Ahmad, J.

1. This is a reference under Sec. 438, Criminal P. C. by Mr. S. B. Sengupta, Sessions Judge of Hazaribagh.

2. In the letter of reference the learned Sessions Judge has recommended that the order dated 5-5-1952 passed by Mr. Rule A. Singh, Sub-Deputy Magistrate, 1st Class, Giridih, convicting three persons, namely, Jai Gopal Singh, his father Teko Chand Singh and Bipal Mahto under Sec. 49, Bihar Private Protected Forests Act of 1947, and sentencing each one of them to pay a fine of Rs. 40/-in default one months rigorous imprisonment be set aside.

3. In the district of Hazaribagh there is a jungle known as Ghosko jungle. Sometime back, according to the prosecution, this Ghosko jungle was under the provisions of Sec.13, Bihar Private Protected Forests Act of 1947 constituted a private protected forest in the manner provided in the Act and in due course the State Government published the necessary notification as well in the official Gazette as required by Sec.30 of the Act specifying definitely, according to boundary marks erected or otherwise, the limits of the forest, and declaring the same to be a private protected forest.

4. The case of the prosecution was that o