Babulal Santra vs State

Debabrata Mookerjee, J.—This is a petition for revision of an order made by a Magistrate, first class, Midnapore, on December 1, 1954, convicting the Petitioner u/s 6(1) of the West Bengal Private Forests Act, 1948, and sentencing him to pay a fine of Rs. 100, in default to suffer simple imprisonment for one month against this order of conviction and sentence an application for a reference to this Court was made to the Sessions Judge of Midnapore, who, however, by an order dated January 15, 1955, declined to interfere.

The case for the prosecution briefly was that the Petitioner and another person were directed by the State Government, in pursuance of the provisions of the West Bengal Private Forests-Act (XIV of 1948), to submit a working plan with regard to a particular forest within police station Kharagpur. The Government notification, ex. 1, relates to the proposed plan in. question and calls upon every owner of a private forest in the area defined in the notification to prepare a working plan for the conservation of forest and submit a plan to the Regional Forest Officer on a date mentioned in the notification. It appears that no plan was submitted by the accused Petitioner with the result that the Range Officer made out a working plan which is proved and exhibited in the case. This working plan, ex. 2, was served on the Petitioner and evidence was called by the prosecution in proof of such service. The prosecution allegation is that despite the notice and the working plan served on the Petitioner the latter felled certain trees in his forest and thereby contravened the terms and conditions of the plan, ex. 2, which was duly served upon him. The gravamen of the offence charged in the case was that the Petitioner felled certain trees. That was obviously, according to the prosecution, a piece of conduct which amounted to failure or neglect to carry out the plan devised to conserve the forest.

The Petitioner pleaded innocence and his case appears to be that he was not responsible for the felling of the trees in question and he suggested that miscreants might have been responsible for such felling.

The Petitioner was tried by the learned Magistrate upon these allegations along with another person against whom the evidence, according to the Magistrate, was insufficient. This other person was, accordingly, acquitted of the charge; but the Petitioner was convicted of an offence u/s 6(1) of the West Bengal Private Forests Act, and sentenced as stated above.

Two questions have been raised by Mr. Banerjee appearing in support of this Rule. He has argued that the West Bengal Private Forests Act, 1948, contain express provisions to indicate that the Legislature never intended that they should be put into force in an area or on a date without previous notification in that behalf specifying the date on which and area to which the Act was intended to apply. Sub-section (3) of Section 1 is the provision upon which Mr. Banerjee relies. That Sub-section is in these terms:

This section shall come into force at once and the remaining provisions of this Act, in whole or in part shall come into force in such areas and on such dates as the Provincial Government may, by notification, specify and for this purpose different dates may be specified for different provisions of this Act and for different areas.

It follows that the operation of the Act is strictly limited and excepting Section 1 the rest of the provisions which are really the operative part of the Act will only come into force if and when a notification in that behalf is made by the appropriate authority. "The date has to be mentioned, the area has to be specified in such notification.

The Sub-section makes it quite clear that unless the prosecution proves that a particular part of the Act or the whole of it was extended by a notification to the area concerned on a specified date, no prosecution can possibly succeed for violation of the provisions of the Act.

The Act further provides amongst other things that the Provincial Government may by notification direct the owner of a private forest situated within a notified area to prepare, in the prescribed manner, and submit, within a stated period, to the Regional Officer, a working plan for the conservation of such forest. Provision is made for modification of the plan, if and when submitted; but the failure to submit a plan is also provided against, and Sub-section (3) of Section 3 gives power to the Regional Forest Officer, in consultation with the Conservator of Forests, to prepare a working plan in respect of a private forest the owner of which failed or neglected to submit a working plan. In the present case there was failure alleged on the part of the owner of a private forest, namely, the Petitioner, with the result that a plan was prepared by the Regional Forest Officer. In accordance with the further provisions of the Act the Petitioner was required to carry out the terms of the plan devised by the Regional Forest Officer hut he neglected or failed to conserve the private forest belonging to him which amounted to a contravention of the provisions of the Act contained in Sub-section (1) of Section 6 of the Act.

Prosecution has sought to rely in this case upon an alleged admission contained in ex. 5 which was a reply sent by the Petitioner in answer to the notice service of which was a condition precedent to the institution of the present proceedings. In the reply the Petitioner is alleged to have admitted the felling but he also stated that the trees were felled not by him but by miscreants. The learned Magistrate erred in thinking that he was free to rely upon a part of this admission and reject the other part which did not fit in with the prosecution case. It was quite open to the learned Magistrate to take the contents of ex. 5 as they were in their entirety without qualification. It was not open to him to rely upon a part of the statement and to reject another part which was inconvenient to the prosecution. Section 21 of the Indian Evidence Act makes the admission relevant; but then the law is quite clear that the admission is to he taken as a whole and not piecemeal. In the present case the Magistrate has relied upon the so-called admission of guilt implied by the felling of trees but rejected without reliable evidence the other part of the statement which is inseparably connected with the first part, namely, that the trees were felled by miscreants. The Magistrate was certainly not permitted to do that in law.

The evidence in the case shows that one of the witnesses- P.W. 4 Kirtibash Mahato stated in cross-examination that he had seen the trees being felled but added that he was alone when he saw that. In examination-in-chief, however, the witness made it clear that he was not in a position to say who cut the trees. As far as I can see, that is the only evidence in the case besides-the improbable story of P.W. 3 and the so-called admission contained in ex. 5 which purports to connect the present Petitioner with the crime charged in the case. The evidence, to my mind, such as it is, is wholly insufficient to establish the charge. The evidence of P.W. 4, taking at its best and highest does not go anywhere near proving the charge that the Petitioner had felled the trees and in consequence failed or neglected to work according to the plan prepared by the Regional Forest Officer.

The other point raised by Mr. Banerjee is, to my mind, also substantial. I have already indicated that the Act does not operate sue vigore. It has to be brought into life by an appropriate notification. The notification has, therefore, to be proved that it was duly made and related to the area within which, the private forest in question is situate; and unless and until a notification is so made, the rest of the provisions of the Private Forests Act remain inert and ineffective. Consequently, the issue of a notification under Sub-section (3) of Section 1 is of the utmost importance. The prosecution in the present case has proved ones such notification with a view to showing that the area in which the private forest of the present Petitioner was situate was a notified area. I am afraid the notification which has been proved in the case goes one way, and the evidence in the cases goes entirely the opposite way. The notification says that certain areas included within Garbeta Police Station are to be treated as being covered by it. The evidence in the case of people qualified to speak in the matter, like the Forest Officer shows that the notification related to areas covering private forests within Kharagpur Police Station. It is indeed curious that such a disparity should at all happen in a matter of such vital importance where the provisions of the Act cannot apply of their own force and remain utterly idle without a notification being properly made. It is the case made by the prosecution that the private forest in question is within the Kharagpur Police Station but the notification proved in the case shows that areas were included within the Garbeta Police Station. There seems to be some confusion somewhere. It is indeed to be regretted that no attention appears to have been paid to a vital aspect of the matter such as this. I consider, therefore, Mr. Banerjee''s contention so far as the second point is concerned as being equally substantial.

I must, accordingly, hold that the prosecution has failed to prove the case against the Petitioner, and he cannot in consequence be convicted and sentenced u/s 6(1) of the West Bengal Private Forests Act.

The Rule is accordingly made absolute. The conviction and sentence are set aside. The fine, if paid, will be refunded.