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Virendra Bandhu Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCriminal Misc. Petn. No. 132 of 1977
Judge
Reported inAIR1980Raj241
ActsCode of Criminal Procedure (CrPC) , 1974 - Sections 95, 95A and 96; Indian Penal Code (IPC) - Sections 124A, 153A, 153B, 292 and 295A; Code of Criminal Procedure (CrPC) , 1988 - Sections 99A; Constitution of India - Article 19(1)
AppellantVirendra Bandhu
RespondentState of Rajasthan
Appellant AdvocateParty in person
Respondent Advocate H.I. Khan, Public Prosecutor
DispositionApplication allowed
Cases ReferredIn Gopal Vinayak Godse v. Union of India
Excerpt:
- - 3. the respondent, state of rajasthan, has not filed any reply and the learned public prosecutor, who appeared for the state, has submitted that the booklet 'kranti kiyon aur kaise',written by the petitioner, contains seditious matters and is likely to promote or incite the feelings of enmity and hatred between different classes of citizens of india and as such the order dated july 26, 1975 forfeiting the aforesaid booklet under sub-section (1) of section 95 of the code was passed bona fide and the said order is perfectly valid and in accordance with the provisions of law. ii of 1974) there is no section like 'section 95a' and a bare reading of the impugned notification clearly shows that none of the offences mentioned in section 95 of the code have been referred to in in the said.....dwarka prasad, j.1. this is an application under section 96 of the cr.p.c., 1973 (hereinafter referred to as 'the code'), challenging the validity of the notification no. f-17 (38) home 'xiv'/70 dated july 26, 1'975 issued by the state government of rajasthan and published in the rajasthan rajpatra, extraordinary dated july 26, 1975, forfeiting the booklet entitled 'kranti kiyon aur raise' and every copy thereof, purporting to exercise the powers conferred upon it by sub-section (1) of section 95 of the code.2. the case of the petitioner in short is that he is a practising advocate at jaipur since feb., 1963 and was also general secretary of the civil liberties union, rajasthan and that he wrote a booklet entitled 'kranti kiyon aur kaise' in the year 1968, which was ordered to be.....
Judgment:

Dwarka Prasad, J.

1. This is an application under Section 96 of the Cr.P.C., 1973 (hereinafter referred to as 'the Code'), challenging the validity of the notification No. F-17 (38) Home 'XIV'/70 dated July 26, 1'975 issued by the State Government of Rajasthan and published in the Rajasthan Rajpatra, Extraordinary dated July 26, 1975, forfeiting the booklet entitled 'Kranti Kiyon Aur Raise' and every copy thereof, purporting to exercise the powers conferred upon it by Sub-section (1) of Section 95 of the Code.

2. The case of the petitioner in short is that he is a practising advocate at Jaipur since Feb., 1963 and was also General Secretary of the Civil Liberties Union, Rajasthan and that he wrote a booklet entitled 'Kranti Kiyon Aur Kaise' in the year 1968, which was ordered to be forfeited by the State Government by its order dated July 26, 1975. According to the petitioner, he was arrested on July 4, 1975 and was kept in detention under the provisions of the Maintenance of Internal Security Act, and in his view the forfeiture of the aforesaid booklet was a mala fide attempt to justify the petitioner's detention. The petitioner has asserted that the booklet in question does not contain any seditious or objectionable matter nor there is anything in the aforesaid booklet which may tend to incite the feelings of enmity and hatred between different classes of citizens of India and that is why the same was not forfeited for such a long time, although it was written and published in the year 1968. The petitioner has challenged the validity of the order passed by the State Government on July 26, 1975 not only on the ground that it was incorrect and mala fide but also on the ground that the order of forfeiture was unlawful and untenable in law as it was passed in a mechanical manner without application of mind and without giving any reasons or grounds for the opinion alleged to have been held by the State Government, which led to the forfeiture of the booklet in question.

3. The respondent, State of Rajasthan, has not filed any reply and the learned Public Prosecutor, who appeared for the State, has submitted that the booklet 'Kranti Kiyon Aur Kaise', written by the petitioner, contains seditious matters and is likely to promote or incite the feelings of enmity and hatred between different classes of citizens of India and as such the order dated July 26, 1975 forfeiting the aforesaid booklet under Sub-section (1) of Section 95 of the Code was passed bona fide and the said order is perfectly valid and in accordance with the provisions of law.

4. Thus, the entire controversy in the case relates to the validity of the order passed by the State Government on July 26, 1975, purporting to exercise the powers conferred upon it under Sub-section (1) of Section 95A of the Code, forfeiting the booklet, 'Kranti Kiyon Aur Kaise' admittedly written by the petitioner and published by Jan prakashan Samiti, Jaipur and every copy thereof. The aforesaid notification dated 26th July, 1975 reads as under;--

'HOME 'XIV' DEPARTMENT

NOTIFICATION

JAIPUR, JULY 26, 1975.

Order 80. Whereas it appears to the State Government that the Booklet entitled 'Kranti Kiyon Aur Kaise' as published by Jan Prakashan Samiti, Jaipur and printed by Azad Sandesh, Jaipur contains seditious matter which promotes and is intended to incite feelings of enmity and hatred between different classes of citizens of India.

Now, therefore, in exercise of all the powers conferred by Sub-section (1) of Section 95A of the Cr.P.C, 1973 (Act No. II of 1974), the State Government hereby declares every copy of the issue of the said booklet and every copy or any other document containing copy, reproduction or extract thereof to be forfeited to the Government.

(No. F.17 (38) Home/XIV/70)

By Order of the Governor

Sd/- Ramsingh,

Commissioner for Home Affairs

& Secretary to Government.'

5. It may be pertinently pointed out here that under the Cr.P.C., 1973 (Act No. II of 1974) there is no Section like 'Section 95A' and a bare reading of the impugned notification clearly shows that none of the offences mentioned in Section 95 of the Code have been referred to in in the said notification. But the words 'seditious matters' and 'which promotes and is intended to incite feelings of enmity and hatred between different classes of citizens of India' have been mechanically repeated in the impugned notification from the provisions of Section 99A of the Cr.P.C. 1898 (hereinafter referred to as the 'old Code'), which stood repealed with effect from April 1, 1974, after the coming into force of the Cr. P. C. 1973. A perusal of the impugned notification also reveals that it suffers from another infirmity and it appears that it has not even faithfully reproduced the provisions of Sub-section (1) of Section 99A of the old Code. According to the impugned notification the booklet in question contains 'seditious matters which promotes and is intended to incite feelings of enmity and hatred between different classes of citizens of India', while the provisions of Section 99A of the old Code comprehended two different categories of cases. The publication of seditious matter is punishable under Section 124A of the I.P.C. and the publication of a matter which promotes or is intended to incite feelings of enmity and hatred between different classes of citizens of India may constitute an offence under Section 153A of the I.P.C. We may observe that as it appears to us the impugned notification is a mechanical but careless repetition of the provisions of Section 99A of the old Code, inasmuch as the word 'or' which occurs in Section 99A between the words 'seditious matters' and 'which promotes......... citizens of India' appears to have been carelessly omitted in the impugned notification. However, as the main attack of the petitioner against the impugned notification is directed on the basis that the impugned notification does not state the grounds for the opinion said to have been entertained by the State Government, which were essential for the validity of the said notification and as such it would be proper to test the validity of the impugned notification with respect to the provisions of Section 95 of the Code, which are pari materia with the provisions of Section 99A of the old Code.

6. One of the principal contentions raised by the petitioner is that the impugned notification dated July 26, 1975, forfeiting the booklet 'Kranti Kiyon Aur Kaise' written by him does not fulfil the requirements of the provisions of Section 95 of the Code as it does not contain a statement of the grounds for the opinion of the State Government that the booklet contains any such matter, on account of which it may be liable to be forfeited-It would be proper to reproduce the provisions of Section 95 of the Code, which are as under:--

'95. Power to declare certain publications forfeited and to issue search warrants for the same:

(1) Where--

(a) any newspaper, or book, or

(b) any document,

wherever printed, appears to the State Government to contain any matter the publication of which is punishable under Section 124A or Section 153A or Section 153B or Section 292 or Section 293 or Section 295A of the I.P.C. (45 of I860), the State Government may, by notification, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of the issue of such book or other document to be forfeited to Government, and thereupon any police officer may seize the same wherever found in India and any Magistrate may by warrant authorise any police officer not below the rank of Sub-Inspector to enter upon and search for the same in any premises where any copy of such issue or any such book or other document may be or may be reasonably suspected to be,

(2) In this section and in Section 96.

(a) 'newspaper' and 'book' have the same meaning as in the Press and Registration of Books Act, 1867 (25 of 1867).

(b) 'document' includes any painting, drawing or photograph, or other visible representation.

(3) No order passed or action taken under this section shall be called in question in any Court otherwise than in accordance with the provisions of Section 96.'

7. Now, a careful reading of the provisions of Section 95 of the Code goes to show that three essential tests must be satisfied by a notification issued in pursuance of the powers conferred upon the State Government by Section 95 in order to make the same valid in law:--

1. the newspaper, book or document should contain any matter which may be of such a nature, the publication of which is punishable under Sections 124A, 153A, 153B, 292A or 295A, I.P.C.

2. the State Government should form a definite opinion that the newspaper, book or document, concerning which the notification was issued, contains any matter referred to in (1) above.

3. the notification must also contain the grounds for the opinion of the State Government in that respect.

4. The State Government should, by notification, in the Official Gazette, declare that every copy of such newspaper, book or document shall be forfeited to the State Government.

8. Each of the aforesaid tests, including the one to state the grounds in the notification, is mandatory and mere repetition of the words of Section 95 would not be enough to satisfy the requirements of a valid order. If the grounds, on the basis of which the State Government held the opinion expressed by it in the impugned notification, have not been stated in that notification, then such notification cannot be held to be valid. It has to be remembered that an order passed under Section 95 of the Code, forfeiting a newspaper, book or other document, must be in accordance with law, so as to be immune from attack on the ground that it violates the fundamental rights guaranteed, under Article 19(1)(a) and (g) of the Constitution. It is apparent that the notification, which we have reproduced in extenso above, does not contain any reasonal or grounds on the basis of which the State Government held the opinion that the booklet in question contains seditious matter or any other matter which may promote and may tend to incite feelings of enmity and hatred between different classes of citizens of India,

9. It was argued by the learned Public Prosecutor that even if the notification did not disclose any ground of which the opinion of the State Government was based and which led to the forfeiture of the booklet in question, this Court, while hearing an application under Section 96 of the Code, would not be entitled to set aside the order of forfeiture unless it is satisfied that the booklet in question did not contain any such matter as is referred to in Section 95(1) of the Code and reliance was placed for this submission upon a decision of a Special Bench of this Court in Premi Khem Raj Sharma v. Chief Secretary, AIR 1951 Raj 113. In that case the Special Bench held that the order issued by the State Government was defective inasmuch as it did not contain reasons for proscribing the book in question under Section 99A of the old Code and did not specify the grounds for the opinion of the Government, as required by Section 99A of the old Code, yet the High Court could set aside the order of proscription or forfeiture only if it was satisfied that the newspaper, book or other document, in respect of which an application under Section 99A was made, did not contain any seditious matter or other matter of such a nature as was referred to in Sub-section (1) of Section 99A of the old Code. As such it was held in the aforesaid case (AIR 1951 Raj 113) that this court could not set aside the order of forfeiture of the book on account of the absence of the grounds for the opinion of the State Government in the impugned order and followed the decision of the Allahabad High Court in Baijnath Kedia v. Emperor, AIR 1925 All 195 (FB).

10. However, this question now stands concluded by the decision of their Lordships of the Supreme Court in Harnam Das v. State of U.P., AIR 1961 SC 1662, wherein their Lordships held that they were unable to accept the construction placed upon Section 99D of the old Code by the Allahabad High Court in Baijnath's case or by this Court in Premi Khem Raj's case. The following observations made by their Lordships of the Supreme Court in Harnam Das's case may be pertinently referred to in this context:--

'The High Court (in Baijnath's case) was of the view that its duty under Section 99-D was only to see 'whether in fact the document comes within the mischief of the offence charged'. It thought that a document would be within the mischief of the offence charged if, in its own opinion it contained matters the publication of which would be punishable under either Section 124A, or Section 153A or Section 295A of the Penal Code as mentioned in the order of forfeiture, irrespective of the Government's opinion on the matter otherwise, it seems to us, the High Court could not uphold the order for the reason that in its view the books offended the Sikhs and the Sikh religion in spite of the fact that there is nothing to show that the Government thought that the books had that effect. The same view appears to have been taken in certain other cases namely, Premi Khem Raj v. Chief Secretary, AIR 1951 Raj 113 (FB); N. Veerabrahmam v. State of Andhra Pradesh AIR 1959 Andh Pra 572 (SB) and Khalil Ahamed v. State of U. P., AIR 1960 All 715 (SB). Apparently it was thought in these cases that the words 'if it is not satisfied that......... the book............ contained seditious or other matter of such a nature as is referred to in Sub- section (1) of Section 99A' in Section 99-D meant, not so satisfied for any reason whatsoever, irrespective of the reasons on which the Government formed its opinion about it. We are unable to accept this construction of Section 99-D.'

11. Thus, in Harnamdas's case, their Lordships of the Supreme Court held that Section 99-D of the old Code did not restrict the duty of the High Court, while deciding an application moved under that section to see only whether in fact the newspaper, book or document came within the mischief of the offence charged, but the High Court was also competent to see as to whether for the grounds on which the order of forfeiture was passed i.e. the reasons stated by the Government, it could be held that the publication of such newspaper, book or document constituted an offence punishable under one or more of Sections 124A, 153A and 295A of the I.P.C. specified by it.

12. If the petitioner alleges that the order passed by the State Government was improper, then it will have to be seen and decided by the High Court as to whether the order was proper or improper, which would naturally depend not only on the merits of the grounds on which it is based, but also if the grounds on which it is said to have been made do not support it. Therefore, if the grounds stated by the State Government in the order, on which its opinion was based, do not support the order, then also such an order would be bad in law and would be liable to be set aside by this Court.

13. In this view of the matter, the High Court is not called upon to consider whether in fact the book or document comes within the mischief of the offences mentioned in Section 96(1) of the Code unless the grounds on which the satisfaction of the Government is based are specified in the notification. However, on an application made under Section 96 of the Code, this Court is required to decide as to whether the grounds stated by the State Government for its opinion that the newspaper, book or document contained seditious or other matter of such a nature as has been referred to in Section 95, Cr.P.C. are well founded or not. An order can be passed under Section 95 of the Code only when certain pre-requisites are satisfied and the Government has formed a definite opinion on the basis thereof. Section 95(1) of the Code further requires the Government to state the grounds for its opinion in the notification issued under that section. The reason why the Government is required to state the grounds for its opinion in the notification is not far to seek because when an application is moved under Section 96 of the Code, the grounds so given by the State Government for its opinion will have to be scrutinised by this Court to arrive at the conclusion as to whether they are relevant and valid so as to justify the issuance of the order of forfeiture. If the High Court is not satisfied with the propriety of the grounds given by the State Government for basing its opinion, then it would set aside the order of forfeiture. Thus, giving of reasons or grounds for the opinion of the Government is necessary to enable the High Court to decide the application made to it under Section 96 of the Code. The order passed under Section 95 of the Code must be passed by the Government and the grounds for the opinion of the Government on which such order is based should constitute an essential part thereof and such grounds or reasons for passing the order under Section 95 of the Code must be given by the Government itself. It is not for the High Court to substitute its own grounds for holding that the newspaper, book or document in question infringes any of the provisions of the Indian Penal Code specified in Section 95(1) of the Cr. P.C. If the State Government has given some grounds for its opinion on the basis of which the order of forfeiture is said to have been passed and this Court on a consideration thereof, on an application made to it under Section 96 of the Code is not satisfied with the validity of the grounds, stated by the Government in the notification, then it would not be open to the High Court to uphold the order of forfeiture on the basis of other grounds which may appear to this Court to be proper. In such an event, if the High Court upholds the order passed by the Government, then in substance it would be an order of forfeiture made by this Court and not by the Government, since the State Government, while stating the grounds for its opinion in the notification, did not say what the High Court might have thought proper and what the State Government has stated in the notification as the grounds on which its opinion was based does find favour with the High Court.

14. We, therefore, hold that this Court is competent to set aside the order of forfeiture passed by the State Government under Section 95 Cr.P.C. while deciding an application made to it under Section 96 of the Code, if it is satisfied that the grounds on which the State Government has formed its opinion in fact did not justify such opinion that the publication of the newspaper, book or document was punishable under any one of the sections of the I.P.C. referred to in Section 95(1) of the Code. Consequently, it is not the duty of this Court to find out for itself, whether the newspaper, book or document contains such matter which is punishable under any of the sections mentioned in Section 95(1) of the Code, and if the State Government altogether omits to state the grounds for its opinion the same reasoning would apply and it is not for this court to supply the grounds or to find out itself whether the newspaper, book or document contains any matter the publication of which is punishable under Section 124A, Sections 153A, 153B, 292 or 295A of the I.P.C.

15. In Harnamdas's case (AIR 1961 SC 1662), their Lordships of the Supreme Court while dealing with the question of failure of the State Government to state the grounds of its opinion laid down the law on the subject as under:--

'What then is to happen when the Government did not state the grounds of its opinion? In such a case if the High Court upheld the order, it may be that it would have done so for reasons which the Government did not have in contemplation at all. If the High Court did that, it would really have made an order of forfeiture itself and not upheld such an order made by the Government. This, as already stated, the High Court has no power to do under Section 99D. It seems clear to us, therefore, that in such a case the High Court must set aside the order under Section 99-D, for it cannot then be satisfied that the grounds given by the Government justified the order. You cannot be satisfied about a thing which you do not know. This is the view that was taken in Arun Ranjan Ghose v. State of West Bengal, (1955) 59 Cal WN 495 and we are in complete agreement with it.' In Lalai Singh Yadav v. State of U. P., 1971 Cri LJ 1519 a Special Bench of the Allahabad High Court observed, following the decision of their Lordships of the Supreme Court in Harnam Das's case that the order of forfeiture must contain two things, namely;

'(i) That the Government had formed the opinion that the concerning document contains any matter the publication of which is punishable under Section 124A or Section 153A or Section 295A of the Penal Code, (ii) That the Government must state in the order the grounds which had led to the formation of the opinion.' And if either of the aforesaid two conditions is not complied with, the High Court must set aside the order of forfeiture. It was observed in that case that the State Government was required to state the grounds for its opinion on which the order was based and it must mention the particulars, facts, reasons and circumstances upon which the State Government came to form the opinion relating to the forfeiture of the book or document. The decision of the Allahabad High Court in the above mentioned case was affirmed by their Lordships of the Supreme Court in State of U.P. v. Lalai Singh Yadav, AIR 1977 SC 202, wherein Krishna Iyer, J, speaking for the court observed as under:--'A drastic restriction on the right of a citizen when imposed by statute, calls for a strict construction, especially when quasi penal consequences also ensue. The imperial authors of the Criminal Procedure Code have drawn up Section 99A with concern for the subject and cautionary mandates to Government. The power can be exercised only in the manner and according to the procedure laid down by the law. Explicitly the section compels the Government to look at the matter which calls for action to consider it as to the clear and present danger it constitutes in the shape of promoting feelings of enmity and hatred between different segments of citizens or as to its strong tendency or intendment to outrage the religious feelings of such segments (there are other proclivities also stated in the section with which we are not concerned for the present purpose) and quite importantly, to state the grounds of its opinion. We are concerned with the last ingredient, When the section says that you must state the grounds, it is no answer to say that they need not be stated because they are implied. You do not state a thing when you are expressively silent about it. To state is 'to declare or to set forth, especially in a precise, formal or authoritative manner, to say (something), especially in an emphatic way; to assert' (Random House Dictionary). The conclusion is inescapable that a formal authoritative setting forth of the grounds is statutorily mandatory. If you laze and omit, the law visits the order with voidness and this the State Government must realize especially be cause forfeiture of a book for a penal offence is a serious matter, not a routine act to be executed with unconcern oar indifference,' (emphasia added)

In Chinna Annamalai v. State of Tamil Nadu, AIR 1971 Mad 448 (FB), the Madras High Court expressed similar view and observed as under:--

'The existence of a matter may be the subject-matter for the formation of certain opinion, but the matter cannot be confused with the opinion itself or with the grounds which influenced that opinion. The Government after having set out the matter contained in the poster, and while stating its opinion about the matter in the order, it should have also stated as to how, why and in what manner and between which groups the feelings of enmity or hatred the printing and publication of the said poster had promoted or attempted to promote. No such grounds are stated in the order. We are, therefore, of the view that the impugned order does not state the grounds for the opinion it has formed, it has to be quashed on this ground alone.'

In Mahomed Khalid v. Chief Commr., Delhi, AIR 1968 Delhi 13 (SB), a similar situation arose and it was argued before the Delhi High Court that the notification forfeiting the book did not give any grounds on account of which the Chief Commissioner formed the opinion that the book was deliberately and maliciously intended to outrage the religious feelings of any class by insulting the religion or the religious beliefs of that class: it was held by Delhi High Court that while issuing a notification under Section 99A of the old Code, the Government have to state the grounds of its opinion and if the notification issued by the Chief Commissioner did not state the grounds for its opinion, the High Court would not itself go into the matter and find out, by referring to the different passages in the book, as to whether they contravene Section 153A of the I.P.C.

16. In the aforesaid cases, it was held by their Lordships that the High Court while deciding an application made to it under Section 99-C of the old Code could not make a roving enquiry beyond the grounds set forth in the impugned order and if the grounds are altogether missing in the notification then there would be nothing which this Court would be required to examine. When an application is made to this Court under Section 96, Cr.P.C. then it is called upon to enquire into the validity of the grounds given by the Government for basing its opinion that the newspaper, book or document contains any matter the publication of which is punishable under any one of the sections specified in Section 95(1) Of the Code and if no grounds or reasons are given by the State Government, while passing the order of forfeiture of the newspaper, book or document under Section 95 (1) of the Code, then the High Court is not at all called upon to consider upon merits as to whether the book or document contains any matter punishable under one or more sections of the Indian Penal Code which have been mentioned in Section 95 (1) of the Code and to advance Its own reasons or grounds for its opinion in that matter. But the High Court in such a case, where no grounds are given by the State Government in the impugned notification for basing its opinion under Section 95(1) of the Code would have to declare the order as void, as it fails to fulfil the mandatory requirements of Section 95(1) of the Code, one of which is that the Government must state the grounds for its opinion. It may not be necessary for the State Government to mention the grounds at great length but it may state them concisely and precisely and as observed by their Lordships of the Supreme Court in Lalai Singh's case (AIR 1977 SC 202) even in some case a laconic statement may be enough. However, total absence of grounds for the opinion of the Government in the order of forfeiture would render such an order invalid and void.

17. When it has been specifically made obligatory by the Legislature that the Government should mention the grounds or reasons which led it to form the opinion expressed by it in the notification, relating to the forfeiture of the newspaper, book or document, the reason for such obligation is apparent as the grounds given in the order may be subjected to judicial scrutiny by the court, on an application made to it under Section 96 of the Code. In the case before us, the State Government has merely given its opinion but it has totally failed to state the grounds for its opinion. It was the duty of the State Government to indicate its to which of the words, phrases, paragraphs or pages in the booklet contain any matter, the publication of which was an offence specified in Sub-section (1) of Section 95 of the Code. aS we have already observed above, the impugned order purports merely to reproduce mechanically the phraseology occurring in Sub-section (1) of Section 99-A of the old Code, which stood repealed much before the impugned order was parsed and even the reproduction of the words of Section 99-A of the old Code is not without a fault. It is pertinent to observe that the impugned notification does not contain any schedule or appendix nor it incorporates in itself any indication as to which portion of the booklet contains any offensive matter and how and why the same, in the opinion of the State Government is of such a nature that the publication thereof would constitute an offence specified in Section 95(1) of the Code.

18. In the aforesaid circumstances, how can we import into the impugned notification grounds which are non-existent? Moreover, if we were to supply any grounds or reasons now for holding that the booklet contains any seditious matter or other matter the publication of which is punishable under any one of the sections enumerated in Section 95(1) of the Code, then such grounds or reasons shall be the grounds and reasons for our opinion, and not the grounds or reasons for which the State Government held its opinion. How can we visualise the grounds which led the State Government to form its opinion when the State Government has not at all disclosed as to what were the grounds in its mind while it came to form the opinion that the booklet contains seditious or other matter which may be punishable under Section 153A of the I.P.C.?

19. In Gopal Vinayak Godse v. Union of India, AIR 1971 Bom 56 (SB) Chandrachud, J. (as he then was, now Chief Justice of India), while upholding the validity of the provisions of Sections 99-A and 99-B of the old Code held that they imposed reasonable restrictions in respect of fundamental rights enshrined in Article 19(1)(a)(f) and (g) of the Constitution and observed that adequate safeguards, including the right of judicial review, have been provided by the legislature to prevent the executive authority from exercising its discretionary power arbitrarily. It was also observed in the aforesaid case that the High Court can make an enquiry whether a charge in a criminal court can be sustained on the data disclosed in the order of forfeiture, In the case before the Bombay High Court, the notification issued under Section 99-A of the old Code contained a schedule in which references were made to the objectionable passages of the book, and on that account their Lordships were able to consider as to whether the impugned order was justified on merits, by ascertaining whether the offending passages read in the context of the book as a whole fell within the mischief of Section 153A of the I.P.C. But in the case before us there is no material or data mentioned in the impugned notification or even annexed thereto specifying the reasons or grounds on which the said order of forfeiture passed by the State Government is based so as to disclose how the mind of the State Government worked and reacted. In these circumstances, we are of the view that the mandatory requirement of Section 95 (1) of the Code has not been fulfilled and in the absence thereof, this Court is unable to scrutinize as to whether the opinion of the State Government contained in the impugned order was based upon valid reasons or grounds.

20. The contention of the petitioner that the impugned order has been passed by the State Government without application of its mind appears to us to be justified, in the circumstances of this case, as the mere reproduction of the language of Section 99-A (1) of the old Code and that too in a faulty manner, as pointed out above, without disclosing the reasons which led the State Government to form the opinion expressed by it in the impugned notification renders the said notification invalid and void.

21. The grounds of opinion are a vital and essential part of the notification because it is those grounds which would reveal the justification for the issuance of the notification. The requirement of stating the grounds for the opinion of the State Government, being an imperative and integral part of the section, it would follow that a notification in order to be legal and effective must comply with and fulfil that requirement. As a matter of fact, I such a compliance is a sine qua non for the validity of the notification, and a notification which does not incorporate the grounds for the opinion would be not in conformity with law. The law in this respect is mandatory and has to be substantially complied with and it is not enough to merely reproduce the language of Sections 124A, 153A, 153B, 292 or 295A, I.P.C. without specifying as to how or in what manner there has been a contravention of the provisions of those I sections or any one of them.

22. In the result, we allow the application and set aside the order passed by the State Government on July 26, 1975, forfeiting the booklet 'Kranti Kiyon Aur Kaise' and every copy thereof, or any other document containing copy, reproduction or extract thereof. The petitioner shall be entitled to Rs. 300 by way of costs from the State.


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