Prinsep and Stanley, JJ.
1. We have had some difficulty in ascertaining the facts of this ease relating to a breach of the rules passed under the Forest Act in which the petitioners have been convicted and sentenced to a fine, and by a subsequent order have had their boats confiscated under Section 54. The matter has been tried under summary procedure, and although it may be admitted that the object of this procedure is to shorten the course of the trial, it was nevertheless incumbent upon the Magistrate to put on record sufficient evidence to justify his order.
2. The rule before us relates to the order of confiscation of boats belonging to the petitioners. The evidence regarding the use of these boats for purposes forbidden by the rules passed under the Forest Act by no means proves that the boats belonging to the petitioners were used for illegal purposes. But in addition to this, we are of opinion that the order for confiscation cannot be maintained on the authority of the case of Empress v. Nathu Khan (1882) I.L.R., 4 All., 417. Under the terms of Section 54 of the Forest Act, an order of confiscation cannot be regarded as an order incidental on the conviction. The confiscation is by the terms of that section declared to be a punishment, for it is in addition to any other punishment prescribed for the offence. Having regard to the terms of the law, we agree with the judgment cited that, being a punishment, the order should have been passed simultaneously with the other punishment for the offence of which the petitioners have been convicted. On both grounds, therefore, we think that the order of confiscation cannot be sustained, and that the boats must be restored to the petitioners.
3. No. 828. In the case of Jaun Mirdha there is, we think, sufficient evidence to identify the boats as being the boats seized by the forest officers on finding a breach of the law on the part of the petitioner. But in this case, the objection taken in the case of Empress v. Nathu Khan (1882) I.L.R., 4 All., 417, also applies. The order for confiscation was not passed, until a considerable time after the order of conviction. We think, therefore, that on this ground the order of confiscation must be set aside and the boats restored to the petitioner.
4. No. 835. The case of Basir Sheikh is exactly similar to that of Jaun Mirdha, and the order of confiscation muse be set aside and the boats restored for the same reasons.