Raghu Dalei and Another vs State of Orissa

P.K. Mohanti, J.—This criminal revision is directed against an order of conviction u/s 37 of the Orissa Forest Act and a sentence of fine of Rs. 100/- with a default sentence of simple imprisonment for one month passed against each of the Petitioners by the learned Judicial Magistrate, First Class, Kodala.

2 Prosecution case was that on 17-5-1975 at about 8 p. m. while the forest guards were on patrol duty they detected the Petitioners illicitly felling and removing four logs of sale wood from Jokalundi reserved forest without any authority. They were caught red-handed by the forest guards. The matter was reported to the Forester (P.W. 6) and in due course prosecution was launched- against the Petitioners.

The Petitioners denied their alleged complicity in the crime and contended that the case was foisted against them out of previous ill-feeling.

In order to prove the charge, prosecution examined six witnesses and the learned Magistrate relying on their evidence held the Petitioners guilty and inflicted the sentences as indicated above. It was contended before the learned Magistrate that in the absence of proof of the Government notification declaring the forest in question as a reserved forest, the prosecution was bound to fail. The learned Magistrate repelled the contention by observing that the Forester (P.W. 6) gave oral evidence that there was a notification to show that Jokalundi Forest had been declared as a reserved forest and that the Petitioners did not take any steps to call for the notification from the Forest Department.

Under the provisions of Section 21 of the Orissa Forest Act a notification is to be published in the Official Gazette, specifying, according to boundary marks erected or otherwise, the limits of the forest which is to be reserved, and declaring the same to be reserved with effect from a date to be specified in the notification. It is only from the date so fixed that such forest, shall be deemed to be a reserved forest. Section 33 of the Act provides for issue of similar notifications in respect of protected forests. Section 34 provides for issue of notification declaring any trees or class of trees in a protected forest to be reserved from a date to be specified in the notification. It was incumbent on the prosecution to produce and prove the notification specifying the limits of the forest and to show that the land, from which the logs were removed fell within those limits. Legal position is well settled that oral evidence cannot be substituted in place of the notification - Sanatan Mahallik v. State 32 C.L.T. 299, Udayanath Swain and Ors. v. State 35 C.L.T 343, Sadhu Patra v. The State of Orissa 34. C.L.T. 395 and Arjun Behera v. State 43 C.L.T 365.

In Mansid Oraon and Another Vs. The King, , the Court observed:

This is merely one of the many instances to which this Court has continually invited Government''s attention to the utter carelessness with which prosecutions; in this province are conducted: Neither the Public Prosecutors nor the magistracy seem to take the slightest care to bring on to the record those notifications and orders which are essential for proving that the accused has acted in contravention of the law. Until they do so, it seems to be a waste of public time and money to prosecute at all, because whenever convictions are challenged in this Court they have to be set aside when there are omissions of this nature.

The above observations were quoted with approval in Sanatana Mahallik v. State1, referred to above. Despite such observations, the Prosecutor did not choose to produce and prove the notification in the instant case. The learned Magistrate went wrong in observing that the Petitioners should have called for the notification from the Forest Department. The onus being on the prosecution to prove all the ingredients of the offence, it was no part of the duty of the Petitioners to call for the notification. There being no evidence that the necessary notification had been issued declaring the forest in question as a reserved forest, the conviction u/s 37 of the Act cannot be sustained in law.

In the result, the criminal revision is allowed, the conviction and sentence being set aside. The Petitioners are acquitted of the charge u/s 37 of the Orissa Forest Act. Fines, if already realised, be refunded to the Petitioners.

Revision allowed.