1. This case raises a somewhat novel point under Section 212 (b) of the Estates Land Act. The complainant, the Shrotriemdar, distrained some cattle belonging to the petitioners before me for arrears of rent due to him. The cattle were not ploughing cattle but were two she-buffa-loes and a calf. The lower Courts have found that the accused forcibly rescued the cattle after they have been distrained and have convicted them under Section 212 (b) and sentenced each of them to a fine of Rs. 120.
2. It is argued before me that Section 212(b) does not deal with the rescue of cattle at all and that such rescue not an offence under that section. Section 212(6), leaving out the words inapplicable here, reads as follows-forcibly or clandestinely removes any produce duly distrained under this Act.' The question to be decided is, whether cattle can be brought under the I word 'produce.' I am inclined to think that it cannot. The words of Section 212(b) seem to be taken from the Bengal Tenancy Act, Section 186, but in that Act the word 'produce' does not appear but the word used is 'property.' The fact that the word ' produce ' is substituted for the word 'property' seems to indicate that it was done advisedly to restrict the scope of the provision. Regarding forcible or clandestine removal of things duly distrained, it seems to me that some light is thrown on this by Sections 77 and 90 of the Estates Land Act. Section 77, Clause (it) states what the landholder may distrain, namely, ' the movable property of the defaulting ryot or the growing crops, or the produce of the land or trees in the defaulter's holding.' That of course includes cattle which are not ploughing cattle which are exempted by Clause (b) of that section. Under Section 90, Clause (b) if a person foroibly or clandestinely takes away movable property once distrained, provision is made for an application by the distrainer to the Collector to pass an order directing that the property be restored or that its value be paid. Then we have got the provision under Section 212(6) which talks about 'produce' duly distrained under the Act being forcibly or clandestinely removed. It seems to me, reading all the sections together, that the word 'produce' in Section 212(6) really means 'produce of the land or trees in the defaulter's holding' dealt with in Section 77(ii). Giving a wide meaning to the word 'produce,' it may probably include a nook of sheep or other cattle and the Public Prosecutor argues that all cattle other than ploughing cattle would come under the word 'produce.' I think this is putting too wide a meaning on the section. For some reason which is not apparent the Legislature has thought fit to exclude things other than produce when forcibly or clandestinely removed from the scope of Section 212(6), for they could easily have used the word 'property' to cover all items of property if they wished. The fact that the word 'property' was replaced by the word 'produce' suggests that it was intended that a restricted meaning should be given to the word 'produce,' and I feel therefore satisfied that we should construe the word 'produce' in Section 212(b) as meaning 'produce of the land or trees in the defaulter's holding.' In this view it must be held that the accused have committed no offence which falls under Section 212(6). The distrainer's remedy seems to be under Section 90 to ask the Collector to get back the distrained property for him or its value.
3. The Revision Petition is therefore allowed and the conviction set aside. The fines, if paid, will be refunded.