CHANDRA NAIK Vs. STATE

JUDGEMENT

(1.) The sole point urged by the learned counsel for the petitioner in this case is that the petitioner's conviction under S. 27(3)(a) of the Orissa Forest Act, 1972 and sentence to simple imprisonment for two months and fine of Rs. 2,500/- in default to undergo simple imprisonment for a further period of one month on the allegation of his having cut four Sal trees inside Jagannathprasad reserved forest to be unwarranted since it was never proved that the forest in question was a reserved forest. The petitioner was alleged to have illegally cut the trees on 10-12-1985 and such fact having been proved, his conviction ensued. The conviction and sentence have also been confirmed in appeal.

(2.) Section 27(3)(a) of the Orissa Forest Act provides that any person who in a reserved forest, inter alia, fells any tree or plant shall be punishable with imprisonment for a term which may extend to two years and with fine which may extend to five thousand rupees. For conviction under the Section it is hence necessary to establish that the felling of tree had been made inside a reserved forest. Section 21 of the Act deals with notifications declaring forest reserved and says that when a forest is to be declared as such, the State Government is to publish a notification specifying, according to boundary marks erected or otherwise, the limits of the forest which is to be reserved, and declaring the reservation to take effect from a date to be specified in the notification. From the date so specified the forest is to be deemed to be a reserved forest. Section 22 provides that before the date specified in the notification under S. 21, the Divisional Forest Officer shall cause a translation thereof into Oriya to be published at a conspicuous place in every town and village in the neighbourhood of the forest and also in such other manner as may be prescribed. In the case, Ext. 4 has been filed stating it to be the notification declaring Jagannath Prasad forest as a reserved one. 2A. Mr. C. C. Panda, learned counsel for the petitioner has urged that Ext. 4 is only a cyclostyled copy of a typed notification attested as true copy by the D.F.O., Ghumsur North Division and is not a notification under S. 21(1) of the Act. It is also his submission that it has not been proved that the steps under S. 22 of the Act has been taken. Reliance has been placed by him on (1970) 36 CLT 395 (Sadhu Patra v. State of Orissa), (1977) 43 CLT 365 : (1977 Cri LJ (NOC) 233) (Arjun Behera v. State) and (1978) 45 CLT 611 : (1978) Cri LJ (NOC) 142) (Bahani Samta v. State of Orissa) to submit that unless a proper notification is proved, an offence under S. 27 of the Act cannot be said to have been committed. It is undoubtedly true that in all these decisions view had been taken that the notification as required under S. 21 of the Act must be proved to have been duly made and without such evidence a conviction cannot be sustained. In (1970) 36 CLT 395 (supra) the Court held, dealing with the pari materia provisions of the Indian Forest Act, that mere production of the notification itself of a copy duly certified to be a true copy was not enough and it would also have to be proved that the notification had been published in the manner and is accordance with the provisions of S. 21 which correspond to S. 27 of the present Orissa Forest Act. The notification in question had been issued by the Nilgiri Darbar and had been sought to be proved by production of a certified copy so certified by the Divisional Forest Officer. It was held that undoubtedly the notification issued by the Nilgiri Darbar would be a public document of which secondary evidence could be given as provided under S. 65(e) of the evidence Act and as per S. 78 of that Act dealing with proof of official document, the notification could be proved by certificate of the concerned Head of Department. The notification as such was held not to have been proved not having been certified by the Head of Department but by the D.F.O. who was not the Head of the Department.

(3.) It has, however, been urged by the learned Addl. Govt. Advocate Mr. Rao that the decisions relied upon by Mr. Panda are Inapplicable since the Orissa Forest Act was amended by Orissa Act 9 of 1953 introducing Sub-Section (3) to S. 21 of the Act that production of an authenticated copy of a notification published under Sub-Section (1) shall be conclusive proof that the forest the limits whereof have been specified therein is a reserved forest. It is his further submission that Jagannath Prasad forest was declared reserved in 1893 under S. 16 of the Madras Forest Act, 1852 (Madras Act 5/82) and that the notification made under that Act is saved under S. 91 of the Orissa Forest Act, 1972 providing in Sub-Section (a) thereof that any forest or land declared to be a reserved forest, inter alia, under the Madras Act shall be deemed to be a reserved forest under the Orissa Act, and in Sub-Section (b) thereof that the notification issued inter alia under the Madras Act shall be deemed to have been issued under the Orissa Act and shall continue in force until new provisions are made under it.