CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 236 of 1969. Appeal by special leave from the judgment and Order dated March 13, 1969 of the Madhya Pradesh High Court in Miscellaneous Criminal Case No. 268 of 1967. Ram Punjwani and P. C. Bhartari, for the appellant. R. P. Kapur and I. N. Shroff, for the respondent. The Judgment of the Court was delivered by Mitter J., This appeal by special from a judgment and order of the High Court of Madhya, Pradesh dismissing the’ writ petition of the appellant challenging the, order of the State Government under s. 5 of the Criminal Law Amendment Act (Act XXIII of 1961) forfeiting the copies of a book published by the appellant under S. 4(1) of the Act, can be disposed of on the short ground that the order did notdisclose the grounds of the opinion formed by the State Government. The Criminal Law (Amendment) Act, 1961 (hereinafter referred to as the ’Act’) empowered the State Governments by s. 4 to make order declaring any newspaper or book as defined in the Press and Registration of Books Act, 1867 or any other document wherever printed, to be forfeited to the Government if it appeared to the Government that the said book etc. questioned the territorial integrity or frontiers of India in a manner which was or was likely to be prejudicial to the interests of the safety or security of India. The relevant provisions of the Act are as follows :-
" S. 2. Whoever by words either spoken or
written, or by signs, or by visible
representation or otherwise, questions the
territorial integrity or frontiers of India in
a manner which is, or is likely to be
prejudicial to the interests of the safety or
security of India, shall be punishable with
imprisonment for a term which may extend to
three years, or with fine, or with both.
4. (1) Where any newspaper or book as
defined in the Press and Registration of Books
Act, 1867, or an other document,_ wherever
printed, appears to the State Government to
contain an matter the publication of which Is
punishable under section 2 or sub-section (2)
of section 3, the State Government may, by
notification in the Official Gazette, stating
the grounds of its opinion, declare every copy
of the issue of the newspaper containing such
matter and every copy of such book or other
document to be forfeited to the Government,
and thereupon any police officer may seize the
same wherever found 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 copy of such book or
other document may be or may be reasonably
suspected to be.
5. (1) Any person having any interest in
any news book or other document in respect of
which an forfeiture has been made under
section 4 may, within two months from the date
of such order, apply to
the High Court to set aside such order on the
ground that the issue of the newspaper, or the
book or other document in respect of which the
order was made did not contain any matter of
such a nature) as is referred to in sub-
section (1) of section 4.
(2) The provisions of sections 99-C to 99-F
of the Code of Criminal Procedure, 1898, shall
apply in relation to an application under sub-
section (1) as they apply in relation to an
application under section 99-B of that Code
and the reference in section 99-D to seditious
or other matter of such a nature as is
referred to in subsection (1) of section 99-A
of that Code shall be construed as reference
to any matter of such a nature as is referred
to in sub-section (1) of section 4 of this
Act.
(3) No order passed or action taken under
section 4 shall be called in question in any
Court otherwise than in accordance with the
provisions of this section." The appellant who was admittedly the proprietor of the Narmada Printing Works, Jabalpur had published a book under the name and style of "Madhyamic Bhoogol (Part I for Classes IX and X) written by C. P. Saxena. On 1St July, 1967 the State Government passed the order which is impugned in this case:
"Whereas the books specified in the Schedule
below question the territorial integrity and
frontiers of India in a manner which is likely
to be prejudicial to the interest of the
safety and security of India;
And whereas it appears to the State Government
that the said three books contain matter the
publication of which is punishable under
section 2 of the Criminal Law Amendment Act,
1961 (No. 23 of 1961);
Now therefore in exercise of the powers
conferred by, sub-section (1) of section 4 of
the Act, the State Government hereby declares
every copy of the said three books and all
other documents containing copies, reprint and repro duction of the said books to be
forfeited in favour of the Government." The second item in the Schedule relates to the appellant’s publication From the communication of the Deputy Secretary to the Government of Madhya Pradesh dated 5th August 1967 it would appear that the State Government took objection to pages 138, 147 and 149 of the said book as containing wrong maps. According, to the said communication :
"These books contain maps of India, part of
India, maps of countries adjacent to India and
maps of Asia. All these maps involve the
external boundary of India which has been
found to be grossly incorrect. Besides this,
the island territories of ’Laccadive, Minicoy
and Amindivi Islands’ which form an integral
part of India are omitted together from every
map of India. In some of the maps the
territory of Bhutan has been omitted while in
other Indo-Pakistan boundary is ignored." The communication refers not only to the publication with which we are concerned in this case but also two other publications both of which appear to be books on geographyfor school students. The appellant filed his writ petition on August 29, 1967 before High Court challenging the order of the 1st July 1967 inter alia on the ground That the grounds for the opinion of the State Government which had to be given in terms of s. 4 of the Act were non-existent in the order. He therefore filed the petition, within two months of the date of the order forfeiting the book in terms of s. 5 of the Act. In the counter affidavit of the State the stand taken was that the State Government was not bound to place details of information on the basis of which its satisfaction was arrived at. Reference was however made ’in the counter affidavit to a communication of the Director of Map Publications to the Director of Public Instruction dated 21st March 1967 in which it was stated with regard to all the three alleged offending books that
"they contain maps of India, part of India,
maps of countries adjacent to India and maps
of Asia. All these maps involve the external
boundary of India which has been found to be
grossly incorrect. Besides this, the island
territories of ’Laccadive, Minicoy and
Amindivi islands’ which form an integral part
of India are omitted together from every map
of India. In some of the maps the territory
of Bhutan has been omitted while in other
Indo-Pakistan boundary is ignored." The High Court of Madhya Pradesh took the view that the impugned order could not be said to have omitted to state the grounds for the opinion of the State Government. According to the High Court :
"the grounds on which the said opinion was
based were that the books contained matter
which questions the territorial integrity and
frontiers of India in a manner which is likely
to be prejudicial to the interest of the
safety and security of India." 8-L1286SupCI/72 In our view the High Court had clearly gone wrong in this view of the law on the subject. According to the Oxford Dictionary the meaning of the word ’ground’, in this connection must be "base, foundation, motive, valid reason." what the State Government did in this case in the opening paragraph of the order was merely to quote a portion of the words of s. 2 namely, that the books "questioned the territorial integrity and frontiers of India in a manner which is likely to be prejudicial to the interest of the safety or security of India". The order gives no indication of the facts or the statements or the representations contained in the book which according to the State Government offended s. 2. In the order itself there is no reference to any map or any text in the book which would come within the mischief of the said section. A book may contain matter questioning the territorial integrity and frontiers of India in many ways one of which may be a wrong map which does not show the proper boundaries of India, either by omitting a portion of the Indian territory therefrom or by depicting a portion of what is really Indian territory as belonging to some other State. A book may also come within the mischief of s. 2 if there is any express reference in the text containing suggestions based on historical or political or other reasons that some portion of what is generally known to the public as Indian territory is not so. There is a considerable body of statutory provisions which enable the State to curtail the liberty of the subject in the interest of the security of the State or forfeit books and documents when in the opinion of the Government, they promote class hatred, religious intolerance, disaffection against the State etc. In all such cases, instances of some whereof are given below the State Government has to give the grounds of its opinion. Clearly the grounds must be distinguished from the opinion. Grounds of the opinion must mean the conclusion of facts on which the opinion is based. There can be no conclusion of fact which has no reference to or is not ex facie based on any fact. The provisions of the Act have a close parallel in s. 99-A of the Code of Criminal Procedure, 1898 in which a large number of matters are mentioned which according to the Government may lead it to form the opinion that the publication offended the said section. There are also decisions under the Indian Press Act which illustrate what the grounds in a case like this must be. In re. Mahomed Ali(1), a case of an order of forfeiture of a pamphlet under the Press Act of 1910, the order of Government went to show that the pamphlet "Come over to Macedonia and help us" contained words of the nature described in s. 4 sub-s. (1) of the (1) 41 Calcutta 466. Indian Press Act, 19 1 0 inasmuch as they are likely to bring into hatred or contempt certain classes of His Majesty’s subjects in British India. According to Jenkins C.J. (p. 476):
"Those responsible for this Act foresaw this,
and so they specifically provided that the
forfeiting notification should state the
grounds of the Local Government’s opinion.
But when we turn to the notification no such
grounds are stated; nothing in the nature of a
fact is set forth, there is merely a citation
of those words of the section which are
invoked....
But the repetition of an opinion cannot be its
grounds, and yet that is all that the
notification furnishes in the shape of
grounds. This is obviously insufficient and
not a compliance with the terms of the Act."
According to the other learned Judge Stephen,
J. (p. 487)
"The ground of an opinion must in this case,
if not always, be a fact or facts, and no fact
is disclosed merely by a specific relation of
the elements that the law requires to be
present in order for legal consequence to
follow." In Arun Ranjan Ghose v. State of West Bengal(1) a case under ss. 99-A and 99-D of the Code of Criminal Procedure it was stated by Chakravartti, C.J. (p. 497):
"It is useful to consider here what is meant
by grounds of opinion. The formation of an
opinion by Government is undoubtedly the
ground for the action taken by them, but the
grounds for the opinion are obviously
different. The opinion, after it has been
formed, furnishes a ground to Government for
taking action contemplated, but the grounds on
which the opinion itself is formed are and
must be other grounds’ Those grounds must
necessarily be the import or the effect or the
tendency of matters contained in the offending
publication, either as a whole or in portions
of it, as illustrated by passages which
Government may choose." In Harnam Das v. State of Uttar Pradesh (2 ) the order under s. 99-A of the Code of Criminal Procedure which was made went to show that the State Government declared the books forfeited on the ground that the said books contained matter the publication of which was Punishable under s. 153--A and 295-A of the Penal Code. The two sections of the Indian Penal Code have little in common inasmuch as s. 153-A relates to an offence of (1) 59 C. W.N. 495. (2) [1962] 2 S.C.R. 487. promotion or attempt to promote feelings of enmity or hatred between different classes of citizens of India and s. 295-A relates to an offence maliciously intended to outrage he religious feelings of any such class by insulting the religion or the religious belief of that class. The order which was considered by the court in that case gave no indication which formed the reason for Government taking the view that the book should be forfeited. The Court held that the order did not as it should have stated the rounds of opinion. It is not known which communities were alienated from each other or whose religious beliefs were wounded. We may also refer to Art. 22(5) of the Constitution which lays down that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. In considering the question as to what the grounds of detention meant when an order under Preventive Detention Act was made this Court said in Naresh Chanra, Ganguli v. The State of West Bengal & others(1):
" . . the grounds for making an order of
detention, which have to be communicated to
the detenu as soon as practicable, are
conclusions of facts, and those conclusions of
facts have to be communicated to the detenu as
soon as may be." We may also refer to the judgment of this Court in State of Bombay v. Atma Ram Sridhar Vaidya(2), a case under the Preventive Detention Act, Kania C.J. said (p. 178):
"By their very nature the grounds are
conclusions of facts and not a complete
detailed recital of all the facts . . . .
These conclusions are the "grounds" and they
must be supplied.’-’ All the above decisions in our opinion clearly show what the requirements of the Criminal Law Amendment Act are and it appears to us that the State Government merely gave it’s opinion and not the grounds for its opinion. As such the judgment of the High Court must be set aside and the order of Government dated July 1, 1967 must be quashed. The appellant will be entitled to return of all the books forfeited. V.P.S. Appeal allowed. (1) [1960] 1 S.C.R. 411 at 421. (2) [1951] S.C.R. 167.