Oral evidence is not admissible to prove that a forest is a private protected forest under the Bihar Private Protected Forests Act of 1947. The fact that a forest has been constituted as a private protected forest can only be proved by the production of the Gazette or its certified copy.

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 on 23-1-1951 forest Guards Ramanand Singh and Sakti Singh while they were patrolling in that jungle found the aforesaid three persons cutting the sal woods from that forest. The two forest guards raised a protest on which those persons stated that they were cutting wood from their raiyati land and it was open to them to take any action they liked. The matter was ultimately reported to Mr. M. K. Singh, the officer in charge of that forest. He on getting the report obtained a warrant and searched, the houses of those persons and recovered 439 poles from the house of Teko Chand Singh under 15" girth. Those poles, according to him, tallied with the stumps and they appeared to be freshly cut. The three accused pleaded not guilty to the charge. Their defence was that it was their raiyati land and also that the demarcation had been made after the institution of the case.

5. In support of the charge the prosecution examined a number of witnesses. P. W. 1 is the Forester Mr. M. K. Sinha. He deposed: "This Ghosko forest is a Bihar Private Protected Forest. Notices under Sections 14, 21 and 29 have been served by forest guard Raghunath Singh. It has been published in the Gazette. It has been demarcated and demarcation pillars have been fixed." In cross-examination he further stated: "I cannot say the plot of reservation. Boundary pillars were fixed from before. I have seen some of pillars in all sides. It is a pillar of earth and somewhere it is of stone. I cannot say the exact date. I cannot say the number of pillars. I have seen the actual cutting. I did not ascertain the plot number of the cutting..... .It is not a fact that demarcation pillars have been fixed afterwards. I had no. map with me." P. W. 2 Binda Singh was a search witness. Ramanand Singh, P. W. 3 is the forest guard. He deposed: "It is a B. P. P. P. Act jungle and notices under Sections 14, 21 and 29 have, been served upon the parties", while Sakti Singh, P. W. 4 another forest guard, stated, "It is a Bihar Private Protected Forest and notices under Sections 14, 21 and 29 have been served by forest guard Raghunath Singh." It was on these oral testimony given by the three witnesses, namely, Mr. M. K. Singh, Ramanand Singh and Sakti Singh, that the prosecution wanted to establish that the forest was in fact a Bihar Private Protected forest and as such the provisions of the Bihar Private Protected Forests Act of 1947 were applicable to the facts of the case. The learned Magistrate accepted this contention and held: "it is quite clear that Gazette notification showed that the Ghosko jungle was taken by the Govt. under Bihar Protected Forest" and convicted and sentenced the accused as stated above.

6. Against this order of conviction and sentence passed against the petitioners on the finding stafed a