K.V.RATHNAM, J. - (1.)THIS appeal preferred under Section 417 Criminal Procedure Code is directed against the order of the 3rd class, Magistrate, Udaipur acquitting the accused of an offence punishable under Section 26(1)(a) of the Indian Forest Act.
(2.)THE case of the prosecution is that on 27.6.1967 at about 8 A.M. the accused Raimohan Ghosh was found clearing some portions in a Jungle in respect of which a notification under Section 4 of the Indian Forest Act was issued. In support of the prosecution case. Sankar Bhowmik the patrolling officer and Bir Mohan Deb Barma a guard of the Forest Department are examined. The learned Magistrate, in view of the admissions of the two witnesses that the 'dao' with which the accused was clearing the jungle was not recovered and that the accused was not arrested, felt a doubt as to whether the accused was actually clearing the forest area and consequently acquitted the accused giving him the benefit of doubt. Against that order this appeal is preferred
(3.)AT the out -set. Mr. Choudhury for the accused contended that as no notification was issued under Section 20 of the Act declaring the area as 'reserved forest' the prosecution of the accused for an offence under Section 26(1)(a) of the Act is not maintainable. In support of his contention reliance is placed on Mansid Oraon v. The King, AIR 1951 Pat. 380 and Union of India v. Abdul Jalil, AIR 1965 SC 147. But these decisions do not lay down that for prosecuting a person for an offence punishable under Section 26(1)(a) issuance of a notification under Section 20 of the Act is a condition precedent. Section 26 itself makes a distinction between an offence punishable under Section 26(1)(a) and the offence punishable under the other limbs of that Section. If the accused is being prosecuted for any offence punishable under Section 26(1)(b) to (j) then it would be necessary for the prosecution to establish that the area in which the offences were committed is a 'reserved forest' in which case the notification issued under Section 20 is essential. But if the offence is one punishable under Section 26(1)(a) namely making fresh clearings prohibited by Section 5, it is sufficient if a notification was issued under Section 4 of the Act. In the Patna case the accused was prosecuted for the acts mentioned in clauses (f) and (h) of Section 26(1) and the prosecution has not produced any notification issued under Section 20 of the Act which was essential to find the accused guilty for the offences charged. Even in the Supreme Court decision relied on by Shri Choudhury this aspect has been dealt with in para 21 at page 155 and a distinction was drawn between an offence punishable under Section 26(1)(a) and the other offences mentioned in Section 26(1)(b) to (3). To find a person guilty for an offence under Section 26(1)(a) it is sufficient if there is a notification under Section 4 of the Act and a notification under Section 20 is not a pre -requisite. In State v. Surendra Sangma 1964 (2) Cr. L.J., 496 (Tripura) this court has held that when once a notification was issued under section 4 of the act, if any person makes any fresh clearings in that area prohibited by Section 5 he would be liable for punishment under Section 26(1)(a) of the Act. In that case though the accused admitted having made the clearings, the magistrate acquitted him on the ground that the area was not notified under Section 20 of the Act. The order of acquittal was set aside and the accused was convicted on the basis that it is not necessary for the prosecution to establish that the forest is a reserved forest and that a notification under Section 20 declaring the area as reserved forest was issued. As such, there are no merits in the preliminary objection raised by the learned Counsel for the accused.
The learned Magistrate gave the benefit of doubt to the accused and acquitted him on the ground that if really the accused was found engaged in clearing the jungle. P.Ws. 1 and 2 the forest officials would have certainly arrested him and seized the 'dao' with which the accused was clearing the area. Section 52 of the Act provides for the seizure of any article or weapon used in committing a forest offence. No doubt it is in the discretion of the concerned forest official to seize or not to seize the implement used for committing the offence. But when P.W. 1 has chosen to collect and seized the shrubs that were cut he would have certainly seized the weapon also. Section 64 of the Act authorises a forest official to arrest without a warrant any person who is concerned in any, forest offences. But admittedly the accused was not arrested. It is on those two grounds the learned Magistrate felt a doubt as to whether the accused was in fact making fresh clearings in the area and that benefit of doubt was rightly given to the accused. That being so there are no substantial or compelling reasons for this court to interfere with the order of acquittal.

;