Research › Browse › Judgment

Himachal Pradesh High Court · body

1991 DIGILAW 183 (HP)

STATE OF HIMACHAL PRADESH v. AMI CHAND

1991-12-27

D.P.SOOD

body1991
JUDGMENT D. P. Sood, J.—The State of Himachal Pradesh through the instant appeal has assailed the impugned judgment dated December 30. 1987, passed by the learned Sub-Divisional Judicial Magistrate, Rampur Bushar, District Shimla, whereby the respondent was acquitted of the offence under section 33 of the Indian Forest Act. 2. The complaint was filed against the respondent for the commission of the aforesaid offence alleging illicit encroachment upon four Bighas of land forming part of Bhadral’ demarcated protected forest. The trial Court by the aforesaid impugned judgment acquitted the respondent for want of proof of notification. The State of Himachal Pradesh has come up in this appeal against the impugned judgment recording order of acquittal. 3. The allegation against the respondent from the complaint appears to be that Bhadral forest was a demarcated protected forest and the respondent had encroached therein and broken up the land as was found on April 23, 1985. The damage report (Ex. PW-l/A) was prepared besides lqbalnama (Ex. PW-l/B), which was got signed from the accused. Later he was prosecuted. 4. Substance of accusations was put to the respondent-accused, who pleaded not guilty and claimed to be tried. According to him he was in possession of the alleged encroached land since the time of his forefathers, 5. On appraisal of the evidence, the learned trial Court acquitted the respondent on the ground that the aforesaid forest was not proved to be demarcated protected forest by any cogent and convincing evidence by the prosecution. 6. Shri C. L. Sharma, Advocate appearing as Special Public Prosecutor for and on behalf of the appellant, vehemently attempted to persuade this Court by submitting that judicial notice of the official Gazette can be taken by this Court to hold that the aforesaid Bhadral forest was demarcated protected forest. According to him the learned Court below has erred in having brushed aside the copy of the notification (Mark X) in respect thereof and thus recording order of acquittal in favour of the respondent/ accused. 7. Sections 29 to 39 of the Indian Forest Act, 1927 (shortly hereinafter referred to as the Act’) are material. According to him the learned Court below has erred in having brushed aside the copy of the notification (Mark X) in respect thereof and thus recording order of acquittal in favour of the respondent/ accused. 7. Sections 29 to 39 of the Indian Forest Act, 1927 (shortly hereinafter referred to as the Act’) are material. The procedure of declaring protected forest is laid down in section 29 of the Act, which provides that the State Government may by notification in the official Gazette declare the provisions of Chapter IV of the Act applicable to any forest land or wasteland which is not included in a reserved forest, but which is the property of Government, or over which the Government has proprietary rights, or to the whole or any part of the forest produce of which the Government Is entitled. The forest land comprised in such notification is referred to in the Act as protected forest. Sub-section (3) of section 29 of the Act provides for certain inquiries to be made before declaring a forest as the protected forest’. Under section 30, the State Government is authorised inter-alia to declare any trees or class of trees in protected forest to be reserved from the date to be fixed by notification or to prohibit from a date fixed for the removal of any forest produce and the breaking up or clearing for cultivation of any land in a protected forest for such terms, not exceeding thirty years as the State Government thinks fit. Resultantly, the rights of private persons, if any, over such portion shall stand suspended during such term provided that the remainder of such forest be sufficient and in a locality reasonably convenient, for the due exercise of the rights suspended in the portion so closed. The Collector then is required under section 31 to cause translation into the local vernacular of every such notification issued under section 30 to be affixed in a conspicuous place in every town and village in the neighbourhood of the forest comprised in the notification. Section 32 entitles the State Government to make rules to regulate the forest matters set out in the said section including "clearing or breaking up of land for cultivation or other purposes in such forest". Section 33 provides penalties for acts in contravention of notification under section 30 or for rules under section 32. 8. Section 32 entitles the State Government to make rules to regulate the forest matters set out in the said section including "clearing or breaking up of land for cultivation or other purposes in such forest". Section 33 provides penalties for acts in contravention of notification under section 30 or for rules under section 32. 8. In the instant case Sh Rattan Dass PW 2 has proved Tatima (Ex. PW 2/A), Jamabandi (Ex PW 2/B) The column of possession in the Jamabandi and as per admission of PW 2, shows the said forest owned and possessed by the State Government to be in possession of "Bashindgan Deh". Also as per the testimony of Dharam Singh (PW 3), a marginal witness of Iqbalnama (Ex. PW 1/B), the land in question had been broken up by the accused for the last two-three years No doubt, copy of notification has been produced but it has not been produced in accordance with law. Section 78 of the Evidence Act deals with proof of other official documents. There is no gainsaying the fact that notification of the State Government in any of its department is a public document and it can be proved by the production of the records of the department or if its copy duly certified by the Head of the Department accordingly is proved in evidence. In the instant case, neither the notification has been proved nor its duly certified copy as envisaged under section 78 of the Evidence Act has been produced or proved on record. 9. Apart from it, even if the aforesaid copy of the notification be assumed to be legal and valid notification for the sake of argument, the requirement of section 31 of the Act has not been proved. Admittedly, as per the prosecution evidence the land of the accused adjoins to that of the alleged encroached land. 9. Apart from it, even if the aforesaid copy of the notification be assumed to be legal and valid notification for the sake of argument, the requirement of section 31 of the Act has not been proved. Admittedly, as per the prosecution evidence the land of the accused adjoins to that of the alleged encroached land. Section 31 referred to above envisages that the Collector shall cause a translation into the local vernacular of every notification issued under section 30 to be affixed in a conspicuous place in every town and village in the neighbourhood of the forest comprised in the notification Here neither oral nor documentary evidence has been adduced to show whether notification (Mark X) was translated in the local vernacular and whether its copy was affixed in a conspicuous place in the neighbouring villages as envisaged therein This procedure is meant only so that the respondents of the neighbouring villages, much less the accused, may acquire knowledge as to the declaration of a particular forest into demarcated protected forest, In the absence of such procedure having not been followed by the appellant, ii would be against the principle of natural Justice to permit the subject of a Slate including the accused to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence, have acquired any knowledge Natural justice requires that before a law can become operative it must be promulgated or published It must be broadcast in some recognisable way so that all persons may know what it is ; or at the very least, there must be some special rule or regulation or some other way or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. In the absence thereof a law cannot come into being by merely issuing a notification without giving it due publicity in accordance with the mandatory provisions of law. 10. Testing the facts and circumstances of the instant case by the touch-stone of the principles referred to above, it appears that no such publicity, particularly in accordance with the mandatory provisions of section 31 of the Act, had been given in the neighbouring area where the accused was residing. 10. Testing the facts and circumstances of the instant case by the touch-stone of the principles referred to above, it appears that no such publicity, particularly in accordance with the mandatory provisions of section 31 of the Act, had been given in the neighbouring area where the accused was residing. In that view of the matter, the approach of the learned trial Court cannot be said to be purely arbitrary or imaginary. In other words, there appears to be no infirmity in the impugned judgment nor it calls for any interference by this Court. As such the appeal is dismissed. Appeal dismissed.