Material

1. Natural justice is an essential element of the procedure established by law. The concept
of natural justice implies 'fair play in action'. Fair play in action demands that before any
prejudicial or adverse action is taken against a pe son he must be given an opportunity to
be heard.1
In Barjinder Singh v. State of Punjab, a magazine "Sant Sipahi" was forfeited on the ground that
its publication constitutes an offence under Section 124-A of the Penal Code. The order had
simply mentioned that "Sant Sipahi" brings and excites disaffection towards Government
established by law in India: Beyond this the Government did not state the grounds of forming
such an opinion. It was held that the order of forfeiture was liable to be set aside because the
order instead of stating the grounds of opinion simply reproduces certain words of Section 124-A
of the Penal Code. As for the constitutionality of Section 95 concerned it does not offend Article
14, 21 and 19(1)(g) of the Constitution as the section contains inbuilt safeguards and the State
Government is required to state the grounds of its opinion. It was further held that giving of
opportunity of hearing before passing order of forfeiture is not practicable.

2. Conditions for validity of an order of forfeiture. For the validity of an order of forfeiture
two things are necessary :(i) that the Government had formed the opinion that concerning
document contains any matter the publication of which is punishable under Sections 124-
A, 153-A or 295-A of the Penal Code; (ii) that the Government has stated in the order the
grounds which had led to the formation of the opinion.2
If either of the two conditions are not complied with, the High Court must set aside the order of
forfeiture. However, it is not necessary that before passing an order of forfeiture the State
Government should issue a notice to any person or should afford reasonable opportunity of being
heard. Legislature has provided specific remedy under Section 96 to an aggrieved person.3
3. In Sangharaj Damodar Rupawati & others v. Nitin Gadre and others4, a book was
forfeited by Government without disclosing any offence under Section 153-A of the
Indian Penal Code. It was held that there was failure by the State to show that publication
has resulted in disturbance of public tranquillity or maintenance of public harmony
between various groups. Mere vandalization of a research institute after publication of
book is not sufficient to justify forfeiture. Therefore, the Supreme Court directed the
State not to proceed against the author of the book as no offence under Section 153-A
LP.C. was disclosed. Hence notification declaring forfeiture of book was held liable to be
quashed.

1
Barjinder Singh vs State Of Punjab Through The Chief 1993
2
Sadhu Singh Hamdrad Trust v. State of Punjab, 1992 Cr. L.J. 1002 (Punj & Har); Ser also M/s. Varsha
Publications v. State of Maharashtra, 1993 Cr. L.J. 1446.
3
Lalai Singh v. State of U.P., 1971 Cr. L.J. 1519
4
Notification declaring forfeiture of publication.-Through the impugned notification, it has been
brought to the notice of the Government that the book contains highly objectionable and
provocative writings which promote religious disharmony or feelings of enmity, hatred or ill will
between different religious groups. The second paragraph proceeds to say that the publication of
such a document is likely to prejudice the maintenance of religious harmony which is an offence
punishable under Section 153-A of the IPC. The court held that firstly, there is nothing in the
notification which amounts to an expression that it appears to the State Government that the
publication contains highly objectionable and provocative writings which promote religious
disharmony feelings of enmity, hatred or ill-will between different religious groups. There is no
formulation of opinion by the State Government reflected in the notification. Neither any opinion
by the State Government is stated, though that is mandatory. Total absence of such expression of
opinion, therefore, vitiates the impugned declaration of forfeiture.
Grounds of the opinion have to be stated in the notification. There is no such ground stated in the
impugned notification. The grounds of opinion must mean conclusion of and on facts, on which
the opinion is based. A mere repetition of an opinion or reproduction of the relevant statutory
provision will not answer the requirement of a valid notification, though it is not necessary that
the notification must bear a verbatim record. The validity of the order would depend upon the
merits of the grounds. The High Court would set aside the order of forfeiture if there are no
grounds of opinion because if there are no grounds of opinion it cannot be satisfied that the
grounds justify the order.
If there are no grounds of opinion stated in the notification under Section 95, there is no manner
in which the High Court can be satisfied about the grounds given by the Government to justify
the order. This fundamental reason sufficient for us to dissuade ourselves from accepting the
request of the learned public prosecutor to look into the Government files, the existence of which
itself is not reflected or expressed anywhere in the notification or elsewhere in the proceedings.5
4. It has been held in Mohammed Khalid v. Chief Commissioner of Delhi6, that the
Government while issuing a notification under Section 99-A (now Section 96) has to
state the grounds of its opinion on the basis of which it comes to the conclusion that the
newspaper, book or document contains any seditious matter or any matter which
promotes or is intended to promote feelings of enmity or hatred between different classes
of citizens of India or which is deliberately and maliciously intended to outrage the
religious feelings of any class by insulting the religion or the religious beliefs of that
class. The grounds of opinion are vital and essential part of the notification because it is
those grounds which would reveal the justification for the issuance of the notification. A
notification which does not incorporate the grounds of the opinion, would not be in
conformity with law. The law in this respect has to be substantially complied with and it
is not enough to merely reproduce the language of the relevant sections of the Penal Code
without specifying as to how or in what manner there has been contravention of the
provisions of those sections. The High Court may set aside the order of forfeiture where

5
KK Abdul ali v. State of kerela 2016
6
 no grounds are stated by the Government in the notification or where the court is not
satisfied that the opinion could have been arrived at on the grounds stated in the
notification.7

5. In Anand Chintamani Dighe v. State of Maharashtra8, a notification for the forfeiture of

the book entitled Mee Nathuram Godse Bolto ahe (I am Nathuram Godse speaking) in all
its forms including Gujarati translation was seized under Section 95 by the State
Government on the ground that circulation of the said book will disturb public
tranquillity, promote disharmony or feelings of enmity, hatred or ill-will among different
groups or communities. But the notification did not set out facts which formed the basis
of opinion of the State Government. The Court, therefore, held that it did not fulfil the
mandatory requirement of Section 95 (1), Cr.P.C. Mere reference of Sections 153-A and
295-A of I.P.C. in the notification could not save notification against consequences of
invalidity. The State Government had exercised its powers under Section 95 extraneously
and, therefore, the forfeiture of the Book was ultra vires the Section 95 (1).

6. The High Court of Calcutta in Sujato Bhadra v. State of West Bengal9, held that State
Government was justified in publishing second notification regarding forfeiture of a book
if in its opinion the first notification suffered from any technical defects.

7
Harman Dass v. State of Up 1961
8
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