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2012 DIGILAW 1332 (JHR)

Wazir Mohammad v. State of Bihar

2012-09-06

H.C.MISHRA

body2012
JUDGMENT: By Court: Heard learned counsel for the petitioners and learned A.P.P. for the State. 2. The petitioners are aggrieved by the Judgment dated 25th November 1999 passed by learned Sessions Judge, Palamau at Daltonganj, in Criminal Appeal No. 111 of 1998, whereby the appeal, filed against the Judgment of conviction and Order of sentence dated 17th August 1998 passed by Sri P. N. Rai, learned Judicial Magistrate 1st Class, Daltonganj, in C.F. No. 574 of 1993| T.R. No. 463 of 1998, has been dismissed by the learned Appellate Court below with modification in sentence. It may be stated that on the basis of the evidence on record, the petitioners were found guilty for the offence under Section 33 of the Indian Forest Act and were convicted for the same. Upon hearing on the point of sentence, the petitioners were sentenced to undergo rigorous imprisonment for eight months each. The said conviction of the petitioners was maintained by the learned Appellate Court below, but the Appellate Court below dismissed the appeal after modifying the sentence to rigorous imprisonment for six months for the offence under Section 33 of the Indian Forest Act. 3. From the offence report, it appears that the petitioners were apprehended on 7.11.1993 along with four pieces of wood, i.e., three pieces of ‘semal Latha’ and one piece of ‘semal Khamba’ from the protected forest area and four bullocks and other articles were also recovered, which were with the petitioners. The case was instituted against the petitioners for the offence under Section 33 of the Indian Forest Act, for which, they were ultimately put to trial and on the basis of evidence adduced by the prosecution, they were convicted and sentenced as aforesaid. 4. Learned counsel for the petitioners has taken a short point in this revision and has pointed out from the Judgment passed by the Trial Court below that the Notification with respect to the protected forest was proved in the Court below as Ext.5. Ext.6 is the Notification, by which Semal tree was also notified as reserved. Learned counsel has pointed out that Notification under Section 29 of the Indian Forest Act, notifying the protected forest, was issued on 2.9.1955. Ext.6 is the Notification, by which Semal tree was also notified as reserved. Learned counsel has pointed out that Notification under Section 29 of the Indian Forest Act, notifying the protected forest, was issued on 2.9.1955. It is submitted by the learned counsel that the date of occurrence being 7.11.1993, the Notification was not in force, as the validity of the Notification issued under Section 29 of the Indian Forest Act is only for a period of 30 years and accordingly, the said Notification expired in 1985 itself. Learned counsel for the petitioners submitted that no offence can be said to be made out against the petitioners for the offence under Section 33 of the Indian Forest Act, as on the date of alleged seizure from the petitioners, there was no Notification in force notifying the forest to be protected forest. Learned counsel has placed reliance upon a decision of this Court in the case of Anup Kumar Vs. State of Jharkhand, as reported in [2012 (2) East Cr C 21 (Jhr)], wherein relying upon a decision of the Patna High Court in the case of Janu Khan & Ors. Vs. State of Bihar ( AIR 1960 Pat 213 ), it has been held that Notification under Section 29 of the Indian Forest Act expires in 30 years and looses its force and if on the date of occurrence the notification is not in force, no offence can be said to be made out under Section 33 of the Indian Forest Act. Placing reliance on the said decision, learned counsel submitted that the impugned Judgments passed by the Courts below cannot be sustained in the eyes of law. 5. Learned A.P.P. for the State, on the other hand, has submitted that there is no illegality in the impugned Judgments passed by the Courts below worth interference in the revisional jurisdiction. 6. After having heard learned counsels for the parties and upon going through the record, I find that though the Notification issued in the year 1955 notifying the forest to be protected forest from where the recovery was made, has been proved by the prosecution as Ext.5, but no further notification issued under the Act has been brought on record, to show that on the date of alleged seizure from the petitioners, the forest was still a protected forest. It is apparent that the Notification which has been proved as Ext.5 was issued in the year 1955 itself lost its force in the year 1985 and accordingly, on the date of alleged seizure from the petitioners i.e. on 7.11.1993, there was no notification in force notifying the forest to be protected forest and in absence of any such notification, the conviction and sentence of the petitioners under Section 33 of the Indian Forest Act cannot be sustained in the eyes of law. 7. In view of the aforementioned discussions, the impugned Judgment and Order dated 17th August 1998 passed by Sri P. N. Rai, learned Judicial Magistrate 1st Class, Daltonganj, in C.F. No. 574 of 1993 T.R. No. 463 of 1998, as also the Judgment dated 25th November 1999 passed by learned Sessions Judge, Palamau at Daltonganj in Cri. Appeal No. 111 of 1998, are hereby, set aside. Consequently, the petitioners stand acquitted of the charge. The petitioners are on bail and they also discharged from the liabilities of their respective bail bonds. 8. This criminal revision is accordingly, allowed. Let the Lower Court Records be sent back to the Court below forthwith.