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

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

Section -95. (1) Where—

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 Indian Penal Code (45 of 1860), 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 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,—

(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.

COMMENTS

Supreme Court on old section 99A – It will be of interest to note here that the Supreme Court has in State of U.P. v. Lalai Singh Yadav AIR 1977 SC 202 interpreting the old section 99A, held that a formal authoritative setting forth in an order or notification of grounds and reasons for the forfeiture of a book or any publication is statutorily mandatory under the Code. This conclusion establishes a constitutional rapport between the penal section 99A of the Code and the Fundamental Right of Expression under article 19 of the Constitution. The Court has observed :

“The Government has the power and responsibility to preserve societal peace and to forfeit publications which endanger it. But what is thereby prevented is the freedom of expression, that promoter of the permanent interests of human progress. Therefore, the law [section 99A] fixes the mind of the administration to the obligation to reflect on the need to restrict and to state the grounds which ignite its action. To fail here, is to fault the order (of forfeiture).”

Referring to the omission of the U.P. Government to give the grounds for the forfeiture of a book, the judgment said :

“If you laze and omit, the law visits the order with voidness and this the State Government must realise specially because forfeiture of a book for a penal offence, is a serious matter, not a routine act to be executed with unconcern or indifference. The wages of neglect is invalidity, going by the text of the Code.

These considerations are magnified in importance when we regard the changeover from the Raj to the Republic and the higher value assigned to the great rights of the people. Section 99A of the Code enables the aggrieved party to apply to the High Court to set aside the prohibitory order and the Court examines the grounds of Government order and affirms or upsets it. The Court cannot make a roving enquiry beyond the grounds set forth in the order and if grounds are altogether left out what is the Court to examine ? And by this omission, careless or calculated, the valuable right of the appeal to the Court is defeated. A construction of the section, fraught with such pernicious consequences and tampering with the basic structure of the statutory remedy must be frowned upon by the Court, if the liberty to publish is to be restricted only to the limited extent the law allows.”