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1974 Supreme(J&K) 78
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
S. Murtaza Fazl Ali,Jaswant Singh,Mian Jalal-ud-Din, JJ.
Bennet Coleman And Co. Ltd. & Ors. - Appellant
Versus
State Of J&K - Respondent
Writ Petition No. 373/1974
Decided On : 04 October, 1974
Advocate For Appellant: L.M. Singhvi (Dr.)
Advocate For Appellant: D.K. Aggarwal
Advocate For Appellant: J.L. Chowdhry
Advocate For Respondent: O.N. Tikku
S. 99-A of the Criminal P.C. requires the Government to disclose the grounds of its opinion before passing an order under this section.
Headnote:
CRIMINAL PROCEDURE CODE - S. 99-A - FORFEITURE OF PUBLICATION - GROUNDS OF OPINION - DISCLOSURE - MANDATORY REQUIREMENT - NON-COMPLIANCE - NOTIFICATION QUASHED.
Fact of the Case:
The Government of Jammu and Kashmir declared the issue of the ‘Illustrated Weekly of India Annual 1973’ and all other documents containing copies, reprints, and translations of the said issue to be forfeited to the Government on the ground that it contravened the provisions of S. 153-A of the Ranbir P.C. The petitioners, the proprietors of the weekly, the manager, and the editor, challenged the notification under Art. 226 of the Constitution of India, S. 103 of the State Constitution, and S. 99 B of the Criminal P.C.
Finding of the Court:
The court held that the impugned notification was liable to be quashed as it did not state the grounds of opinion framed by the Government. The court analyzed S. 99-A of the Criminal P.C. and held that the Government must clearly mention the grounds on the basis of which it forms its opinion regarding banning the article concerned and not merely pass a sweeping general order acting under S. 99-A of the Criminal P.C.
Issues: Whether the impugned notification was liable to be quashed for not stating the grounds of opinion framed by the Government.
Ratio Decidendi: The court relied on the judgment of the Supreme Court in Harnam Das V. State of UP, AIR 1961 SC 1662, 1666, wherein it was held that the Government must state the grounds of its opinion before passing an order under S. 99-A of the Criminal P.C. The court also referred to the decision of the Delhi High Court in Mohd Khalid V. Chief Commr. AIR 1968 Delhi, 13-15 (F.B) wherein it was held that the Government must disclose the grounds on which the opinion is based.
Final Decision: The petition was allowed, and the impugned Notification of the Government dated 14-12-73 was set aside.
By virtue of Notification dated 14-12-73 the Government of Jammu and Kashmir declared the issue of the ˜Illustrated Weekly of India™ Annual 1973™ printed and published by Shri Uma Shankar at the Times of India Press and edited by Shri Khushwant Singh and all other documents containing copies, reprints and translations of or extracts from the said issue to be forfeited to the Government on the ground that the said issue contained an article entitled ˜Jammu & Kashmir™ which contravened the provisions of S. 153-A of the Ranbir P.C. The Notification further prohibited the import by post or otherwise into the State any copy of the said issue and all other documents containing copies or reprints etc. thereof.
2. By a composite petition the petitioners Messrs Bennett Coleman & Co. Ltd. who are the proprietors of the weekly, Shri Romesh Chandra, Manager of the firm and Shri Khushwant Singh Editor of the Weekly have assailed the aforesaid Government Notification under Art. 226 of the Constitution of India- S. 103 of the State Constitution and S. 99 B of the Criminal P.C. The undisputed fact is that the Illustrated Weekly of India is a notable English Magazine edited by Shri Khushwant Singh, the third petitioner, and managed by the second petitioner. The magazine took out an annual feature in 1973 containing a number "of articles highlighting the cultural, social, ecomomic growth and the demographical and geographical advancement of various States in India during the 26 years of independence. The State of Jammu and Kashmir being one of the States in India also figured in the magazine and an article on this State was written jointly by Messrs Balraj Puri and Shamim Ahmad Shamim. As soon as the article was published serious exception was taken to some portions of it relating to the characteristic features of all sections of the people residing in the State which led the State Government to pass the impugned notification so that the feelings of the people were not hurt or injured.
3. The petitioners have challenged the impugned notification on various grounds. In the first place it has been alleged that the ban imposed by the Government violated the fundamental right of the petitioners regarding freedom of speech and the implied right which is a consequence thereof, namely, the right of communication between one individual and an other : secondly that the impugned notification impinged on the provisions of S. 99-A of the Criminal P.C. and was illegal, malafide and outside the scope and ambit of the aforesaid section, and thirdly that the article in question contained no offensive or scurrilous matter and was not calculated or intended to pontravene the provisions of S. 99-A of the Criminal P.C. Finally it was averred that the Government had not only banned the magazine in the State but had also prohibited the import into the State of its reprints or copies of other articles which had not been found to be offensive for circulation in India and that the Government had acted beyond the scope and ambit of S. 99-A.
4. The petition has been stoutly resisted by the State which has denied the allegations of malafides and has taken the stand that some portions of the article on Jammu & Kashmir were intended to harm and injure the sentiments of all section of the people living in the State and were calculated to promote hatred amongst these sections which compelled the Government to ban the issue of the Weekly under S. 99-A of the Criminal P.C. It was further submitted that the Government had passed the impugned notification after examining the matter fully and considering all the aspects of the matter including the one relating to the infraction of S. 153-A of the Ranbir P.C. The State further took the stand that in the circumstances it was not necessary to afford any opportunity to the petitioners to show cause before issuing the impugned notification. Finally it was argued that although the decision of the Government for banning the issue
