1. This is a reference by Mr. Seaton, Sessions Judge of Chittagong, under Section 438, Criminal Procedure Code, in a case arising under Section 41 of the Forest Act and the Rules framed thereunder. The accused were convicted under the Chittagong River Rules made under the Forest Act and were sentenced to pay a fine of Rs. 10 each and in default to suffer simple imprisonment for ten days.
2. It appears that the petitioners' master, the Neptune Tea Estate, obtained a lease in fee simple of a certain tract of waste and forest land from the Government and the petitioners, who were the labourers and tenants of the tea estate, were carrying some bamboos from one portion of the estate to another by the river Kala Pania. They were prosecuted for non-payment of royalty under Rule 2 of the River Rules for the Ghittagong Hill Tracts framed under Section 41 of Act VII of 1878. That rule runs as follows:
'All timber or forest produce which is brought down by the rivers passing out of the Chittagong Hill Tracts shall be liable to stoppage for examination and for the payment of the amount, if any, due to Government thereon at the revenue stations established on the following rivers.' Then the rivers and the revenue stations are mentioned.
3. Clause (a) lays down 'all timber and forest produce shall be liable to stoppage by any officer specially authorised in this behalf by the Conservator of Forests for examination below the revenue stations established under these Rules , and if the forest produce be found to be in excess or different in kind from that specified in the pass granted by the Forest Officer in charge of the revenue station, the Examining Officer shall seize the same and report the case at once to the Divisional Forest Officer.'
4. These Rules obviously relate to reserved forests of Government, and not to a case like this where the tea estate obtained a lease of a forest in fee simple. It appears that with the exception of the rights reserved to Government under the lease, the lessees have all the rights to the property held by them. The petitioners, as servants of the tea estate, were taking bamboos from one portion of the estate to another and we do not think, in these circumstances, that the case comes under Rule 2 of the Rules.
5. It appears from the learned Sessions Judge's letter that the Public Prosecutor also did not attempt to support the conviction under Rule 2. The learned Judge was not only of opinion that the case did not come under Rule 2, but also was of opinion that it did not come under Rule 4 because the transit was not for the purpose of 'export,' which is the case contemplated by that rule. The learned Judge, therefore, at the instance of the Public Prosecutor has referred the case for an expression of our opinion whether the Neptune Tea Estate is required by Rule 4 to take out a pass for the removal of timber or other forest produce from one part of the estate to another, when such removal takes place entirely above a Forest Toll Station.
6. We do not, however, think it necessary to express any opinion on the last question, more specially as no one appears before us on behalf of Government.
7. The learned Sessions Judge was quite right in saying that the conviction is bad under Rule 2. We accept the reference and accordingly set aside the conviction of the petitioners and the sentence passed upon them. The fines, if paid, will be refunded.