Andiappan and Others vs The State

The accused in C.C. No. 718 of 1981 has preferred this revision challenging the legality and correctness of the conviction under S. 21(d) and

(f) of the Tamil Nadu Forest Act, hereinafter referred to as the Act, passed by the Judicial First Class Magistrate-II, Salem and confirmed by the

learned Sessions Judge, Salem Division Salem.

The brief facts of the case which are necessary for disposal of the revision are as follows :- On 18th June, 1981 at about 4.30 p.m., the

petitioners 1 to 7 along with two others were alleged to have trespassed into the Kadukaipatti Rang, Nerunjipati Beat at Palamalai Reserved

Forest and cut the trunk portion of the sandalwood trees, which were already uprooted as they were withered and cut them into pieces and carried

on their heads. P.W. 1 the Forests and P.W. 2 the Forest Guard and the party apprehended them and the accused 8 and 9 escaped and they

could not be apprehended. They seized the headload from these accused and they were marked as M.Os. 1, 3, 5, 7, 9, 11 and 13, the koduvals

which they used for cutting the trunks of the trees were also recovered, their statements were also recorded under Exs. P1 to P7 and P8 is the

memo for the seizure of the above items. Thereafter, the charge-sheet of the accused was filed before the trial Court. Ex. P9 is the typed copy of

the Government Gazette and Ex. P10 is the sample sketch of the said place.

The accused examined five witnesses on their side, viz., D.Ws. 1 to 5, whose evidence is to the effect that all these accused were taken from

their respective houses and this case has been foisted and they were not arrested at the forest as alleged.

The learned Magistrate, who tried the case, found all the accused guilty under S. 21(d), (e) and (f) of the Act and convicted each of them to

undergo rigorous imprisonment for one year under each of the counts and to pay a fine of Rs. 1,000/-, in default to undergo rigorous imprisonment

for two months. The learned Sessions Judge, for the reasons assigned in his judgment, acquitted them for the offence under S. 21(e) of the Act as

there is no acceptable evidence for cutting the trunks of the trees and making billets and confirmed the conviction and sentences under S. 21(c)(d)

(f) of the Act. Aggrieved by the above decision, the accused 1 to 7 have come forward with this revision.

R. M. Krishnaraju, leaned counsel for the revision petitioners mainly contended that the prosecution has miserably failed to prove that the place

where the accused were arrested is a reserved forest, by producing the necessary notification and the Gazette publication and also adducing

necessary evidence in this regard and as such the conviction of the petitioner is liable to be set aside and he also contended that there is no proper

discussion on the evidence adduced before the Court below and which also led to the failure of justice.

At the outset, on going through the evidence adduced in the case and the judgment of the Court below, I find there is acceptable evidence

adduced by the prosecution about the involvement of these petitioners in the crime and particularly about their carrying of the sandalwood billets on

their heads and the recovery of the same by the evidence of P.Ws. 1 and 2, which is corroborate by the recoveries made by them and the

statements made by the very accused under Exs. P1 to P7 and the Court below also had given sufficient reasons for not accepting the evidence

adduced on behalf of the defence and I am of the view that the concurrent findings of the Courts below with regard to the overt acts attributed to

the accused cannot be assailed in any way as they do not suffer from manifest illegality or any glaring error which resulted in the miscarriage of

justice and as such I do not find any force in the submission made by the learned counsel for the revision petitioners in this regard.

The next important point, which we have to consider is, whether the prosecution has established, by acceptable evidence, that the offence was

committed in the reserved forest. It is to be noted that in the instant case the prosecution has filed only a typed copy of the Gazette notification

singed by P.W. 1 and P.W. 1 also had stated in his evidence about the filing of the same. The learned counsel for the revision petitioners submits

that it is not a proper compliance for proving the said notification and as such there is no evidence that the offence has taken place in a reserved

forest which is a necessary ingredient for constitution of an offence under S. 21(d) or (f) of the Act. The learned counsel relied on the decision

reported in State by Public Prosecutor v. Muthu Gounder 1983 MLW (Cri) 148 in support of his contention. That was a case relating to an

appeal against the order of acquittal filed by the State wherein, admittedly, the notification was not filed, but, it was sought to be filed in the appeal

by the learned Public Prosecutor, Maheswaran, J. admitted the notification as it was a public documents. The learned Judge raised a further

question as to what is the effect of the admission of the Gazette and observed :

If the official Gazette containing the notification under the Act is produced in Court, its genuineness cannot be questioned in view of Section 81 of

the Evidence Act. But then, the mere production of the Gazette in Court will not establish the ingredients of the offence with which the accused is

charged. There is absolutely no proof that the offence complained of was done in a the forest constituting a reserved forest. I have also held that

mere production of Ex. P3 cannot show that the respondent has committed an offence under S. 36-A of the Act. Though the Gazette is filed in this

case now, there is nothing in Ex. P3 to show by whom the billets were seized and from which place they were seized.

In the light of the above observation, the order of acquittal was confirmed, though not for the reasons stated by the Magistrate.

7A. The learned counsel also relied on the decision Mansid Oraon and Another Vs. The King, , which is referred to in the decision quoted above

in para 6, wherein it was held :

For the purpose of proving the guilt of the accused it is necessary to show not only that they did the acts mentioned in Cls. (f) and (h) of Section

26(1) but also that they were not entitled to do those act because there had been a notification issued under S. 20(1) specifying the limits of the

forest and that the land in question fell within those limits. Such a notification is essential for the purpose of declaring a forest as a reserved forest.

The production of notification under S. 4 or oral evidence as to limits of the forest is not sufficient.

On the other hand, the Government Advocate (Criminal), Mr. A. N. Rajan, produced the original Gazette notification before this Court and

contended that since this is an official gazette and a public document, it can be admitted as was done in State by Public Prosecutor v. Muthu

Gounder (1983) MLW (Cri) 48 and that is sufficient compliance. He also relied on the decision - Public Prosecutor v. Kamakshi Ammal, 1983

MLW (Cri) 37 wherein Ratnavel Pandian, J., had considered Sections 57, 78 and 81 of the Evidence Act with reference to the notification issued

by the Government and also proof as to the existence of such a notification and other considerations. The learned Judge has elaborately discussed

the question with reference to various decisions of the Supreme Court and of this Court and ultimately held that the notification amounts to law and

judicial notice can be taken of it. In the above quoted decision the photostat copy of the Gazette of India has been produced, but, not marked.

But, it is found from the photostat copy that the notification was found published under the Cotton Textile (Control) Order, 1948, and in the

circumstances, the order of acquittal was set aside, the appeal was allowed and the matter was remanded to the Court below to dispose of the

case according to law after giving opportunity to the parties to adduce necessary evidence. While disposing of the said case, the learned judge has

observed :

Section 78 of the Evidence Act enacts that 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"" may be proved 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. Section 81 deals with the presumption to be raised as regards the genuineness of Gazettes,

newspapers, private Acts of Parliament and other documents.

Though a Court should take judicial notice of the Act mentioned in S. 57, it could only take such notice if unimpeachable books or documents are

put before it or otherwise accessible for its references. Under the last paragraph of the section the Court is given the discretion to refuse to take

judicial notice of any fact unless such person calling upon the Court to take Judicial notice of such fact produces any such book or document as it

be necessary to enable it to do so.

In the instant case, the Government Advocate has produced the original Gazette notification itself bearing No. 59, dated 1st February, 1894 and

the notification published u/s 16 of the Madras Forest Act V of 1882, dt. 13th February, 1894 and also the subsequent notification dt. 9th April,

1960 to show that Palamalai forest is classified as a reserved forest. Since the said Gazette notifications are public documents thy are marked as

Ex. P11 and as such I am of the view that the said production of the original Gazette and notifications coupled with the evidence of P.W. 1, who

had already produced the typed copy is a sufficient compliance and they clearly establish that the said place where the offence was committed viz.,

the Palamalai forest is a reserved forest and as such there is nothing to interfere with the conviction passed by the Court below.

As regards question of sentence is concerned, it is submitted by the learned counsel for the revision petitioners, the accused are very poor and

they are the first offenders and even according to the prosecution they were fond carrying only headload of dry sandalwood billets on their head,

they have to maintain a big family and they may be given an opportunity to reform themselves and as such they must be dealt with under the

Probation of Offenders Act. Considering the peculiar circumstances and the submission made by the learned counsel for the revision petitioners, I

feel the ends of justice would be met by releasing the petitioners under S. 4(1) of Probation of Offenders Act on each of them executing a bond for

Rs. 1,000/- with two sureties each for a like sum to the satisfaction of the lower Court to appear and receive the sentence when called upon during

the period of one year and in the meantime to keep peace and be of good behaviour.

In the result, the conviction and sentence imposed on the revision petitioners are set aside, with the direction of release of the revision

petitioners as stated in paragraph 9 above under S. 4(1) of the Probation of Offenders Act. With this modification, the revision case is dismissed.

Revision dismissed.