SHANTILAL VADILAL SHAH Vs. STATE OF BOMBAY

JUDGEMENT

(1.) A book by the name of "aghor Van" was published in Ahmedabad in November 1951. It was published in the Gujrat Printing Press. On 15-8-1953, Government instituted proceedings against the keeper of the press under s. 4, Press (Objectionable Matters) Act (LVI of 1951 ). While those proceedings were pending, the Advocate General gave a certificate on 24-7-1953, Under Section 11 of the Act and acting on that certificate the Government issued an order forfeiting all the books on 5-8-1953. The keeper of the press has come before us on two petitions, one challenging the order of forfeiture and the other complaining of the action of Government in issuing the order of forfeiture and giving publicity to it in the press while the judicial proceedings were pending and alleging that Government is guilty of contempt. In the petition challenging the order of forfeiture it has been contended that Act LVI of 1951 is 'ultra vires' of the Constitution. We have heard this petition first as it raises an important constitutional question and the Attorney General was made a party to this petition to support the constitutionality of the Act.

(2.) TURNING to the Act and looking to the scheme of the Act, Section 3 defines "objectionable Matter" and the relevant clause is Clause (v) which is "any words, signs or visible representations which are likely to promote feelings of enmity or hatred between different sections of the people of India. " the case of the State of Bombay is that the book in question contained passages which promote feelings of enmity or hatred between the Hindus and Muslims living in this State. Section 4 deals with proceedings for security, and it provides that whenever upon complaint made to him in writing by the competent authority and inquiry made in the manner hereinafter provided, a Sessions Judge is satisfied that a press publishes any newspaper or book containing objectionable matter, he may direct the keeper of the press to deposit security. The power is also given to the Sessions Judge, instead of demanding security, merely to record a warning against the keeper. Section 5 deals with a demand of further security and it deals with a case where a press against whom an order is made under Section 4 thereafter prints in the press a book or paper containing objectionable matter and after necessary inquiry the power is given to the Sessions Judge to demand further security and also declare security as has been deposited under Section 4 to be forfeited. Power is further given to the Sessions Judge to declare all copies of newspapers, books or other documents containing objectionable matter to be forfeited to Government. Section 6 deals with the consequences of failure to deposit security as required under Section 4 or 5 and the consequences are that the declaration made by the keeper of the press under the Press Registration Act is deemed to be annulled and the keeper of the press is prevented from making a fresh declaration in respect of the press and the press cannot be used for the printing or publishing of any news-paper or book. Sections 7, 8 and 9 contain provisions corresponding to Sections 4, 5 and 6 dealing with the case of a publisher of a newspaper.

(3.) NOW, in all the cases contemplated by Sections 4 and 5 and Sections 7 and 8 the inquiry has to take the form laid down in Chapter III. It gives the right to the accused to have a trial by jury and the jury is to consist of persons who have journalistic experience or have connection with printing presses or newspapers. Section 21 provides for an order being passed by the Sessions Judge in conformity with the opinion of the jury unless the Sessions Judge expresses disagreement with the opinion of the jurors, in which case he has to submit the case to the High Court, and the High Court thereupon may exercise any of the powers conferred on the Sessions Judge by the Act. Section 11 gives the power to Government to declare certain publications forfeited and this power can only be exercised by the State Government provided the Advocate General or the principal law officer issues a certificate that any issue of a newspaper or news-sheet or any book contains an objectionable matter, and the State of Bombay in the present case purported to act under this section having obtained, as already stated, a certificate of the Advocate General.