Kamala Kanta D(sic) vs The State

Mitter, J.—This Rule is directed against an order of the learned Assistant Sessions Judge of Bankura affirming an order of forfeiture made by a learned Magistrate under the West Bengal Private Forests Act, 1948. The petitioner, who claims to be the lessee of the forest concerned, was convicted u/s 29(1) of the said Act and was sentenced to suffer rigorous imprisonment for one month and to pay a fine of Rs. 200|-, in default to suffer, rigorous imprisonment for four months more. The seized wood was forfeited to the State. On appeal, the said conviction and sentence were set aside, but the order of forfeiture was upheld. Mr. Kiran Mitra on behalf of the petitioner contends that the petitioner having been acquitted of the offence charged and in the absence of any-finding that any forest offence had been committed in respect of the wood, there was no jurisdiction in the learned Assistant Sessions Judge to uphold the order of forfeiture. Mr. Banerjee for the State, on the other hand, contends that there was power to order such forfeiture under sections 34 and 37 of the Act; Mr. Banerjee also contends that the order of the appellate court in the matter was final under, section 41 of the Act.

The power of disposal of any property u/s 34 can only the exercised according to law. Indeed, the section says so. In the facts of this case, the power to confiscate the forest produce concerned could only be exercised in accordance with the provisions of section 37, which is in. these terms:

"37(1), Any forest produce in respect of which a forest offence has been committed and information hail been given to a Magistrate u/s 34 shall, on the conclusion of the trial for such offence, be made over td the owner of the forest from which it was derived or to any other person whom the Magistrate deems to be entitled to the same:

Provided that, if it is not'' known from which forest such produce was derived, such forest produce and toils, boats, motor vehicles, carts and cattle used in committing such forest offence shall be liable to confiscation.

(2) Such confiscation may be in addition to any other punishment which may be awarded under this Act for such offence."

In our view, it is only when a forest offence has been committed that the forest produce concerned can be disposed of in the manner set out in the section. At the conclusion of the trial, it is to be made over to the owner of the forest from which it was derived or to any other person whom the Magistrate deems to be entitled to the same. It is only when it is known from which forest such produce was derived that it is liable to confiscation. The case for the prosecution was that the wood in question had been derived from what was known as the Kankanali forest. The trial court found that the petitioner had committed an offence u/s 29(1) of the Act That finding was set aside by the appellate court. There was no. express finding that a forest offence had, nevertheless, been committed, In our view, a finding that a forests offence has been committed is a pre-requisite to any power to order confiscation. Mr., Banerjee was inclined to argue that the proviso to section 37 gave power to the court to order confiscation, irrespective of any finding as to whether a forest offence had been committed. In our view, this contention is without substance.

As to the effect of section 41, all we need say is that the learned Assistant Sessions Judge having acquitted the petitioner, had no jurisdiction to make or affirm any order of forfeiture and that, therefore, there was no question of his decision, which was without jurisdiction, being final. We would, for the reasons already given, set aside the order of forfeiture made by the learned Magistrate and affirmed by the learned Assistant Sessions Judge, and make the Rule absolute.

Guha Ray, J.

I agree.