No offence by the accused made out.

This appeal is directed against the judgment of the learned Judicial Second Class Magistrate No. 4, Salem acquitting the accused who has been charged for an offence under section 21(d), (e) and (f) , read with sections 36-A and 36-E of the Tamil Nadu Forest Act, 1882.

2. The allegation against the accused was that he was found in possession of seven sandalwood pieces of above 5 kilograms of the value of Rs. 745 in the Reserved Forest of Thirumanur on 17th June, 1978, at about 6-30 a.m. The prosecution case is that this offence was detected by P.W. 1, Forest Range Officer, Rasipuram while he was on his usual rounds with the Forest and other officials of the Forest Department at the Reserve Forest in Thirumanur. As the accused had no licence he was arrested by P.W. 1, the Forest Range Officer, and hammer marks were placed on the sandalwood pieces and they were seized under a mahazar. The accused gave a confession statement, Exhibit P-2, voluntarily which was written by P.W. 2, the Forester. Later, the Forest Range Officer laid the complaint before the Judicial Second Class Magistrate No. 4, Salem.

3. The defence was that the accused was taken to the Forest Range Office and his signature was obtained on a paper and that on the date of occurrence he was at Namagiripettai sleeping in a mill.

4. The learned trial Magistrate found that out of the seven pieces of sandalwood, five alone contained the hammer marks and he accorded the benefit of doubt and acquitted the accused. The State has preferred this appeal against the judgment of acquittal.

5. It is contended for the State that the Court having found hammer marks on five pieces of sandalwood, ought to have convicted the accused under section 36-A. It is pointed out for the respondent that there were no hammer marks on two of the pieces and in the absence of proof that the pieces which contained hammer mark weighed in excess of five kilograms, the respondent cannot be convicted of the offence under section 36-A of the Tamil Nadu Forest Act. There is no oral evidence to show that the five pieces exceeded five kilograms. But, my attention was invited by the learned Public Prosecutor to Exhibit P-3, the statement, which showed that the total weight of the sandalwood seized was 14,900 kilograms and the learned Public Prosecutor pointed out that even if the weight of the two pieces which did not contain hammer marks is excluded and not taken into account, the weight of the five remaining pieces would far exceed five kilograms. It is no doubt true that Exhibit P-3 has been admitted in evidence. But, no one speaks about the contents of Exhibit P-3. Though P.W. 2 makes a reference to Exhibit P-3 as the list of properties given to Court, he admitted in cross-examination that there is nothing in Exhibit P-3 to show as to who seized the sandalwood pieces from the accused and from which place they were seized. Exhibit P-3 only says “List of sandalwood billets produced before the Judicial II Class Magistrate, No. 4, Salem, on 17th June, 1978”, and it is signed by the Forest Range Officer, Rasipuram. There is no reference that these billets were seized from the accused or that they were concerned in the crime. There is no reference to the weight of the seven billets in the confession statement, Exhibit P-2 alleged to have been given by the accused. There is clear admission by P.W. 2 that the accused admitted that he does not know to read and write, that he knows only to sign and that the confession statement was written by P.W. 2. A reading of Exhibit F-2 would show that an illiterate man like the accused would not have given the statement as found in Exhibit P-2. There is therefore, no proof of the fact that the accused was in possession of sandalwood in excess of five kilograms. Much reliance, therefore, cannot be placed on Exhibit P-3.

6. But, the Counsel for the respondent raised another point of greater importance and that is, the prosecution has not marked the notification declaring Th