is produced in Court it has to presume its genuineness under Section 81 of the Act. In view of these provisions of the Evidence Act, it was the duty of the prosecution to have established one of the ingredients of the offence viz., that the act complained of was done in a Forest constituted as a Reserved Forest by the issue of a notification under Section 19 of the Act and by the publication of the same in the Gazette, either by the production of the Gazette or by a certified copy of the notification and adduce evidence of the publication of the same in the Gazette. No other evidence is admissible in the case.