R.S. Bindra, J.C.
1. The petitioner Monoranjan Das was hauled up under Clause (a) of Section 26(1) of the Indian Forest Act, 1927, on the charge that on 5-1-1968 he happened to clear 3 kanis of land from within the reserved forest called Chandrapur without any permit and thereby occasioned a loss of Rs. 500/- to the Forest Department. The defence set up by Monoranjan Das was that the fuel wood found in his possession by the Forest Patrol Officer, Shri Sankar Bhowmick. had been collected by him from the reserved forest on the basis of permit issued to him and that the complainant unnecessarily wanted to harass him with a view to extort illegal gratification from him, The trial Court found the charge established and on negativing the defence plea it convicted Monoranjan Das under Section 26(1) of the Act and sentenced him to a fine of Rs. 25/-, or, in default, seven days' rigorous imprisonment. Having felt aggrieved Monoranjan Das took the matter in revision to the Court of Sessions Judge. Tripura. The latter found substance in the contention advanced before him for the first time on behalf of the convict that in the absence of proof that notifications under Sections 4 and 20 had been issued and that proclamation in terms of Section 6 of the Act had been made, the conviction could not be sustained. He has, therefore, made a reference to this Court recommending that the conviction and sentence of Monoranian Das be quashed.
2. Shri H. C. Nath, the learned Government Advocate, challenged the soundness of the recommendation made by the Sessions Judge. He submitted that for the purpose of proving the charge punishable by Clause (a) of Section 26(1) of the Act. only a notification under Section 4 is requisite, and that a notification under Section 20 and/or proclamation prescribed by Section 6 do not constitute essential factors. Shri N. L. Choudhury, representing the petitioner, however, vehemently urged that to sustain a charge under Clause (a) of Section 26(1) it is indispensable that after the notification under Section 4 is made the proclamation under Section 6 should be effected and that should be followed by a notification under Section 20.
3. To appreciate the respective contentions of the parties' counsel, it is necessary to set out briefly the relevant provisions of the Act. Section 3 gives power to the State Government to constitute any forest-land or waste-land of the nature mentioned therein a reserved forest in the manner provided in the succeeding provisions. The relevant part of Section 4 enjoins that whenever it is decided to constitute any land a reserved forest, the State Government shall issue a notification in the Official Gazette declaring that it has been decided to constitute such land a reserved forest. Section 5 provides inter also that after the issue of a notification under-Section 4. no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the State Government in that behalf. The next Section 6 states that when a notification has been issued under Section 4, the Forest Settlement-Officer shall publish in the local vernacular in every town and village in the neighbourhood of the concerned land, a proclamation specifying the situation and limits of the proposed forest, explaining the consequences which will ensue on the reservation of such forest, and fixing a period of not less than three months to enable the interested persons to put in their claims respecting that land. In Sections 7 to 16 procedure is prescribed for adjudging the merits of the claims made and dealing with cognate matters. Section 17 provides for appeals against orders made under Sections 11, 12, 15 and 16, while Sections 18 and 19 relate to how the appeal shall be filed and who can represent the appellants before the authority concerned. When all the disputes raised by the claimants have been settled at the stage of appeal. Section 20 enacts that the State Government shall publish a notification in the Official Gazette, specifying definitely, according to boundary marks erected or otherwise, the limits of the forest which is to be reserved, and declaring the same to be reserved from a date fixed by the notification. Sections 21 to 25 have no relevancy to the case in hand and so I skip over them. It is Section 26 which prescribes the forest offences. Since the fate of the present reference hangs by the interpretation to be placed on Clause (a) of Sub-section (1) of that Section, I deem it necessary to reproduce that sub-section in extenso. It runs as under:
Any person who-
(a) makes any fresh clearing prohibited by Section 5, or
(b) sets fire to a reserved forest, or, in contravention of any rules made by the State Government in this behalf, kindles any fire, or leaves any fire burning, in such manner as to endanger such a forest;
or who, in a reserved forest-
(c) kindles, keeps or carries any fire except at such seasons as the Forest-officer may notify in this behalf;
(d) trespasses or pastures cattle, or permits cattle to trespass.
(e) causes any damage by negligence in felling any tree or cutting or dragging any timber;
(f) fells, girdles, lops, taps or burns any tree or strips off the bark or leaves from, or otherwise damages, the same;
(g) quarries stone, burns lime or charcoal, or collects, subjects to any manufacturing process, or removes, any forest-produce;
(h) clears or breaks up any land for cultivation or any other purpose;
(i) in contravention of any rules made in this behalf by the State Government hunts, shoots, fishes, poisons water or sets traps or snares or
(j) in any area in which the Elephant's Preservation Act, 1879, is not in force, kills or catches elephants in contravention of any rules so made, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both, in addition to such compensation for damage done to the forest as the convicting Court may direct to be paid.
A plain reading of Sub-section (1) will show that there is a clear distinction between the offence mentioned in Clause (a) and the offences described in clauses (b) to (i). That difference lies in the fact that whereas clauses (b) to (j) relate to offences committed in respect of reserved forests, Clause (a) refers to an offence committed at a stage when the land in respect of which notification under Section 4 is issued but has not been declared a reserved forest in terms of Section 20 of the Act. Section 5 makes the position abundantly clear. It specifically prohibits any fresh clearings for cultivation or for any other purpose, except in accordance with such rules as may be made by the State Government, from the land respecting which a notification under Section 4 has been issued. The notification under Section 4. it will be noted, only exhibits an intention on the part of the Government to constitute the specified land into a reserved forest. A lone distance has to be covered before that intention can be translated into an actuality by issuing another notification under Section 20 of the Act. Clause (a) of Section 26(1) read with sections 4 and 5 leaves no room for doubt on the point that the offence contemplated by that clause can be committed before the land covered by notification under Section 4 can be deemed to be a reserved forest. Consequently, it is not possible to subscribe the view taken by the learned Sessions Judge or to accept the contention raised in this Court by Shri N. L. Choudhury.
4. The matter does not appear to be res Integra. This Court held in the case of The State v. Surendra Sangina 1964 (2) Cri. LJ 496. (Tripura) that if any person makes fresh clearing prohibited by Section 5. he is liable to punishment under Section 26(1)(a) and that it is not necessary that the clearing should have been done by him from land after it has been declared a reserved forest. It was observed further that once a notification under Section 4 is issued, Section 5 would come into play and any clearing done against the provision of the latter Section would constitute an offence punishable under Clause (a) of Section 26(1). Section 5, it was held, is intended to protect the forest in respect of which the State has decided to constitute a reserved forest but before the entire procedure envisaged by the Act to constitute a reserved forest has been completed. The provisions of Section 5, it is manifest, were conceived and enacted from a practical standpoint. After the Government has taken a decision to constitute a particular area of land into a reserved forest. It must be anxious to see that its objective is not frustrated by some irresponsible member or members of the community by cutting the trees etc. from over that land before it is notified under Section 20 as a reserved forest. The various processes prescribed by sections 6 to 17, including the enquiry respecting the claims which may be made by the various persons in regard to the land involved, are bound to take sufficient time, and if provision of the nature enacted in Section 5 were not there, there would not be any deterrence against persons cutting and removing the trees and other natural growth from the area. Section 5 was clearly meant to cover the stage between the two notifications one issued under Section 4 and the other issued under Section 20. I am. therefore, in respectful agreement with the view taken by this Court in the case of Surendra Sangma (supra).
5. The Allahabad High Court also held in the case of Matroo Khan v. The State 1961 (1) Cri LJ 593 (All), that unless an area is declared a notified reserved forest, the only penal provision that exists in the Indian Forest Act is the one contained in the first part of Section 26, and the High Court described that first part as constituted by clauses (a) and (b) of Sub-section (1). The Court observed further that the subsequent part of Section 26 deals with those acts which are prohibited in a reserved forest. I have some reluctance in endorsing the observation of the Court that Clause (b) of Sub-section (1) does not relate to a reserved forest, but, at any rate, I agree with the High Court on the point that Clause (a) definitely relates to land respecting which notification under Section 4 has been issued but the land has not yet been declared to be a reserved forest. There are observations in the case of Union of India v. Abdul Jalil : 1965CriLJ128 , which lend support to the proposition propounded by the learned Government Advocate. In para 21 of the report it is stated unequivocally that as regards the offence under Clause (a) it was conceded by the Attorney-General that 'it was a pre-requisite for a person being held guilty of an offence under that clause that there should be a notification under Section 4' as is made clear by the phraseology of Section 5.
6. In face of the decisions of this Court in the case of Surendra Sanema and of Allahabad High Court in the case of Matroo Khan coupled with the observations made by the Supreme Court in the case of Abdul Jalil, I see no escape from the conclusion that if a person make any fresh clearing from land covered by notification issued under Section 4 but before any proclamation is made under Section 6 or a notification is issued under Section 20, he shall have committed the offence within the meaning of Section 5 read with Clause (a) of Section 26(1),
7. Shri Choudhury cited : AIR1951Pat380 Mansid Oraon v. The King, to buttress the contention that unless a notification under Section 20 is issued there can be no reserved forest nor commission of any offence made punishable by Clause (a) of Section 26(1) Shri H. C. Nath very rightly did not join issue with Shri Choudhury on the first of the two propositions enunciated by the Patna High Court. That proposition looks to be pretty obvious from the phraseology of Section 20 itself. However, the Patha case does not lend support to the other proposition that without a notification under Section 20 there can be no commission of an offence made punishable by Clause (a) of Section 26(1), The offence charged in the reported case was under clauses (f) and (h) of Sub-section (1) of Section 26, and I have observed above that offences made punishable by clauses (b) to (j) can be committed only after the land had been declared a reserved forest by issuing a notification under Section 20. Therefore, the Patna case is clearly distinguishable on facts. The true import of Clause (a) of Section 26(1) was not discussed by the High Court. Likewise, another Patna case relied upon by Shri Choudhury and reported in AIR 1947 Pat, 264 Bhagwan Sahai v. Divisional Forest Officer, is of no help in advancing the proposition canvassed in this Court by him. The relevant observations were, firstly, in the nature of obiter dictum, and, secondly, the only observation made was that it is only on the issue of a notification under Section 20 that a particular forest becomes a reserved forest and this proposition, as held above, is altogether unexceptionable.
8. The last point taken by Shri Choudhury was that in the absence of any data on the present record it is not possible to accept the contention of the prosecution that in respect of the land in dispute any notification under Section 4 of the Act had been issued. He urged on the authority of AIR 1954 Nag. 296 Mathuradas v. The State, that the Court is not entitled to take judicial notice of a notification published in the Government Gazette and that it is obligatory for the prosecution to prove the fact of the publication of the notification in the manner provided in Section 78 of the Evidence Act. That section prescribes inter alia that the Acts, orders or notifications of the Central Government or State Government or any Department may be proved by any document purporting to be printed by order of such Government. In the reported case it was specifically held by the High Court that a notification fixing the retail price of yarn under the Cotton Textiles (Control)) Order. 1948. published in the Madhya Pradesh Gazette can be proved by the production of the State Gazette. Shri H. C. Nath, the learned Government Advocate, produced in this Court the notification issued by the Chief Commissioner of Tripura under Section 4 of the Act on 9th of June. 1961, in respect of the land in dispute. Therefore, it is proved beyond doubt that notification under Section 4 has been issued respecting the land we are concerned with. Consequently the objection raised has to be negatived.
9. No other point was urged in support of the reference made by the learned Sessions Judge.
10. As a result, I decline the recommendation made by the Sessions Judge because he had misconceived the true scope of Clause (a) of Section 26(1) of the Act, with the consequence that the order of the Trial Court stands. In other words, the conviction and sentence of the petitioner are upheld and his revision petition stands rejected.