A notification issued by the Government declaring a forest as a reserved forest must be properly proved and published in the manner required by law in order to be valid.

JUDGMENT :

B.K. Patra, J. - The Plaintiffs were convicted u/s 26(1) of the Indian Forest Act (hereinafter called the Act), and each of them was sentenced to pay a one of Rs. 30/-, in default to simple imprisonment for ten days. The prosecution case is that on 28-2-1966, the Plaintiffs entered inside the Devgiri Reserved forest and cut small trees and shrubs inside coupe Nos. 20 and 21 and cleared the area. The Plaintiffs denied having committed the offence. The trial Court, however on a consideration of the evidence placed before him held that the Plaintiffs did enter into the Devgiri forest and cleared a certain area therein. To prove that the area which was cleared within the reserved forest, the prosecution relied on ext. 5 which purports to be a notification dated 15th December, 1946 issued by the Nilgiri Durbar in exercise of its powers under Sub-section (c) of Section 19 of the Nilgiri State Forest Act, 1946 declaring that Devgiri forest is a reserve forest.

2. The finding of the Court below that the Plaintiffs had cleared some areas within the Devgiri forest is not assailed before me. The only contention put forward on behalf of the Plaintiffs by Mr. U.S. Misra, the learned Advocate is that the prosecution has failed to establish by admissible evidence that the forest in question is a reserved forest.

3. Sections 3 to 27 of the Act occurring in Chapter II relate to reserved forests. Section 3 provides that the State Government may constitute any forest-land or waste-land which is the property of Government a reserved forest in the manner provided in the succeeding sections. Sections 4 to 19 deal with the detailed procedure for making enquiries etc. and Section 20 provides that if the conditions mentioned therein are satisfied, the State Government shall publish a notification in the official gazette, specifying definitely, according to boundary marks erected or otherwise, the limits of the forest which is to be reserved, and declaring the same to be reserved from a date fixed by the notification. Sub-section (2) of the Section provides that from the date so fixed such forest shall be deemed to be a reserved forest. By Orissa Act XI of 1954, Sub-section 20-A was inserted in the Act, and this section so far as material provides as follows:

Section 20-A(1) Notwithstanding anything contained in this Act or in any other law for the time being in force, any forest land or waste land in the merged territories which had been recognized by the Ruler of any merged State immediately before the date of merger as a reserved forest in pursuance of any law, custom, rule, regulation, order or notification for the time being in force xxxx shall be deemed to be reserved forests for the purposes of this Act.

Explantion II "Ruler" includes the Darbar administration prior to the date of the merger and "State Government" includes the successor Governments after the said date.

Section 21 provides that the Forest Officer shall, before the date fixed by such notification (notification referred to in Section 20) cause a translation thereof into the local vernacular to be published in every town and village in the neighborhood of the forest.

4. As already indicated the prosecution in order to prove that the disputed forest is a reserved forest, relied on Ext. 5 which purports to be a notification issued by the Nilgiri Darbar. If such a notification had been issued by the Darbar it undoubtedly would be a public document of which secondary evidence can be given as provided in Section 65(e) of the Evidence Act. Section 78 of the Evidence Act which deals with proof of official documents provides inter alia that a notification which is issued by the Central Government or the State Government can be proved by the production of certified copy of the same Certified to be a true copy by the concerned head of the Department. Ext. 5 admittedly has not been certified by the Head of the Forest Department, but is certified by the Divisional Forest Officer who is not