GULAM SARWAR FIRGAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application has been filed by one Ghulam Sarwar Figar, under Section 99-B of the Code of Criminal Procedure, praying that an order of forfeiture of the book called "Nawa-i-Kashmir", passed by the Government of Bihar may be set aside. The facts stated in the application are as follows: It is stated that the petitioner is a journalist, carrying on a business of publishing books and supplying stationery in the name and style of Nafi and Company, at Calcutta. The petitioner has compiled the speeches of Sheikh Mohammad Abdullah, the former Prime Minister of Kashmir, delivered between the 8th of January and the 29th of April, 1958. The compilation is entitled "Nawa-i-Kashmir" and has been published by Nafi and Company. By notification No. 1449/PR-45/61, dated the 6th of November, 1961, issued by the Government of West Bengal, under Section 99-A of the Code of Criminal Procedure, this book was forfeited by the Government. (The correct number is 14424 and not 1449). The said notification of the Government of West Bengal had been published in a Gazette Extraordinary dated the 8th of November, 1961, of which the petitioner became aware on the 11th of January, 1962. The petitioner could not, therefore, apply to the High Court of Calcutta to have the order of the West Bengal Government set aside, as two months had expired from the date of publication of the order. It is then stated that the notification of the Government of West Bengal was re-published by the Government of Bihar in the Gazette, published on the 3rd of January, 1962. The notification of the Government of Bihar is number NA/Press. O.S./1011/61-4424/C, which is dated the 29th November, 1961. It is further stated that in the notification of the Government of Bihar, it is alleged that the book in question contains matters, generally and specially at pages 39, 45, 64, 164, 167, 171, 198 and 202, which are deliberately and maliciously intended to promote feelings of enmity and hatred between the Hindu and Muslim citizens of India. It is then stated in the application that the speeches compiled in the book in question, do not justify any action by the Government under Section 99A of the Code of Criminal Procedure and the speeches, including the matters a't the pages mentioned above, do not contain anything which can be said to be intended to promote or would promote feelings of enmity and hatred between the Hindu and Muslim citizens of India. It is stated further that far from intending to promote feelings of enmity, the speeches were meant to preach communal amity and good-will. The speeches are said to be honest expression of the political belief of Sheikh Mohammad Abdullah, and contain his views against the Government, for the redress of certain wrongs committed by Sheikh Mohammad Abdullah's political opponents. It is then stated that the Government of Bihar has not applied its mind to the materials contained in the book and has only copied the notification of the Government of West Bengal. According to this application, the notification of the Government of Bihar is contrary to law, as no grounds are mentioned for the forfeiture of the book. Thus, it is prayed that the order of the Government of Bihar, dated the 29th November, 1961, published in the Bihar Gazette of the 3rd January, J962, may be set aside.

(2.) In order to appreciate the arguments advanced by the learned counsel for the petitioner and the learned Standing Counsel, appearing for the State of Bihar, the notification of the Government of Bihar published on the 3rd of January, 1962, incorporating the order of the Government of West Bengal, dated the 6th November, 1961, is quoted below: ..(Verunacular Matter Omitted).. The 6th November 1961. No. 1449-Pr.-45/61- Whereas it appears to the Governor that the book in Urdu entitled "Nawa-i-Kashmir" compiled by Ghulam Sarwar Figar, printed at the Taj Press, Calcutta, and published by Nafi and Co., 4 Abdul Ali Row, Calcutta-16, contains matters, specially at page 39, 45, 64, 164, 167, 171, 198 and 202, which are deliberately and maliciously intended to promote feelings of enmity and hatred between the Hindu and Muslim citizens of India and the publication of which is punishable under Section 153A of the Indian Penal Code i860 (XLV of 1860); Now, therefore, in exercise of the power conferred by Section 99A of the Code of Criminal Procedure, 1898 (V of 1898), the Governor is pleased hereby to declare every copy of the said book and all other documents containing copies, reprints and translations of, or extracts from, the said book to be forfeited to the Government. By order of the Governor K. N Sen Gupta, Dy, Secy. to the Govt. of West Bengal."

(3.) Having heard learned counsel for the parties, it appears to me that there is an insurmountable obstacle in the way of the petitioner asking this Court to enter into the merits of the case and hold that the order of the Government of Bihar contained' in the notification published on the '3rd of January, 1962 should be set aside under Section 99-D of the Code of Criminal Procedure. Before this Court can consider the order of the Government of Bihar on merits, it must first be established that the order is an order of forfeiture, passed by the Government of Bihar under Section 99A of the Code of Criminal Procedure. Prima facie, the notification of the Government of Bihar, quoted above, was only for information with respect to the order of the Government of West Bengal. This is clear from the expression " ..(Verunacular Matter Omitted).. The literal translation of this expression is that the notification given below is published for information. But learned counsel for the petitioner has contended that in spite of the wording of the order passed by the Government of Bihar, in the terms in which it is passed, it is clear that the Government of Bihar had also passed an independent order of forfeiture under Section 99A of the Code of Criminal Procedure. In this context it is urged that although the notification of the Government of Bihar is dated the 29th of November, 1961, as it was published in the Bihar Gazette on the 3rd January, 1962, the present application filed in this Court on the 1st of March, 1962. ought to be considered to have been filed within two months of the date of the order of forfeiture passed by the Government of Bihar. Without going into the question as to whether this application has been filed within two months, as contemplated by Section 99B of the Code of Criminal Procedure, or not, I have reached the conclusion that this application must fail on the preliminary point, namely, that the order of the Government of Bihar, dated the 29th Nov ember, 1961, published in the Bihar Gazette on the 3rd January, 1962, is not an order of forfeiture passed by the Government of Bihar. As indicated above, the notification of the Government of Bihar must be considered to be a notification for the purpose of information only. That the Government of Bihar had considered it appropriate to publish the order of forfeiture passed by the Government of West Bengal, may be deduced from the fact that by virtue of the order of forfeiture passed by the Government of West Bengal, every copy of the book in question was forfeited to the Government & any police officer may seize the book where ever found in India. Moreover, 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 a copy of the book in question may be or may be reasonably suspected to be. The conclusion that the Government of Bihar had published the notification only for general information, without meaning it to be an order of forfeiture, under Section 99A of the Code of Criminal Procedure, is also apparent from the following: The notification of the Government of Bihar was published in Part III of the ordinary Bihar Gazette. Part HI of the Gazette contains, "Orders, Notifications and Rules of the Government of India, of the Government of West Bengal, of the High Court and of the Accountant-General, Bihar, Papers extracted from the Gazette of Indian and and Provincial Gazette." Part II contains, "Regulations, Orders, Notifications, Rules etc., issued by the Governor of Bihar and by Heads of Departments." Therefore, had the notification of the Government of Bihar been an order of forfeiture, it would have been published in Part II of the Gazette. Thus, the conclusion must be that notification No. NA/Press O.S./1011/61--14424/C of the Government of Bihar, dated the 29th November, 1961, was not an order of forfeiture, passed by the Government of Bihar, under Section 99A of the Code of Criminal Procedure.