Satish Chandra, J.
1. This is a petition under Article 226 of the Constitution. It prays that the notification passed by the State Government on 29th April, 1966 be quashed and the respondents be directed to release and restore to the petitioners the copies of the special issue forfeited under- that notification.
2. The petitioners are the trustees of Nida-e-Millat Trust which publishes, inter alia, a weekly Urdu Journal called Nida-e-Millat The trust had intended to publish a special issue of this Journal entitled as Muslim University Special on 6th August 1965. It was printed at the Tanvir Press. On the night of 31st July, 1965 the police raided the premises of the Tanvir Press as also the residence of Dr. Asif Qidwai, the editor of this Journal, and the premises of the office of this Journal at 99. Gwyne Road, Lucknow. The Editor, Printer, Publisher, the General Manager and Circulation Manager of this Journal were arrested and a large number of bound as well as unbound copies of this special issue were taken into custody. A large number of copies had already been posted. They were recovered from railway mail service at Lucknow. The arrested persons were in due course prosecuted under Rule 41 read with Rule 44 of the Defence of India Rules. On behalf of the respondents' it is stated that the representatives of the Journal and other persons made representations to the State Government for the withdrawal of the prosecution on various grounds. The Government decided to withdraw the case on humanitarian grounds. On 23rd April, 1966 the Public Prosecutor made an application before the City Magistrate Lucknow for permission to withdraw the prosecution. The Magistrate after considering the matter granted the permission. On 29th April, 1966 the State Government issued the impugned notification forfeiting the special issue of the Journal. The notification, states that the State Government is of the opinion that the Muslim University Special Number of the Journal was prejudicial report under Clauses (e), (g) and (h) of Sub-rule (6) of Rule 35, read with Sub-rule (7) of the Defence of India Rules. Consequently, it was being forfeited under Rule 45(1)(e) of the Defence of India Rules.
3. Mr. Asif Ansari, learned counsel for the petitioners, has challenged the validity of this notification on the grounds:--
(a) That the State Government did not at all apply its mind to the question whether the special number constituted a prejudicial report.
(b) That the special number did not in fact and in law constitute a prejudicial report, and
(c) That the forfeiture of the entire issue violated Section 44 of the Defence of India Act.
4. In respect of the first point the petitioners have alleged that in the course of the trial of the editor etc. of this journal it was indicated on behalf of the prosecution that certain passages occurring at pages 9, 11, 12, 13, 14, 18, 23, 29, 34, 70 and 71 of the special issue contained prejudicial reports, but the impugned notification forfeited the entire issue. This indicates that the State Government has not even applied its mind before exercising its powers under Rule 45. In the counter-affidavit it has been stated that the State Government did apply its mind. After serving (sic) due consideration it was of the opinion that the special number of the Weekly contained prejudicial report. It was also stated that it was not possible to separate the various articles which were published in the special issue and consequently the whole issue was declared forfeited. The counter-affidavit was filed by the Deputy Secretary in the Confidential Department of the State Government. A supplementary Counter Affidavit has been filed by Mr. R.K. Kaul, the Deputy Secretary in the Confidential Department of the State Government. There it was stated that he perused the issue and the objectionable passages and formed the opinion that these passages amounted to prejudicial reports. No rejoinder affidavit appears to have been filed by the Petitioner to the Supplementary Counter Affidavit. On this material it is difficult to hold that the State Government did not apply its mind to the relevant provisions or the materials, before issuing the impugned notification.
5. Mr. Ansari submitted that the passages considered by the State Government to be objectionable did not constitute prejudicial reports within the meaning of the relevant rules. The State Government can declare any document to be forfeited to the Government, if it is of the opinion that it contains any prejudicial report, under Clause (e) of Rule 45 of the Defence of India Rules, 1962. Learned counsel for the State Government urged that the question whether a document contains any prejudicial report has been left to the opinion of the State Government. It having been established that the State Government had formed the requisite opinion, it was not justiciable. The Court could hence not go into the the question whether the document did in fact contain any prejudicial report. For this submission reliance has been placed upon Godavari S. Paruleker v. State of Maharashtra : 1966CriLJ1067 . In that case Rule 30 of the Defence of India Rules was involved. Under Rule 30 the State Government could restrict the movement of suspected persons or detain them if it was satisfied that it was necessary to do so with a view to prevent that person from acting in any manner prejudicial to the Defence of India etc. The Supreme Court observed:--
'It has been consistently held by this Court that it is for the detaining authority to be satisfied whether on the material before it, it is necessary to detain a person under Rule 30 and that this question is not justiciable.'
Mr. Ansari sought to distinguish this case on the ground that in detention cases the material is not before the Court. The court is hence unable to consider the material which the State Government had taken into account for reaching the requisite satisfaction, but in the instant case the forfeited document which contained the objectionable passages was before the Court. The Court is in a position to examine the passages and see whether they answer the definition of the prejudicial report as contained in Rule 35 of the Defence of India Rules. In myopinion, the view taken by the Supreme Court that the satisfaction of the State Government under Rule 30 was not a justiciable issue, did not rest upon the non-availability of the material which has been considered by the State Government. The decision was based upon the language of Rule 30, the relevant part of which conferred the power to take action upon the satisfaction of the State Government Since the matter was left to the subjective satisfaction of the State Government, the Court ruled that it was not justiciable. If the Court had been of the opinion that the matter was justiciable, there would have been no difficulty in calling for the material upon which the State Government had acted. This is all the more clear from the Supreme Court decision in Jute and Gunny Brokers Ltd. v. Union of India : 3SCR820 . In that case an order of requisition under Rule 75-A was involved. Under that rule the Government could requisition the property if it was of the opinion that it was expedient to do so for maintaining supplies and essential services. The Supreme Court held that the opinion of the Central Government was final and was not justiciable, except in the case of mala fides. It is hence incorrect that the non-justiciability of the opinion or the satisfaction of the Government has been confined to detention cases alone. Rule 45 uses the phrase 'where in the opinion of the State Government'. Thus the exercise of the power is dependent upon the subjective opinion of the Government. It is not justiciable. The Court hence cannot test the; validity of the State Government's opinion. The Court cannot adjudicate the matter. It cannot consider the forfeited document with a view to see whether it answered the definition of a prejudicial, report as given in the Defence of India Rules.
6. Mr. Ansari invited my attention to the case of Niharendu Dutt Majumdar v. Emperor, AIR 1942 FC 22 and the decision of the Privy Council in Emperor v. Sadashiv Narayan, AIR 1947 PC 82. Both these cases are distinguishable. In these cases the State launched a prosecution for making, printing or publishing a document containing any prejudicial report under Clause (5) of Rule 38 of the Defence of India Rules, 1939. Under that clause a person contravening any of the provisions of Rule 38 was punishable with imprisonment for a term which may extend to five years or with both. Rule 38 stated:
'38(i) No person shall, without lawful authority or excuse .......
(c) make, print, publish or distribute any document containing, or spread byany other means whatsoever, any prejudicial report.'
It will be seen that in Rule 38 the liability for punishment was dependent upon contravention of the provisions of that rule. The rule nowhere provided that the liability was dependent upon the opinion or the satisfaction of the relevant government. If a person was prosecuted for contravention of Rule 38, the presecution had to establish the violation as a fact in a court of law. The Court was hence entitled to consider the materials and find whether the contravention has been proved. Rule 38 of the Defence of India Rules, 1939, corresponds to Rule 41 of the Defence of India Rules, 1962. If any one had been prosecuted under Rule 41, it would have been open to the Court to Judge whether the document contained any prejudicial report, but the same situation does not arise when an action under Clause (e) of rule 45 forfeiting a document containing any prejudicial report is taken, because such action is dependent upon the opinion of the Government which is not justiciable.
7. In this connection it was also urged that the order of forfeiture was mala fide, because it was motivated by political interests. The allegation in the petition is vague. No details have been mentioned. It has not been stated what was the political interest which motivated the State Government. In the counter-affidavit the allegation has been denied. It has been stated there that the order was not made because of any pressure of any political interest or with any mala fide intentions. It was made according to the provisions of Rule 45. On the materials on record the petitioner has failed to establish the ground of mala fide.
8. The last point urged by Sri Ansari was that forfeiture of the entire issue violated Section 44 of the Defence of India Act. This provision says that any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with purpose of ensuring the public safety and interest and the defence of India and civil defence. It was urged that the State Government could have used printer's ink to deface the objectionable passages in the issue instead of forfeiting the entire issue. By forfeiting the entire issue the respondents have interfered with the petitioner's enjoyment of property far in excess of the purpose of ensuring the public safety and interest. In counter-affidavit it has ' been stated that it was not possible to separate the various articles which contained prejudicial reports and accordingly the special number was declared forfeited as a whole.
9. For the respondents it was urged that the State Government prosecuted the Editor, Manager etc. of the Journal for having published the prejudicial report under rule 41, but they, after considering the representations made and the various involved factors, came to the conclusion that the forfeiture of the issue would be sufficient. Consequently they withdrew the prosecution. In my opinion the submission for the State is sound. Under the circumstances it cannot be urged that the authorities did not act with sense of the ordinary responsibility or with due care and caution and interfered with the ordinary avocations of life and the enjoyment of the property of the petitioners more than what was consonant with the purpose of ensuring the public safety and interest. The impugned notification does not, in my opinion, violate Section 44 of the Defence of India Act.
10. In the result, the petition fails and is dismissed with costs.