Jas Raj Chopra, J.
1. This appeal is directed against the judgment of learned Addl. Munsif and Judicial Magistrate, Udaipur dated January 2, 1978 whereby the learned lower court has acquitted accused Kishan Lal of the offence Under Section 353 IPC.
2. The facts of this case briefly stated are: that the Forest Ranger Shri Gobind Singh found that the forest produce is being illegally brought into Udaipur City and, therefore, for the purpose of checking . he constituted two Checking Parties consisting of Bheru Singh, Laxman, Sohan Lal Sankhla, Om Prakash, Bhana and Govind Singh for the night checking and Inder Singh, Sohan Singh, Devi Singh, Laxmi Lal, Bhawani Singh, Madan Lal and Faiz Mohammed for the day checking vide Order (Ex. 10) dated April 21, 1975. It is alleged that the Checking Party headed by Shri Inder Singh proceeded for the checking of the forest produce at village Tiddi in the morning of July 26, 1975 at about 6 a.m. This checking Party went to the house of Shri Kishan Lal because it was brought to their notice that he was illegally indulging himself in the trade of forest produce and about 30 to 40 maunds of charcoal were lying at his house. As soon as the Checking Party reached his house in Truck No. RJY 1906, they found 17 bags of Charcoal lying in the Verandah. Inder Singh went inside the house and tried to seize this property, where upon, accused respondent Kishanlal who was present at his residence came out of his house, brought out a sword and told the Checking Party that either they leave his house or else he will cut them into pieces. When Inder Singh tried to prepare the seizure memo, accused respondent Kishan Lal pushed him aside. Fearing some untoward incident, Inder Singh retreated and thereby, these forest officials were prevented from performing their duties as Public Servants. Thereafter, the Checking Party immediately went to the Police Station, Nai, where the F.I. Ex. P. 13 was lodged. The Police inspected the site and the site inspection memo has been marked Ex. P. 8. The Office Orders issued in this respect by Shri Gobind Singh and Shri Nand Singh have been taken into possession which have been marked Ex. Ps. 10 to 12. Certain appointment and Transfer Orders were also taken into possession and they have been marked Ex. Ps. 1 to 5. After usual investigation, the accused was challaned in the learned lower court for the offence Under Section 353 IPC.
3. When the substance of the allegation was read over to the accused respondent, he did not plead guilty to the allegation and, therefore, the prosecution examined as many as 7 witnesses in support of its case. The statement of the accused was taken Under Section 313 Cr.PC. He led no defence. After hearing the parties, the learned lower court held that this checking party was constituted for the checking of illegal entry of forest produce in Udaipur City and it had no right to proceed to village Tiddi which was situated 30 miles away from Udaipur. It further held that the Checking Party did not obtain any search warrant and, therefore, the accused had a right to resist the attempt of the Checking Party to enter in his house and to seize the property which belonged to him. According to the learned lower court, the Checking Party should have reported the matter to the Police for taking necessary action and it should not have directly proceeded to the house of accused Kishan Lal to confiscate 17 bags of Charcoal. Under these circumstances, the learned lower court acquitted the accused respondent Kishan Lal of the offence Under Section 353 IPC.
4. I have heard Mr. M.C. Bhati, learned Public Prosecutor for the State and Mr. G.S. Mehta, learned Counsel for the accused respondent. I have carefully gone through the record of the case.
5. The facts of the case are not in dispute. A party of the forest officials headed by Inder Singh went for checking of illegal trade in forest produce at village Tiddi on July 26, 1975 at about 6 a.m. They have also gone to the house of accused-respondent Kishanlal. Indersingh tried to consficate the property and this attempt was resisted by accused Kishanlal. The only dispute raised before me is about the legality of the seizure.
6. Sub-section (4) of Section 2 of the Rajasthan Forest Act, 1953 (here in after referred to as 'the Act') defines 'forest produce' and that includes Charcoal. Sub-section (3) of Section 2 of the Act defines 'forest offence', which means an offence punishable under this Act or under any rule made thereunder. Section 52 of the Act provides that when there is reason to believe that a forest offence has been committed in respect of any forest produce, such produce together with all tools, boats, carts, trucks or any other vehicle or cattle used in committing any such offence may be seized by any Forest Officer or Police Officer not below the rank of a Head Constable. Section 55 of the Act deals with consfication of the forest produce and it lays down that all timber or forest produce which is not the property of the State Government and in respect of which a forest offence has been committed and all tools boats, carts, trucks and cattle used in committing any forest offence shall be liable to confiscation and such a confiscation may be in addition to any other punishment prescribed for such offence. It is, therefore, clear that even if the forest produce is not the property of the State Government, still it is liable to confiscation in respect of which it is alleged that a forest offence has been committed. Section 69 of the Act provides that when in any proceedings taken under this Act, or in consequence of anything done under this Act a question arises as to whether any forest produce is the property of the State Government, such produce shall be presumed to be the property of the State Government until the contrary is proved.
7. In this case, the Checking Party actually believed that the accused respondent Kishanlal was indulging in illegal trade of the forest produce by steeling Charcoal bags from the Forest Department and, therefore, the Checking Party wanted to confiscate this property. Charcoal being a forest produce a presumption arises that this property belonged to the State Government and the contrary was to be proved by the accused and, therefore, the forest officers could have confiscated this property without a warrant and they had a right to enter into the house of accused Kishanlal to confiscate this property.
8. Now the sole question remains to be determined is whether Inder Singh and his companions can be categorised as 'Forest Officers' as defined in Sub-section (2) of Section 2 of the Act. According to Sub-section (2) of Section (2) of the Act, 'Forest Officer' means any person whom the State Government or any officer empowered by the State Government in this behalf may appoint to carry out all or any of the purposes of this Act or to do anything required by this Act or any rule made thereunder to be done by a Forest Officer. Certain notifications have been issued Under Section 76 read with Section 2(2) of the Act which relate to the appointment of certain officers by the Government as Forest Officers for the purpose of Sections 17, 21, 25, 26(1)(c), 26(2) and 31 of the Act. The other notification is No. F. 2(20)Rev. /8/79 dated May 6, 1983. It actually relates to offences involving transport of forest produce by head loads, animal loads, cycle loads, bullock carts, any other animal driven vehicle and by mechanically driven vehicles. In none of these notifications, the Forester and Forest Guards have been appointed either by the State Government or any Officer authorised by the State Government in this behalf to work as forest officers and thus, Indersingh and his companions had no right to enter into the house of accused Kishanlal and to seize the forest produce because they cannot be termed as forest officers as defined in Sub-section (2) of Section 2 of the Act. When they were not authorised officers, their attempt to seize the property which was lying in the house of accused Kishanlal was unauthorised and so, the accused-respondent Kishanlal was within his right to resist such an attempt and even to use force to oust these persons from his house who came to seize certain property without any search warrant from any comptent court. Under these circumstances, although for different reasons stated by me above I agree with the conclusion arrived at by the learned lower court that the accused respondent Kishan Lal cannot be held guilty of the offence Under Section 353 IPC.
9. In the resuit, the appeal filed by the State fails and is hereby dismissed.