GAJANAN VISHESHWAR BIRJURversusUNION OF INDIA AND ORS.

A                     GAJANAN VISHESHWAR BIRJUR
                                          v.
                          UNION OF INDIA AND ORS.

                                  JULY 12 , 1994

B             [S.C. AGRAWAL AND B.P. JEEVAN REDDY, JJ.]

           Customs Act, 1962:-Sectoin Ill (d)-Confiscation of books-Books
    imported are writings, speeches and works of Mao, besides works of Man:,
    Engels and Lenin-Confiscation orders passed holding that import of said
C   books in violation of Notification No. 77 dated 22nd September, 1956-0rders
    devoid of any findings in tenns of Notification No. 77-Absence of specific
    violation of any particular clause even in show cause notices-Orders of con-
    fiscation-Held : Not lnvali~'Constitution of India, 1950-·Arts 19(1)(c)
    and 19(1)(g).
D          The petitioner, a distributor and publisher of Marxist literature,
    imported books comparising mainly the writing of Mao. Books were con-
    fiscated holding that the import of the said books was in violation of the
    Notification No. 77 dated 22nd September, 1956. Petitioners challenged the
    validity of confiscation of books in this writ petition.
E
          Allowing the writ petition, this court

           HELD : 1.1. The confiscation orders are totally bald and devoid of
    any findings in terms of Notification No.77. The order does not say which
    of the books fall within the mischief of which clause of the Notification. It
F
    is not as if the Notification prescribes these books by name, i.e. by title. It
    only says that import of books containing matter of the nature mentioned
    therein is prohibited. The books imported are writing, speeches and works
    of Mao, besides the works of Marx, Engels and Lenin. If they were
    proposed to be confiscated, it was obligatory upon the authority to say
G   which book contained words of the nature mentioned in the Notification.
    Even the show cause notices did not specify which particular clause of
    Notification No.77 was violated by which imported book. [470-H; 471-A·B)

          1.2. The order of confiscation affects not only the fundamental right
H of the petitioner to carry on his occupation bad business but also his
                                          466
                G.V. BIRJUR v. U.0.l. [JEEV AN REDDY, J.] .               467

rundamental right or freedom or speech and expression (including his             A
freedom to propagate. the thought and ideas which he thinks are in the
best interest or this nation), In such as case, it was required of the officer
to point out which book contains works, signs or visible representation
which are likely to incite or encourage any person to resort to violence or
sabotage for the purpose of overthrowing or under mining the government          B
established by law in !ndia or in any state thereof or its authority in any
area or that they attract any of the other clauses in Notification No.77.
Absence of such specification both in the show cause notices and the final
orders must be held to initiate the action taken. [471-G-H; 472-A-B)

      Maneka Gandhi v. Union of India, (1978) 2 SCR 621 and Oudh Sugar           C
Mills Ltd. v. Union of India, AIR (1970) SC 1070, referred to.

        CIVIL ORIGINAL JURISDICTION : Writ Petition (C} No. 598 of
1979.

        Under Article 32 of the Constitution of India.
                                                                                 D

        A.K. Pande for the Petitioner.

        Joseph Palli Vella and C.V. Sobba Rao for the Respondents.

        The Judgment of the Court was delivered by
                                                                                 E

       B.P. JEEVAN REDDY, J. The validity of confiscation of books
imported by the petitioner from Peoples Republic of China is questioned
in this writ petition filed under Article 32 of the Constitution. The
petitioner is a distributor and publisher of Marxist literature. In the year     F
1978, he imported books comprising mainly the writing of Mao Zedong (in
both English and Indian languages). The books were imported by sea
through Bombay and Calcutta Ports. They were seized at the said ports.
Show cause notices were issued by the Assistant Collectors of Customs of
both the places calling upon the petitioner to show cause within seven days      G
why the seized books be not confiscated for violating Notifications No.25
dated 9th March, 1960, No. 77 dated 22nd September, 1956, No. 158 dated
26th November, 1969 and No.186 dated 1st December, 1962 under Section
111(d) of the Customs Act, 1962. As many as sixteen show cause notices
were issued by both the authorities put together. On receipt of show cause
notices, the petitioner wrote to them protesting abol!t the mere seven days'     H
                          SUPREME COURT REPORTS IJ994J SUPP. I S.C.R.

A   time giYcn to hin1 for filing his explanation. He \Vanted atleast a month's
    time for submitting his explanation. He submitted further that the Notifica-
    tions referred tu in the sho\I,, cause notices were not available to a layman
    like him and requested for supply of copies thereof. The Assistant Collec-
    tor of Customs, Calcutta replied to him stating that ·he has little option in
    the matlcr in vie\v of the statutory notifications and that it is open to the
B
    petitioner to make a personal representation) if he so desires. He, ho\vever,
    made no reference to the request of the petitioner for supply of copies of
    the notifications. Thereafter, orders of confiscation were passed holding
    that the import of the said books is in violation of the Notification No.77
    dated 22nd September, 1956. The final orders do not say that any other
c   notification was violated. Complaining against the said orders, the
    petitioner approached this Court in the year 1979. Though the disposal of
    the books was stayed, his request for release of the books was not granted.
    The petition has come up for hearing after a period of fifteen years which
    period has seen cataclysmic changes in the communist world. Probably, no
    one would care to seize or confiscate the writings of Mao, if they are
D
    imported today. That, of course, is later history.

           The mai.n submission of the writ petitioner is that he has a fundamen-
    tal right to propagate Marxist thought as expounded by Lenin and Mao
    Zedong and that inasmuch as the books imported by him have not been
E   prescribed, he has a right to import and distribute them. He submits that
    the books are in no way prejudicial to the security of the State or public
    order and, therefore, the notifications banning the import of the said books
    are violative of his fundamental right under Article .19(1)(a). He seeks to
    invoke Article 19(1)(g) as well.
F
            In the counter affidavit filed on behalf of the Government of India,
    it is stated that Section 3(1) of the Import and Export (Control) Act, 1947
    empowers the Central Government to prohibit import of goods of any
    specified description and that the goods imported despite the said prohibi-
G   ti on are liable to confiscation under Section 111(d) of the Customs Act. It
    is submitted that there was no duty cast upon the Assistant Collectors or
    Customs to supply the copies of notifications to the petitioner. They were
    also not bound to inform him of the date of hearing in the absence of an
    explanation from him. The confiscation is fully warranted by Notification
H   No. 77 and is unobjectionable.
                      G.V. BIRJUR v. U.0.1. iJEEVAN REDDY. J.J                   469

     Notification No. 77 dated 22nd September, 1956, as published in the                A
Gazette of India, Part iJ-,ection 3 dateC 22nd September, 1956 reads as
foHo·,:{<.;:

               "S.R.0. 2116.--In exercise of the powers conferred by section 19
               of the Sea Customs Act, 1878 (8 of 1878), as in force in India and
               as applied to the Stale of Pondichcrry, and in supersession of the
                                                                                        B
               notification of the Government of India in the Ministry of Finance
               (Revenue Division) No. 49-Customs, dated the 2nd August, 1952,
               the Central Government hereby prohibits the bringing by sea or
               by land into India or the State of Pondicherry of any newspaper,
               news~shcct, book or other docun1ent containing words, signs or           C
               visible representations which arc likely to-

               (i) incite or encourage any person to resort to violence or sabotage
               for the purpose of overthrowing or undermining the Government
               established by law in India or in any State thereof or its authority     D
               in area; or

               (ii) incite or encourage any person to commit murder, sab~tage or
               any offence involving violence; or

               (iii) incite or encourage any person to interfere with the supply        E
               and distribution of food or other essential commodities or with
               essential services; or

               (iv) seduce any member of any of the armed forces of the Union
               or of the Police forces from his allegiance or his duties or prejudice
               to the recruiting of persons to serve in any such forces or prejudice    F
               the discipline of any such forces; or

               (v) promote feelings of enmity or hatred between different sections
               of the .people of Indi2; or which

               (vi) are groosly indecent or arc scurrilous or obscene or intended
                                                                                        G
               for black mail."

       We may now notice the final orders of confiscation. One of the
orders passed by the Collector of Customs, Calcutta on April 17, 1979, is
filed as an annexure to the writ petition. It reads as follows:           H
     470                  SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

 A           "Subject : Datained foreign (Postal) Packets contaning objec-
             tionable publications. Selected works of Mao VoUV Mao Tse
             Tung Ki Sankalita Grantha-4, 1, Quotations from Chairman Mao
             Tse Tung, Mao Tse Tung five essays on Philosophy.

                 The publications referred to above were examined by the
 B           Customs at Calcutta and were found to contain objectionsable
             Government of India, Ministry of Finance (Deptt. of Revenue &
             Insurance) Prohibitory Notifications No. 77 dt. 22.9.56, read with
             Ministry's letter No. NIL The publications involved were, accord-
             ingly, liable to confiscation under section lll(d) of the Customs
.c           Act, 1962. the addressee of the packets were, therefore, called
             upon to intimate to this office whether they had any objection to
             the publications in question being confiscated or whether they
             would prefer a personal hearing before the Assistant Collector of
             Customs, Postal Appraising Department, Calcutta-1, in the matter.

 D             . The addressee did not respond to the Show Cause memo issued
             on 21.3.1979 in the Customs House Notice Board and hence the
             cases are being adjudicated ex-parte on their merits.

                As the entry or importation of these publications into India
 E           cannot be allowed in terms of the Government of India's
             prohibitory Notifications and Ministry's letter No. cited above,
             these are liable to confiscation.

                                       Order

 F           I, accordingly, order that the publications in question be confis-
             cated absolutely under section lll(d) of the Customs Act '62'."

           (Para-2 of this order says that the petitioner did not respond to the
     show cause memo dated 21st March, 1979. It is, however, admitted in the
 G counter-affidavit that in response to earlier .show cause notices the
     petitioner did indeed ask for more time and for supply of copie> of the
     notifications. It appears probable that the petitioner did not respond to
     subsequent show cause notices.

           It would be seen immediately that the confiscation orders are totally
 H bald and devoid of any findings in terms of Notification No.77. The order
               G.V. BIRJUR v. U.0.1. [JEEVAN REDDY, J.]                 471

does not say which of the books fall within the mischief of which clause of A
the Notification. It is not as if the Notification proscribes these books by
name, i.e., by title. It only says that import of books containing matter of
the nature mentioned therein is prohibited. The books imported are
writings, speeches and works of Mao, besides the works of Marx, Engels
and Lenin. If they were proposed to be confiscated, it was obligatory upon
                                                                                B
the authoril:y to say which book contained words of the nature mentioned
in the Notification. In this context, it is relevant to note that even the show
cause notices did not specify which particular clause of Notification No.77
was violated by which imported book. Some of the show cause notices
make interested reading. One of the notices (filed as an annexure to the
writ petition) issued by the Calcutta officer says: "on examination, the above C
mentioned publications appear to offend one or more of the
G.0.1.E.(D.R.) Notfn.No.25 of 9.2.(3?).60, Notfn.No.77 of 22.9.56 and
Notfn.No.158 of 26.11.69 and Notfn.No.186 dated 1.12.62 which prohibits
the export into India of any such publications. The publications, therefore
appear to be liable to confiscation under section 111(d) of Customs Act, D
62." The casual manner in which the matter has been dealt with is
self-evident.

       Though it is stated that in the counter affidavit - and also in one of
the letters written by the Assistant Collector of Customs, Calcutta to the
petitioner - that the works of Mao Zedong are banned by Notification E
No.77, the Notification does not bear out the said assertion. The Notifica-
tion is a general one saying that books containing words which have the
effect of inciting or encouraging any person to do any of the acts specified
therein are banr,ed. In such a situation, unless the order specifies and/or
refers to the words or portions having a particular effect within the mean- F
ing of Notification No.77, the order cannot be sustained. The mere fact
that the petitioner did not submit his explanation is no answer. It would
have been an answer, if the show cause notices had specified the offending
material and the petitioner had failed to respond. But that is not the case
here. As pointed out above, the s.how cause notices themselves are bald
and drawn up in a casual manner. It must be remembered that the order G
of confiscation affects not only the fundamental right of the petitioner to
carry on his occupation and business but also his fundamental right of
freedom of speech and expression (incluciing his freedom to propagate the
thouglits and ideas which he thinks are in the best interest of this nation).
In such a case, it was required of the officer to point out which book H
    472                   SUPREME COURT REPORTS [1994] SUPP. l S.C.R.

A   contains words, signs or visible representations which are likely to incite or
    encourage any person to resort to violence or sabotage for the purpose of
    overthrowing or undermining the government established by law in India
    or in any State thereof or its authority in any area or that they attract any
    of the other clauses in Notification No. 77. Absence of such specification
    both in the show cause notices and the final orders must be held to vitiate
B
    the action taken.

          In Maneka Gandhi v. Union of India, [1978] 2 SCR 621, it was
    observed (by Bhagwati,J.):

c            "It is true, and we must straightway concede it, that merely because
            a statutory provision empowering an authority to take action in
            specified circumstances is constitutionally valid as not being in
            conflict with any fundamental rights, it does not give a carte
            blanche to the authority to make any order it likes so long as it is
            within the parameter!:. laid G~~vn toy the statutory provision. Every
D           order made under a statutory provision must not only be within
            the authority conferred by th.; statutory provision, but must also
            stand the test of fundamental rights. Parliament cannot be
            presumed to have intended to confer power on an authority to act
            in contravention of fundamental rights. "It is a basic constitutional
E           assumption underlying every statutory grant of power that the
            authority on which the power is conferred should act constitution-
            ally and not in violation of any fundamental rights. This would
            seem to be elementary and no authority is necessary in support of
            it."

F         To the same effect are the observations of Hegde,J. in Oudh Sugar
    Mills Ltd. v. Union of India, A.l.R. (1970) S.C. 1070. The learned Judge
    said:

             "It must be remembered that right to trade is a guaranteed .
             freedom. That right can be restricted only by law, considered by
G            the Courts as reasonable in the circumstances. Not only the law
             restricting the freedom should be reasonable, the orders made on .
             the basis of that law should also be reasonable."

           In view of our opinion on the validity of the orders of confiseation,
H ii is unnecessary to go into the question whether Notification No.77 is itself



                                                                     /
               G.V. BIRJUR v. U.0.1. [JEEVAh REDDY,J.]                   473

violative of Article 19(1)(a) or 19(1) (g) of the Constitution.                  A

       Before parting with this case, we must express our unhappiness with
attempts at thought control in a democratic society like ours. Human
history is witness to the fact that all evolution and all progress is because
of power of thought and that every attempt at thought control iE doomed
to failure. An idea can never be ki!!ed. Suppression can never be a              B
successful permanent policy. Any surface serenity it creates is a false one.
It will erupt one day. Our constitution permits a free trade, if we can use
the expression, in ideas and ideologies. It guarantees freedom of thought
and expression - the only limitation being a law in ternis of clause (2) of
A'ticle 19 of the Constitution. Thought control is alien to our constitution-    c
al scheme. To the same effect are the observations of Robert Jackson,].
In Ame1ican Communications Association v. Douds, 339 U.S.382, 442-43
(1950], with reference to the U.S. Constitution:

         "thought control is a copyright of totalitarianism, and we have no
         claim to it. It is not the function of our Government to keep the D
         citizen from falling into error; it is the function of the citizen to
         keep the Government from falling into error. We could justify any
         censorship only when the censors are better shielded against error
         than the censored."
                                                                                 E
       The learned counsel for the petitioner requested lastly that his client
is entitled to damages/compensation for the illegal seizure and confiscation
of the said publications. He submitted that he has been disabled from
selling the said books which he had purchased at a substantial cost. Today,
he says, the said publications have lost their value on account of passage
of time and are no longer saleable. People generally do not buy old              F
publications, submits the counsel. Though we find some force in the
submission, we do not have any specific data before u; regarding the value
of the said books or with reference to their saleability today. We, there-
fore, leave •.he petitioner to work out his remedies at law in a separate
proceeding. We, however, think that he is entitled to substantial costs.         G
Accordingly, we allow the writ petition and quash the impugned orders of
confiscation. The petitioner shall be entitled to his costs which we quantify
at Rs.10,000/-. All the books seized shall be returned to the petitioner
forthwith.

A.G.                                                        Petition allowed.