Govt. Appeal (SJ) No.2 of 1996 Against the order and judgment dated 15. 11.1995 Passed in Forest Case No. 14/91 Trial No. 118/95 (State Vs. Muneshwar Lal) by Judicial Magistrate Ist Class, Gaya. State of Bihar …………………………….Appellant. Versus Muneshwar Lal, son of Bangali Lal, resident of Mohalla- G.B. Road, P.S. Kotwali and owner of shop, situated at G.B. Road, P.S. Kotwali, District- Gaya, Town- Gaya. …Accused-Respondent. For the State :- Mr. Sujit Kumar Singh, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad,J. Heard. No one appeared on behalf of the respondent. Learned counsel for the appellant is present. 2. This Government Appeal is directed against the order and judgment dated 15th November, 1995 in Forest Case No. 14/91 Trial No. 118/985 passed by Vinay Kumar Sinha, Judicial Magistrate Ist Class, Gaya, by which the accused-respondent has been acquitted of the under Section 42 of the Indian Forest Act, 1927 and under Section 20 of the Bihar Forest Produce (Trade and Regulation) Act, 1984. 3. The prosecution case as alleged that 6 Kg. Katha was recovered from the shop of the respondent. Seizure list 2 was prepared and respondent-accused did not produce any paper or licence and hence charges under Section 42 of the Indian Forest Act as well as under Section 5 (2) of the Bihar Forest Produce (Reg. of Trade) Act 1984 has been framed. The said recovery was made on 26. 12. 1990 and cognizance was taken on 04. 04. 1992. 4. The defence of the accused person that said Katha was legal and valid and Section 42 of the Indian Forest Act is not applicable and asserted that Bihar Forest Produce (Trade and Regulation) Act 1984 is special act and according to Section 2(8) of the said Act the quantity of retail sale has not been notified and so in absence of any notification specifying the quantity no licence is required. On the submission of the charges, five issues were framed; (1) whether katha was seized during transit; (2) whether seized katha requires transit permit; (3) whether provision of Bihar Forest Produce (Regulation of Trade) Act, 1984 is applicable; (4) whether Section 5 prohibits the purchase; and (5) whether Section 12 prohibits the sale of katha. 5. However, the prosecution has produced both oral and documentary evidence and after taking into consideration the oral and documentary evidence the trial 3 court while deciding Issue No. I to III held that since the katha was not transit and no transit permit was required and said katha was not seized during transit but seized in the shop and the accused was not guilty under Section 42 of the Indian Forest Act. 6. While deciding Issue No. IV and V the trial court held that the explanation I of Section 5 provides that purchase of Katha from Government agency is not an offence and since the purchase of said katha from Gopal Katha Industries hence the purchase of katha is not illegal and further held that since Section 2(8) provides that quantity of retail sale shall be fixed by notification but quantity of retail sale not fixed so Section 12 of the Bihar Forest Produce (Regulation & Trade) Act is not applicable. 7. Hence learned trial court acquitted the respondent on the ground that since there is no notification fixing the quantity of retail sale under Section 12 of the Bihar Forest Produce (Regulation & Trade) Act. 8. Learned counsel for the State however, challenged the order of acquittal on the ground that according to Section 12 (1) of the Bihar Forest Produce (Regulation of Trade) Act, 1984 “no person shall engage 4 himself in retail sale of a specified forest produce except under a licence granted under this Section”. Learned counsel for the State has further stated that there was violation of Section 5 and 12 of the Bihar Forest Produce (Regulation of Trade) Act, 1984 as katha has been recovered from the shop of the respondent. 9. However, it is admitted fact that katha has been recovered from the shop of the respondent and seizure list provides that said katha was purchased from Gopal Katha Industries, Gaya and seizure list also mentioned about 6 kg. katha belong to Gopal Katha Industries Pvt. Ltd. However, Katha was not caught during transit and there is no evidence that said katha was sold to any one. However, only Katha was recovered from the shop. However, Section 5 of the Bihar Forest Produce (Reg. of Trade) Act, 1984 having explanation 5(1) I of Section that “purchase of specified forest produce from the State Government or the aforesaid Government Officer or agent or a licensed vendor shall not be deemed to be a purchase in contravention of this Act”. Here, respondent claims to have purchased the said katha from Gopal Katha Industries Pvt. Ltd. Gaya, and seizure list mentioned about this fact 5 that said katha belong to Gopal Katha Industries Pvt. Ltd. and P.W. 5, S. A. Haque (Range Officer) has admitted that Gopal Katha Industries is under his area and is a katha manufacturer and hence purchase of katha from Gopal Industries is not an offence and moreover there is no evidence that the respondent sold the katha to any one and hence there is no sale of katha by respondent established and hence no contravention of the Act and hence there is no merit in this appeal. 10. Moreover having regard to the legal position and other facts and circumstances of the case that respondent was aged about 65 years old at the time of judgment in the year 1995 and even after notice, respondent had appeared and filed Vakalatnama, but no one appeared on behalf of the respondent at the time of hearing. However, Vakalatnama has been filed in the year 1996 itself, but no one appeared on behalf of respondent. The age of respondent was 65 years in the year 1995, hence he must have been aged more than 80 years. So far under Section 20 of the Bihar Forest Produce (Reg. and Trade) Act, 1984, provides “punishment as imprisonment which may extent to one year or fine which may extent to two 6 thousand rupees, or both if the person repeats the offence then punishment is double”. However, there is nothing on record to suggest that respondent was earlier engaged in such type of crime. 11. However, the offence is of year 1990 and order of acquittal recorded in 1995, against which the Government Appeal preferred, though, admitted in 1996, but no order calling lower court record warrants the calling of record when the appeal is not sustainable either in fact or law in the interest of justice. Hence, I do not find any merit in this appeal. Hence the appeal is accordingly dismissed. Patna High Court The 20th June, 2011 NAFR/m.p. (Gopal Prasad, J.)