In Re: Kuttiyappan and Others

M.N. Moorthy, J.—This is a revision against the order of the Assistant Sessions, Judge. Tirupattur, North Arcot, passed in Criminal Appeal

No. 459 of 1977, confirming the conviction under S. 26(a) of the Tamil Nadu Forest Act and sentence of fine of Rs. 25 passed by the Judicial

Second Class Magistrate, Vaniyambadi on the Petitioners.

The prosecution has examined three witnesses to prove the case against the petitioners. P. W. 3, Narayanaswamy, Guard, while on duty on

19th November, 1976 saw ten persons clearing the ground by taking away the surrounding shrubs in the Nekhamalai Reserved Forest. He

accosted them pointing out that they had encroached upon the forest reserve land. As they did not desist from their activities, he sent a report to P

W.2, Forest Range Officer. P.W.2 in turn asked P.W. 1, forester, to go to the spot on 23rd November, 1976 to verify the report of P.W.3. On

23rd November, 1976 P.W.I, along with others went to the concerned land at about 11 a.m. and found the petitioner engaged in clearing the land

with agricultural implements. P.W.I seized the implements and the petitioners gave a statement, Ex P7, admitting their encroachment on the forest

reserve land. Latter, they were sent to court for necessary action. A case was filed against the petitioners for an offence under S. 26(a) of the

Tamil Nadu Forest Act before the learned Judicial Second Class Magistrate.

The defence of the petitioners was that they did not commit any offence. They examined four, witnesses on their behalf to show that the land

was in the possession of the Revenue Department on the date of occurrence and there were even proposals to hand over the land to the Panchayat

for distributing it to the landless poor. As such it should not be construed that the petitioners encroached upon the forest reserve land and

committed the offence. It was also submitted that the forest was not declared as a ''Reserve Forest'' and as such no offence has been made out as

alleged.

The point that arises for determination is whether the acts attributed to the petitioners is an offence under S. 26(a) of the Madras Forest Act.

A careful reading of S. 26 will reveal that it does not create an offence. For the successful implementation of the provisions of the Madras

Forest Act, framing of rules by the Government was thought necessary and S. 26 is only an enabling provision to make them. It does not

contemplate creation of offence as such. In taking this view, I am following with respect the decision of Somasundaram, J. in Nanjappan, In re 73

L.W. 281 : 1960 M.W.N. Crl. 33 Or. 3

S. 4 notification regarding the concerned land in the present case was issued on 5th May, 1954. Once a notification is thus made, it makes the

land no doubt a reserve land according to R. 3 of the Rules framed under S. 26 of the Act. There is no provision either in the Act or in the Rules

which makes it an offence if one encroaches to make fresh clearing or breaking up of land for cultivation or other purposes, merely because S. 4

notification is in force. Apparently, as submitted by the learned Advocate General appearing for the State, what the prosecution was contemplating

was that R. 6 prohibits the clearing of land notified for reservation under S. 4 of the Forest Act and the issue of patta for such land as mentioned in

S. 7 of the Act. S. 7 will come into play only after proclamation is made under S. 6. The offence alleged in this case against the petitioner was on

23rd November, 1979,, long before S. 6 proclamation, which was made in June, 1977.

The learned Advocate General brings to my notice the Madras Forest (Amendment) Act, 1961, which reads as under:-

In S. 26 of the principal Act, for the words ""The Government may by such rules prescribe, as penalties for the infringement thereof, imprisonment

for a term which may extend to one month, or fine which may extend to two hundred rupees, or both"" the following words, brackets and figures

shall be substituted, namely:-

The Government ''may by such rules prescribe as penalties for the infringement thereof:-

(1) in any case where such infringement relates to sandalwood, imprisonment for a term which may extend to one year and fine which may extend

to ten thousand rupees.

(2) in any other case, imprisonment for a term which may extend to one month, or fine which may extend to one month, two hundred rupees, or

both.

It should be noted that the penalties for infringement are prescribed as before for contravening rules framed under the Act and the amendment in no

way makes S. 26 of the Act create an offence. The infringement of the rule only is an offence after the amendment as it was before it. Amendment

is only regarding punishment of infringement of rules.

The conviction of the petitioners cannot be sustained as no offence is made out. The conviction and sentence are set aside. The fine amount, if

collected, will be refunded.