JUDGMENT : B.K. Patra, J. - The Plaintiffs were convicted u/s 26(1) of the Indian Forest Act (hereinafter called the Act), and each of them was sentenced to pay a one of Rs. 30/-, in default to simple imprisonment for ten days. The prosecution case is that on 28-2-1966, the Plaintiffs entered inside the Devgiri Reserved forest and cut small trees and shrubs inside coupe Nos. 20 and 21 and cleared the area. The Plaintiffs denied having committed the offence. The trial Court, however on a consideration of the evidence placed before him held that the Plaintiffs did enter into the Devgiri forest and cleared a certain area therein. To prove that the area which was cleared within the reserved forest, the prosecution relied on ext. 5 which purports to be a notification dated 15th December, 1946 issued by the Nilgiri Durbar in exercise of its powers under Sub-section (c) of Section 19 of the Nilgiri State Forest Act, 1946 declaring that Devgiri forest is a reserve forest. 2. The finding of the Court below that the Plaintiffs had cleared some areas within the Devgiri forest is not assailed before me. The only contention put forward on behalf of the Plaintiffs by Mr. U.S. Misra, the learned Advocate is that the prosecution has failed to establish by admissible evidence that the forest in question is a reserved forest. 3. Sections 3 to 27 of the Act occurring in Chapter II relate to reserved forests. Section 3 provides that the State Government may constitute any forest-land or waste-land which is the property of Government a reserved forest in the manner provided in the succeeding sections. Sections 4 to 19 deal with the detailed procedure for making enquiries etc. and Section 20 provides that if the conditions mentioned therein are satisfied, 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. Sub-section (2) of the Section provides that from the date so fixed such forest shall be deemed to be a reserved forest. Sub-section (2) of the Section provides that from the date so fixed such forest shall be deemed to be a reserved forest. By Orissa Act XI of 1954, Sub-section 20-A was inserted in the Act, and this section so far as material provides as follows: Section 20-A(1) Notwithstanding anything contained in this Act or in any other law for the time being in force, any forest land or waste land in the merged territories which had been recognized by the Ruler of any merged State immediately before the date of merger as a reserved forest in pursuance of any law, custom, rule, regulation, order or notification for the time being in force xxxx shall be deemed to be reserved forests for the purposes of this Act. Explantion II "Ruler" includes the Darbar administration prior to the date of the merger and "State Government" includes the successor Governments after the said date. Section 21 provides that the Forest Officer shall, before the date fixed by such notification (notification referred to in Section 20) cause a translation thereof into the local vernacular to be published in every town and village in the neighborhood of the forest. 4. As already indicated the prosecution in order to prove that the disputed forest is a reserved forest, relied on Ext. 5 which purports to be a notification issued by the Nilgiri Darbar. If such a notification had been issued by the Darbar it undoubtedly would be a public document of which secondary evidence can be given as provided in Section 65(e) of the Evidence Act. Section 78 of the Evidence Act which deals with proof of official documents provides inter alia that a notification which is issued by the Central Government or the State Government can be proved by the production of certified copy of the same Certified to be a true copy by the concerned head of the Department. Ext. 5 admittedly has not been certified by the Head of the Forest Department, but is certified by the Divisional Forest Officer who is not the Head of the Department. The contention of the Plaintiffs that Ext. 5 has not been properly proved appears to be well-founded. A similar question came up for consideration before the Patna High Court in Janu Khan and Others Vs. The State. The case considered there related to a conviction u/s 33 of the Act dealing with protected forests. The contention of the Plaintiffs that Ext. 5 has not been properly proved appears to be well-founded. A similar question came up for consideration before the Patna High Court in Janu Khan and Others Vs. The State. The case considered there related to a conviction u/s 33 of the Act dealing with protected forests. A copy of the Government notification declaring the forest in question as a protected forest was produced in that case but the copy bad been certified by a Forest Officer and not the Head of the Department. Sahai, J. held that the notification had not been legally proved and observed: If the copy which is on the record had been certified by the head of the department which issued the notification, it could certainly be received in evidence and taken into consideration. It could also be taken into evidence if the official gazette in which the notification purported to have been printed by order of the Government had been produced for inspection of the Court. No attempt was made to prove the document in either way. The copy is certified only by a forest officer to be a true copy. Hence, I agree with Mr. Ghosal that this notification has not been legally proved. It cannot, therefore, be taken into consideration. 5. The prosecution case also suffers from another infirmity. To prove the notification u/s 20 of the Act, the mere production of the notification itself or a copy duly certified to be a true copy is not enough. It would also have to be proved that the notification had been published in the manner and in accordance with the provisions of Section 21. Such proof is wanting in this case. Corresponding to Sections 20 and 21 of the Act which relate to reserved forests, there are Sections 30 & 31 which relate to protested forests. Section 30 deals with powers of the State Government to issue notification declaring such forests as protected forests and Section 31 provides that the Collector shall cause a translation into the local vernacular of every notification issued u/s 30 to be affixed in a conspicuous place in every town and village in the neighbourhood of the forest comprised in the notification. In The State of Bihar Vs. Munshi Kahar and Others certain persons were prosecuted u/s 33(1)(0) of the Act. In The State of Bihar Vs. Munshi Kahar and Others certain persons were prosecuted u/s 33(1)(0) of the Act. The relevant notification was not produced at the trial but was sought to be produced at the hearing of the appeal preferred against the order of acquittal. In that connection their Lordships observed: Had this notification been brought on the record at the stage of the trial then it would have been open to the defence to plead, and, if necessary, to prove non-compliance of the provisions of Section 31. It would, in my opinion, be prejudicial to the Respondents to assume at this stage that the notification had been duly published as required by the section. In the present case, had the notification issued by the Nilgiri Darbar been properly proved and admitted in evidence it would lave been open to the defence to plead that the requirements of Section 21 of the Act had not been complied with and they are deprived of this opportunity. 6. Mr. Ramdas, appearing for the State suggests that in case I hold that the notification issued by the Nilgiri Darbar has not been properly proved, the case should be remitted back to the trial Court for rectification of the defect, and that, in that event, the accused may also have an opportunity to put forth his defence that there has not been proper publication as required by Section 21 of the Act. The occurrence in this case took place more than three years ago and the Plaintiffs have already had the ordeal of defending themselves in two Courts. If the prosecution is careless in proving the notification in the manner laid by law, the accused should not suffer for these laches. I, therefore, do not think that this is a fit case in which such indulgence should be shown to the prosecution. 7. I would according by allow this application, set aside the conviction of the Plaintiffs and the sentence imposed upon them. Fines, if any, paid should be refunded to them at; once. Final Result : Allowed