S. Rangarajan, J.
1. This is an appeal by the State of Tripura against the acquittal of all the four respondents of offences punishable Under Section 42 of the Indian Forest Act and of respondent No. 1 Sashimohan Malakar, Under Sections 353 and 323 of the I. P. C.
2. The case of the prosecution Is briefly as follows :--
The 4 respondents were each of them found carrying certain logs of wood without a valid transit permit ; it was also stated that the logs had no required mark and that royalty had not been paid on them. According to P. W. 1 (Shri Asit Kumar Chakraborty, Beat Officer of Ananda Bazar Beat Office) when the accused persons, along with yet another, were sought to be apprehended they threw the wooden posts, caught hold of himself and others an averment which stands contradicted by the evidence of P. W. 4 (Hari Mohan Sarkar, Forester of Aicharang Bari Forest Beat Office) who merely said that on seeing the officers named above the said 4 persons left the logs and ran away. There Is thus no reliable evidence that all of them came to catch hold of the prosecution witnesses. It is further stated by P. W. 1, which is supported by P. W. 4 to this extent, that when P. W. 2 (Sukhendu Ch. Chakraborty) caught hold of the first respondent the first respondent struck P. W. 2 with the wooden post possessed by him resulting in some minor injuries to P. W. 2, P. W. 2 has been supported, regarding his sustaining injuries, by P. W. 3 (Dr. Jajneswar Das) who treated him.
3. The learned Magistrate appears to have taken the view that in the absence of evidence from where the trees were taken or said to have been felled no offence under the Forest Act could be said to have been committed. He relied upon a decision in Sidheswar Panda v. The State reported in : AIR1954Ori16 . But our attention has been drawn by the learned Advocate General to a later Division Bench decision, Kasi Prasad v. State of Orissa reported in : AIR1963Ori24 where Narasimham, C. J. has discussed the question at length citing the relevant provisions of Forest Act and the rules framed in Orissa thereunder. Rules were framed in Assam also. After distinguishing the earlier decision It was pointed out by the learned Chief Justice, on an Interpretation of the expression 'forest produce', as used in the Indian Forest Act, there was an implied power in the Government to regulate the transit of timber even if it may not be the property of Government We are in respectful agreement with the learned Chief Justice. The concerned provisions of the Forest Act may now be read :--
2. (4) 'forest produce' includes
(a) the following whether found in, or brought from, a forest or not, that is to say
timber, charcoal caout houc, catechu, wood-oil, resin, natural varnidh, bark, lac, mahua flowers, mahua seeds, kuth, and myrabolams, and
(b) the following when found in, or brought from, a forest, that is to say--
(i) trees and leaves, flowers and fruits, and all other parts or produce not hereinbefore mentioned, of trees,
(ii) plants not being trees (including grass creepers, reeds and moss), and all parts of produce of such plants,
(iii) wild animals any skin, tusks, horns, bones, silk, cocoons, honey and wax and all other parts or produce of animals, and
(iv) peat, surface soil, rock and minerals (including lime-stone, laterite, mineral oils and all products of mines or quarries)
41. (1) The control of all rivers and their banks as regards the floating of timber, as well as the control of all timber and other forest produce in transit by land or water, is vested in the State Government, and it may make rules to regulate the transit of all timber and other forest-produce,
(2) In particular and without prejudice to the generality of the foregoing power such rules may--
(a) prescribe the routes by which alone timber or other forest-produce may be imported, exported or moved into, from or within the State ;
(b) prohibit the import or export or moving of such timber or other produce without a pass from an officer duly authorised to issue the same, or otherwise than In accordance with the conditions of such pass.
4. The Act thus gives the power to the State Government to make rules regulating the transit of all timber in such terms as enables the Government to prescribe that even private timber, other than forest timber, could be carried or transported within a certain area only with a transit permit. This is exactly what the State of Tripura has done by rules framed Under Section 41 of the said Act when it notified (Notification No. 12 dated 29-4-1952 made the transit rule No. (1) 1 as under :--
(1) No timber or other forest produce, including dhari and umbrella, may be transported except as under para. 12 along any path, road or stream unless it is covered and accompanied by a permit, or by a transit pass issued by a Forest Officer specifying therein--
(a) the name of the owner of the forest produce,
(b) the number of pieces and description and, in the case of timber, dimensions.
(c) the mark or marks, If any, and
(d) the date of issue and the date upto which the transit pass will remain in force.
(2) The permit for the collection of forest produce will be considered sufficient in regard to the movement of the produce within the jurisdiction of the. Beat of its origin.
5. It is, therefore, seen that even though the particular pieces of timber in question were not proved to be forest grown timber the same would still require at least a transit permit for their being carried within the concerned territory, in accordance with the said Act and notification. This is necessary for the purpose of effective regulation of particularly forest-produce expressly dealt with in detail by the Act ; Rules are empowered to be made to govern other than forest grown timber, even private timber, because no effective regulation of such produce dealt with by the Act would be otherwise possible. There has been no challenge before us of the validity of the concerned rule/notification ; no such challenge seems even possible.
6. In the present case P. W. 1 stated that the accused cut the trees without any permit and they failed to produce the permit asked for. There was no cross-examination on this point. It was also not stated by any of the accused that any of them had a transit permit for carrying the logs in question and that they showed the same to P. W. 1 etc. An offence punishable Under Section 42 of the Indian Forest Act, 1927 has, therefore, been made out, We accordingly set aside the acquittal of all the respondents Under Section 42 of the Indian Forest Act, 1927 and convict the respondents accordingly under the said section.
7. So far as the first respondent is concerned we do not think that despite the scuffle, which is said to have taken place between him and P. W. 2, an offence Under Section 353, I. P. C. has been committed. No offence Under Section 353, I. P. C. would be made out for the simple reason that there is no evidence that this particular offence was committed within 'five' miles from the border of Tripura as staled in notification No. 6 dated 29-4-1952 issued by the Government of Tripura by which the Forest Officers, mentioned in Clause 4 of the Table of Notification No. F 913/VIII-7, dated the 28th March, 1951, issued by the Government of Tripura Gazette dated the 31st March, 1951, could exercise the power to arrest without a warrant Under Section 64 of the said Act in certain cases : one of them is that the offence should be committed within a distance of 5 miles of Tripura border as required by the said notification. There appears to be no evidence that the place of incident was within 5 miles of Tripura border. P. W. 2 had no right to apprehend the first respondent and if there was any scuffle during the course of which P. W. 2 also sustained injuries, respondent No. 1 cannot be said to have committed any offence Under Section 353, I. P. C.
8. The learned Advocate General fairly conceded that he is not pressing the offence Under Section 323 of the I. P. C.
9. Since the offence which has been found to be committed by all the respondents is nothing but a technical one -- not having taken a transit permit as required by rule -- the ends of justice, especially after such a distance of time, do not seem to require the imposition of anything more than a fine of Rs. 10/- to be paid by each of the respondents. The learned Advocate General fairly stated that this appeal against acquittal has been filed by the State only to correct the mistake of law committed by the trial Magistrate, so that a similar mistake may not be committed by the concerned Magistrates in future at least.
10. The respondents are sentenced, each of them, to pay a fine of Rs. 10/- (Rupees ten only) in default to undergo simple imprisonment for one week. The appeal is partly allowed and the acquittal of the respondents is set aside to the above extent only. Three weeks time for payment of fine is given.