STATE OF MAHARASHTRA & ORS.versusSANGHARAJ DAMODAR RUPAWATE & ORS.

                     [2010] 8 S.C.R. 328


A            STATE OF MAHARASHTRA & ORS.
                          v.
          SANGHARAJ DAMODAR RUPAWATE & ORS.
                 (Civil Appeal No. 5205 of 2010)

                           JULY 9, 2010
B
                [D.K. JAIN AND H.L. DATIU, JJ.]

        Code of Criminal Procedure, 1973 - s. 95 - Notification
  under - Forfeiture for of books - On the basis of FIR alleging
c offences u!ss. 153, 153A rlw s. 34 /PC - Notification quashed
  by High Court - On appeal held: _The power uls. 95 has direct
  impact on the right of freedom of speech and expression
  under Article 19(1)(a) of Constitution and impinges on right
  to privacy - Therefore, the provision has to be construed
o strictly and the power thereunder must be exercised only in
  accordance with the procedure laid down therein - It is
  mandatory for such notification to state the ground on which
  the Government formed its opinion - Test of validity of
  notification - Legal aspects to be kept in mind - Discussed
E - On facts, the notification is invalid as the conditions
  statutorily mandated for exercise of powers uls. 95 are lacking
  - The FIR which formed the basis for issuance of notification
  since was quashed by Supreme Court, the notification also
  becomes invalid - Constitution of India, 1950 - Article
  19(1)(a).
F
      State of Maharashtra issued notification u/s. 95(1)
  Cr.P.C., directing forfeiture of every copy of the book titled
  "Shivaji - Hindu King in Islamic India". The notification
  was issued on the basis of an FIR registered u/ss. 153,
G 153A rls. s. 34 IPC. The notification was challenged and
  the same was quashed by High Court. Therefore, the
  instant appeal was filed by the State.

        Dismissing the appeal, the Court
H                               328
STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 329
        DAMODAR RUPAWATE & ORS.

      HELD: 1.1 The power to issue a declaration of            A
forfeiture u/s. 95 Cr.P.C. postulates compliance with twin
essential conditions, viz., (i) the Government must form
the opinion to the effect that such newspaper, book or
document contains any matter, the publication of which
is punishable u/s. 124-A or Section 153-A or Section 153-      B
B or Section 292 or Section 293 or Section 295-A of IPC,
and (ii) the Government must state the grounds of its
opinion. Therefore, it is mandatory that a declaration by
the State Government in the form of notification to the
effect that every copy of the issue of the newspaper,          C
book or document be forfeited to Government, must state
the grounds on which the State Government has formed
a particular opinion. A mere citation of the words of the
Section is not sufficient. The power to forfeit a
 newspaper, book or document is a drastic power                D
 inasmuch as it not only has a direct impact upon the due
exercise of a cherished right of freedom of speech and
 expression as envisaged in Article 19(1 )(a) of the
 Constitution, it also clothes a police officer to seize the
 infringing copies of the book, document or newspaper          E
 and to search the places where they are reasonably
 suspected to be found, again impinging upon the right
 of privacy. Therefore, the provision has to be construed
 strictly and exercise of power under it has to be in the
 manner and according to the procedure laid down
 therein. [Paras 18 and 19] [347-C-F; 347-H; 348-A-B]          F

    1.2 The following legal aspects can be kept in mind
while examining the validity of a notification issued u/s.
95 of Cr.P.C.:
                                                               G
     (i) The statement of the grounds of its opinion by the
State Government is mandatory and a total absence
thereof would vitiate the declaration of forfeiture.
Therefore, the grounds of Government's opinion must be
stated in the notification issued u/s. 95 Cr.P.C. and while    H
    330    SUPREME COURT REPORTS               [2010] 8 S.C.R.

A   testing the validity of the notification the Court has to
    confine the inquiry to the grounds so disclosed;

        (ii) Grounds of opinion must mean conclusion of
    facts on which opinion is based. Grounds must
    necessarily be the import or the effect or the tendency of
8
    matters contained in the offending publication, either as
    a whole or in portions of it, as illustrated by passages
    which the Government may choose. A mere repetition of
    an opinion or reproduction of the Section will not answer
C   the requirement of a valid notification. However, at the
    same time, it is not necessary that the notification must
    bear a verbatim record of the forfeited material or give a
    detail gist thereof;

        (iii) The validity of the order of forfeiture would
D   depend on the merits of the grounds. The High Court
    would set aside the order of forfeiture if there are no
    grounds of opinion. However, it is not the duty of the
    High Court to find for itself whether the book contained
    any such matter whatsoever;
E
         (iv) The State cannot extract stray sentences of
    portions of the book and come to a finding that the said
    book as a whole ought to be forfeited;

        (v) The intention of the author has to be gathered
F   from the language, contents and import of the offending
    material. If the writing is calculated to promote feelings
    of enmity or hatred, it is no defence to a charge u/s. 153-
    A IPC that the writing contains a truthful account of past
    events or is otherwise supported by good authority.
G   Adherence to the strict path of history is not by itself a
    complete defence to a charge u/s. 153-A IPC;

        (vi) Section 95(1) Cr.P.C. postulates that the
    ingredients of the offences stated in the notification
H   should "appear" to the Government to be present. It does
STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 331
        DAMODAR RUPAWAT!i: & ORS.
not require that it should be "proved" to the satisfaction     A
of the Government that all requirements of punishing
Sections, including mens rea, were fully established;

     (vii) The onus to dislodge and rebut the prima facie
opinion of the Government that the offending publication
                                                               B
comes within the ambit of the relevant offence, including
its requirement of intent is on the applicant and such
intention has to be gathered from the language, contents
and import thereof;

     (viii) The effect of the words used in the offending      c
material must be judged from the standards of
reasonable, strong-minded, firm and courageous men,
and not those of weak and vacillating minds, nor of those
who scent danger in every hostile point of view. The class
Of"readers for whom the book is primarily meant WOUid          D
also be relevant for judging the probable consequenc~s
of the writing. [Para 25] [353-B-H; 354-A-H; 355-A-B]

    Harnam Das vs. State of Uttar Pradesh AIR 1961 SC
1662 - followed.
                                                               E
    Narayan Dass lndurakhya vs. State of Madhya Pradesh
1972 (3) SCC 676; The State of Uttar Pradesh vs. Lalai Singh
Yadav 1976 (4) SCC 213; Manzar Sayeed Khan vs. State of
Maharashtra and Anr. 2007 (5) sec 1 - relied on.
                                                               F
    Baragur Ramachandrappa and Ors. vs. State of ·
Karnataka and Ors. 2007 (5) SCC 11 - referred to.

     Ramesh vs. Union of India and Ors. 1988 (1) SCC 668;
Bhagwati Charan Shukla vs. Provincial Government AIR 1947
Nag 1; Nand Kishore Singh and etc. vs. State of Bihar and      G
Anr. AIR 1986 PATNA 98 - cited

   2.1 In the instant case, the conditions statutorily
mandated for exercise of power uls. 95 Cr.P.C. are lacking
                                                               H
    332      SUPREME COURT REPORTS              [2010] 8 S.C.R.


A and, therefore, the action of the Government cannot be
  sustained. It is plain from a bare reading of the·
  notification that the Government's opinion, is based on
  the grounds set out in the preamble to the notification.
  The opinion of the State Government is based on the
B factum of registration of an FIR against the author and
  others for offences punishable u/ss. 153 and 153-A r/w.
  Section 34_ of the IPC. In Manzar Sayeed Khan's case,
  Supreme Court while quashing the same FIR which was
  referred to in the notification has held that the offending
c articles in the book do not constitute an offence u/s. 153-
  A IPC. It is explicit that the entire edifice of the impugned
  notification being based on the registration of the said
  FIR, it gets knocked off by the decision of the Supreme
  Court in Manzar Syeed Khan's case [Paras 26, 27 and 28]
D [355-H; 356-A,' C-D]

          Manzar Sayeed Khan vs. State of Maharashtra and Anr. .
   2007 (5) sec 1 - relied on.

       2.2 It is not correct to say that only the subjective
E satisfaction of the State Government was called for and
  the matter covered by the notification is sufficient and
  cannot be assailed. It is manifest that the notification does
  not identify the communities between which the book
  had caused or is likely to cause enmity. Therefore, it
F cannot be found out from the notification as to which
  communities got outraged by the publication of the book
  or that the said publication had caused hatred and
  animosity between particular communities or groups. The
  statement in the notification to the effect that the bopk is
G "likely to result in breach of peace and public tranquillity
  and in particular between those who revere Shri
  Chhatrapati Shivaji Maharaj and those who may not" is too
  vague a gri:;und to satisfy the afore-enumerated tests.
  Moreover, the High Court has also noted that the
H Advocate General was unable to produce or disclose any
STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 333
        DAMODAR RUPAWATE & ORS.
material or information to find out as to which were the      A
groups based on religion, race, language or religion or
caste or communities who do not revere Shri Chhatrapati
Shivaji Maharaj. The notification of forfeiture, dated 20th
December 2006, does not fulfil the mandatory
requirements of sub-section (1) of Section 95 Cr.P.C. and     B
is, therefore, invalid. [Para 28 and 29] (357-D; 356-F-H;
357-A-B]

                     Case Law Reference:

    AIR 1961 SC 1662        Followed.            Para 20      C

    1912 (3) sec 676        Relied on.           Para 21

    1976 (4) sec 213        Relied on.           Para 22

    2001 (5) sec 1           Relied on.          Para 23
                                                              D
    1988 (1) sec 668        Cited.               Para 23

    AIR 1947 Nag 1          Cited.               Para 23

    2001 (5)' sec 11         Referred to.        Para 24
                                                              E
    AIR 1986 PATNA 98       Cited.               Para 24

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5205 of 2010.

    From the Judgment & Order dated 26.04.2007 of the High    F
Court of Judicature at Bombay in Writ Petition No. 1721 of
2004.

    Shekhar Naphade, Sanjay Kharde, Aparajita Singh, Asha
G. Nair, Ravindra Keshavrao Adsure for the Appellants.
                                                              G
   Prashant Bhushan, Pravin Satale, Indira Uninair, Naresh
Kumar, Kamini Jaiswal for the Respondents.

    The Judgment of the Court was delivered by
                                                              H
    334      SUPREME COURT REPORTS                   [2010] 8 S.C.R.


A         D.K. JAIN, J. 1. Leave granted.

         2. This appeal, by special leave, filed by the State of
    Maharashtra and its functionaries, arises out of the judgment
    dated 26th April, 2007 delivered by the High Court of Judicature
B   at Bombay in Writ Petition No.1721 of 2004. By the impugned
    judgment, passed in an application under Section 96 of the
    Code of Criminal Procedure, 1973 (for short "the Code") read
    with Article 226 of the Constitution of India, the High Court has
    set aside and quashed notification dated 20th December, 2006,
    issued in the name of Governor of Maharashtra in exercise of
C   the powers conferred by sub-section (1) of Section 95 of the
    Code, directing foneiture of every copy of the book captioned
    as "Shivaji - Hindu King in Islamic India" written by one Prof.
    James W. Laine.

D        3. The three writ petitioners, who are respondents No.1, 2
    and 3 herein, are respectively stated to be a well known lawyer
    and a public activist in the Ambedkarite movement, intended
    to mobilize the deprived sections of the society; (ii) a well-known
    film maker, whose documentaries are stated to be known the
E   world over for their artistic finesse, conveying democratic and
    secular message and (iii) a social activist. Respondents No. 4
    to 6 impleaded as such vide this Court's order dated 29th
    August, 2007 respectively are Prof. James W. Laine, the author
    of the book, Oxford University Press, India, the publisher through
F   its Constituted Attorney Mr. Manzar Sayed Khan and Mr. Vinod
    Hansraj Goyal; proprietor of Rashtriya Printing Press, Delhi, the
    printer of the book.

         4. For the purpose of appreciation of the questions raised,
    the foundational facts may be noticed. These are:
G
         On 28th May, 2003, respondent No. 5, the publisher
    entered into an agreement with Oxford University Press, U.S.A.
    for publishing in India a paper-bound book entitled "Shivaji -
    Hindu King in Islamic India" authored by Prof. James W. Laine
H   (respondent No.4), a Professor of Religious Studies, Macalester
 STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 335
   DAMODAR RUPAWATE & ORS. [D.K. JAIN, J.]
College, U.S.A. The said book was originally published by        A
Oxford University Press, Inc., U.S.A. As per the terms of the
agreement, respondent No.5 agreed to reprint the book without
any changes or deletions. In all, 803 copies of the book were
published i.e. 488 copies in June and 315 copies in October,
2003 and was released in July 2003 and 215 copies were sold      B
in the month of July itself.

       On 10th November 2003, the publisher (respondent No.5)
 received a letter from four historians whereby the publisher and
 the author had been asked to retract the objectionable
 statement complained of and tender an apology. Mr. Manzar C
 Sayed Khan, expressed regrets for the said statement and
 informed the objectors that instructions had been issued to all
 his offices in India to immediately withdraw all copies of the
 book from circulation. After withdrawal of the book from
 circulation, a mob at Pune blackened the face of a Sanskrit D
 Scholar Shri Shashikant Bahulkar whose name appeared in the
 acknowledgement of the book, having helped the author, Prof.
 James W. Laine, by providing him with some information during
 his visit to Pune. This incident was widely reported in the press.
 On 28th December, 2003, the author Prof. James W. Laine E
 sent a fax, apologising for the mistake, if any, committed in
 writing the passage and stated that he only was responsible
 for the said statement written in the book, and the publisher was
 not at all responsible for the same. On 5th January, 2004, a mob
 of 100 to 125 persons allegedly belonging to the Sambhaji F
 Brigade ransacked Bhandarkar Oriental Research Institute
 (BORI}, Pune and destroyed a large number of books and rare
 manuscripts. This incident was also widely reported in the
·press.
                                                                 G
     On 7th January, 2004, respondent No.4, the author in an
interview, explained the reason for writing the book and
expressed deep anguish at the destruction of rare manuscripts
and books in BORI, Pune. Four days after the alleged incident
i.e. on 9th January, 2004, the State of Maharashtra, the         H
    336       SUPREME COURT REPORTS                  [2010] 8 S.C.R.


A   appellant herein, registered a first information report (for short
    "FIR") at Deccan Police Station, Pune, against respondents No.
    4 to 6 i.e. Prof. James W. Laine, the author, Mr. Manzar Sayed
    Khan, the publisher and Mr. Vinod Hansraj Goyal, the printer
    of the book under Sections 153, 153-A and 34 of the Indian
s   Penal Code, 1860 (for short "the IPC").

         On 15th January, 2004, in exercise of powers conferred
    by sub-section (1) oi Section 95 of the Code, the Government
    of Maharashtra issued a notification declaring that every copy
    of the aforementioned book shall be forfeited to the
c   Government. The said notification was challenged in the
    Bombay High Coun by respondents No.1 to 3 herein. However,
    during the pendency of the petition, this notification was
    withdrawn and another notification dated 20th December, 2006
    was issued. The notification reads as follows:
D
            "GENERAL ADMINISTRATION DEPARTMENT
                  Mantralaya, Mumbai 400 032,
                 dated the 20th December, 2006
                            NOTIFICATION
E
              CODE OF CRIMINAL PROCEDURE, 1973.

                No. BAP-2004/422/C.R.113/2004/XXXIV. -
          Whereas, Shri Chhatrapati Shivaji Maharaj is revered by
          various sections of the people domiciled in the State of
F         Maharashtra;

                And Whereas, the Oxford University Press having its
          office at YMCA Library Building, Jai Singh Road, New
          Delhi 110 001, has in the Year 2003, published a book,
G         captioned as "SHIVAJI - Hindu King in Islamic India"
          written by one Shri James W. Laine, having ISBN 019
          5667719 containing 127 pages (hereinafter referred to as
          "the said Book");

               And Whereas, the said author has in his said Book,
H
STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 337
  DAMODAR RUPAWATE & ORS. [D.K. JAIN, J.]

  made several derogatory references specified in the           A
  Schedule appended hereto regarding Shri Chhatrapati
  Shivaji Maharaj, in particular about his parentage and the
  Bhosale family to which he belonged;

       And Whereas, publication of the said Book                B
  containing the said derogatory references is prejudicial to
  the maintenance of harmony between different groups and
  has disturbed the public tranquillity;

        And Whereas, the publication and circulation of the
  said Book, has not only already resulted in causing enmity    C
  between the persons who revere Shivaji and other persons
  who may not so revere; but is likely to continuously cause
  such enrmty;

         And Whereas, the said author has in the                D
  "ACKNOWLEDGMENTS" to the said Book has expressed
  gratitude to the "Bhandarkar Oriental Research Institute,
  Pune" and the librarian and other Scholars therein;

        And Whereas, after publication of the said book,
  there was agitation against the said "Bhandarkar Oriental     E
  Research Institute, Pune", by members of an association
  called as "Sambhaji Brigade" and certain other people
  revering Shri Chhatrapati Shivaji Maharaj;

        And Whereas, for publication of the said Book, an       F
  offence under sections 153, 153A read with Section 34
  of the Indian Penal Code has been registered in the
  Deccan Gymkhana Police Station, Pune as C.R. No. 10
  of 2004.

        And Whereas, for the reasons aforesaid, the             G
  Government of Maharashtra is of the opinion that the
  circulation of the said Book containing scurrilous and
  derogatory references against Shri Chhatrapati Shivaji
  Maharaj has resulted in causing enmity between various
                                                                H
    338      SUPREME COURT REPORTS                    (2010] 8 S.C.R.


A         communities and has led to acts of violence and
          disharmony and that any further circulation of the said Book ·
          is likely to result in breach of peace and public tranquillity
          and in particular between those who revere Shri
          Chhatrapati Shivaji Maharaj and those who may not; and
8         cause disturbances to public tranquillity and maintenance
          of harmony between such groups and as such the said
          Book should be forfeited;

               Now, therefore, in exercise of the powers conferred
          by sub-section (1) of Section 95 of the Code of Criminal
c         Procedure, 1973 (2 of 1974), read with Section 21 of the
          General Clauses Act, 1897 (10 of 1897) and of all other
          powers enabling it in that behalf and in supersession of
          the Government Notification, General Administration
          Department, No. BAP-2004/422/C.R.113/2004/XXXIV,
D         dated the 15th January 2004, the Government of
          Maharashtra hereby declares that every copy of the said
          Book shall be forfeited to the Government.

                                 Schedule
E
                1. "So when Shivaji opened his eyes on the world,
          he was nurtured by a mother who had been deserted by
          her husband and left to give birth in a hill fortress 60 kms.
          North of Pune." (Introduction page 4).

F                2. "Looking back from the coronation in 1674, the
          Killing of Afzal Khan in 1659 was not simply an act of
          courage, it was premeditated violence in the service of the
          Brahmanic world order." (Chapter 11, The Epic Hero, page
          25).
G
                 3. 'Thus Shivaji could argue that his family should not
          be classified a Kunbi peasant or shudra clan, but was, in
          fact, related to Rajput, Aryan Kshatriyas. This led to a
          general ambiguity about the status of all Marathas."
          (Chapter IV "The Patriot", page 66).
H
STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 339
  DAMODAR RUPAWATE & ORS. [D.K. JAIN, J.]
         4. "Here we have a kind of Brahmin prejudice that A
  Marathas might make admirably fierce warriors but will not
  have prudence of the Brahmins. Thus Ranade argues that
  the national movement drew on the talents and loyalty of
  all classes, but he maintains the critical importance of the
  Brahmins Ramdas and Dadaji in his narrative. (Chapter B
  IV "The Patriot", page 76).

        5. "In other words, Shivaji's secularism can only be
  assured if we see him as motivated less by patriotism than
  by simple quest of power." (Chapter IV "The Patriot", page   C
  77).

        6. "Shivaji's parents were married under trying
   circumstances.lhey were children, and Jijabai's parents
   opposed the match, considering themselves, as Jadhava
   (Yadavas), to be too aristocratic to accept a groom from D
   the Bhosles, a clan not accepted as one of ninety-six upper
   class Maratha families. (Chapter V "Cracks in the
   Narrative", page 91 ).

        7. "The repressed awareness that Shivaji had an        E
   absentee father is also revealed by the fact that
   Maharashtrians tell jokes naughtily suggesting that his
   guardian Dadaji Konddev was his biological father."
   (Chapter V "Cracks in the Narrative", page 93).

           8. "One could assume, as Sarkar did, that he F
   (Shivaji) agreed to go to Aurangazeb's court in Agra
   because he had hopes (sic) of being made Mughal
   Viceroy of the Deccan. Had he received such an honour
   (sic), it is doubtful that he would have planned a coronation
   eight years later, but would have conducted his -career G
   much as his father did as an Aadil Shahi noble and
   Governor of Bangalore." (Chapter V "Cracks in the
   Narrative", page 99).

                                                               H
    340       SUPREME COURT REPORTS                  [2010] 8 S.C.R.


A         By order and in the name of the Governor of Maharashtra,
                                            MANISHA MHAISKAR,
                                    Joint Secretary to Government."
          5. In view of the said development, with the leave of the
    Court, the petition was amended and challenge to notification
8
    dated 20th December, 2006 was laid mainly on the grounds
    that: (1) there was no material to show that the publication of
    the book had resulted in disturbance of public tranquillity or
    maintenance of harmony between various groups as set out
    therein, and (2) the publication does not disclose any offence
C   under Section 153-A of the IPC. Finding substance in both the
    grounds, as stated above, by the impugned judgment, the High
    Court has quashed and set aside the notification dated 20th
    December, 2006 by observing thus:

D         "We called upon the learned Associate Advocate General
          to show us any material in their possession which would
          indicate, that the publication of the book is causing enmity
          between various communities and which were those
          communities. The learned Associate Advocate General
E         was unable to produce or disclose any such material or
          which were the groups based on religion, race, language
          or religion or caste or communities who do not revere
          Shree Chhatrapati Shivaji Maharaj. The only answer was,
          that the order is based upon the grounds set out in the
          notification. In our opinion, to make a legal order under
F
          Section 95 of the Code of Criminal Procedure, apart from
          the fact that offence as set out therein must be indicated,
          the notification must disclose the grounds based on which
          the State has formed an opinion, that the author by his
          publication sought to promote or attempted to promote
G
          disharmony or feeling of enmity between various groups
          as set out therein. All that is pointed out to us is, that
          subsequent to the publication of the book, there was an
          agitation against Bhandarkar Oriental Research Institute,
          Pune by members of an Association called as "Sambhaji
H
STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 341
  DAMODAR RUPAWATE & ORS. [D.K. JAIN, J.]
    Brigade" and certain other people revering Shree A
    Chhatrapati Shivaji Maharaj. We pointedly asked the
    learned Associate Advocate General whether the
    employees of the Bhandarkar Institute, Pune constituted
    that group or class. It was fairly conceded before us that it
    was not so. Whether a group of employees would B
    constitute a group is not required to be answered. In other
    words, there is nothing on record to show that the
    publication was likely to promote disharmony or feeling of
    enmity between various groups, as likely to cause
    disturbance to public tranquillity and maintenance of c
    harmony between various groups. Bhandarkar Oriental
    Research Institute Pune, enjoys an international reputation
    as a research institute in the State of Maharashtra. It was
    unfortunate that for whatever reasons the said institute was
    vandalized and precious documents destroyed History is
                                                                  0
    the loser."

     6. Being aggrieved, the State of Maharashtra and its
functionaries are before us in this appeal.

    7. We have heard Mr. Shekhar Naphade, learned Senior         E
Counsel appearing on behalf of the petitioners; Mr. Prashant
Bhushan, learned counsel appearing on behalf of the
respondents No.1 to 3 and Ms. Kamini Jaiswal, learned counsel
appearing on behalf of the respondents No.4 to 6.

      8. Prefacing his arguments with the historical perspective F
of rivalry between Brahmins and Marathas, both at the social
and the political level, Mr. Naphade submitted that some of the
words used in the book and culled out in the notification under
different items clearly try to resurrect the social and political
tensions between Brahmins and Marathas and try to drive a G
wedge between the said two communities. It was submitted
that the notification in question clearly sets out that the book
contains derogatory references to Chhatrapati Shivaji Maharaj
and is prejudicial to the maintenance of harmony between
different groups and that in fact it had disturbed the social H
    342 - SUPREME COURT REPORTS                       [2010] 8 S.C.R.


A  tranquillity of the State. It was contended that the notification has
   to be read in its entirety and if it is so read, it clearly refers to
   threat to maintenance of harmony between two groups, which
   is clearly demonstrated by an attack on Bhandarkar Institute by
   Sambhaji Brigade as a sequel to the publication and circulation
B pf the book. While candidly conceding that the operative part
  ,of the notification does not specifically refer to conflict between
   Brahmins and Marathas, learned counsel urged that the
   notification has to be read in the historical background and if it
   is so read, the only possible conclusion is that the two groups
c  referred to in the notification mean Brahmins on the one hand
   and Marathas on the other. According to the learned counsel,
   it is a settled rule of interpretation that while construing any
   notification of this nature, the historical background can be
   taken into account.

D        9. Mr. Naphade also contended that in a criminal case the
    burden of establishing that a case under Sections 153 and
    153-A of the IPC is made out, is on the State, whereas, while
    judging the action of the Government under Section 95 of the
    Code, the parameters are qualitatively different inasmuch as
E   there is a presumption that the notification is valid and the
    burden to show that the decision of the Government to forfeit
    the book is without any foundation, is on the writ petitioners.

         10. Learned counsel also argued that the subjective
F   satisfaction of the Government as contemplated in Section 95
    of the Code cannot be canvassed either in an application under
    Section 96 of the Code or in a writ petition under Article 226
    of the Constitution. According to the learned counsel, neither
    the High Court nor this Court can sit in appeal over the
G   Government's decision to forfeit the book. Relying on the
    decision of the Bombay High Court in the case of Gopal
    Vinayak Godse Vs. The Union of India and Others 1 , learned
    counsel submitted that if a book has a tendency to create a rift
    between the two different communities, then Article 19(1)(a) of
H   1.   Air 1971 Bombay 56.
  STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 343
    DAMODAR RUPAWATE & ORS. [D.K. JAIN, J.]

 the Constitution cannot be pressed into service, even on the             A
 ground that the book contains historical truth.

        11. As regards the concession of the counsel for the State
 before the High Court, as recorded in the impugned judgment,
 it is pleaded in the written submissions that the concession so
                                                                           8
 made was clearly under misconception of law and facts. It is
 pleaded that the concession made by an Additional Advocate
 General is not binding on the Government. In support of the said
 stand, reference is made to the decisions of this Court in M. T.
 Khan and Others Vs. Govt. of A.P. and Others2 and Periyar
 and Pareekanni Rubbers Ltd. Vs. State of Kerala 3 • Learned C
 counsel also placed reliance on the deCision of this Court in
 Baragur Ramachandrappa and Others Vs. State of Karnataka
 and Others" in support of his proposition t~at Sections 95 and
 96 of the Code, when read together, are clearly preventive in
 nature and are designed to pre-empt any disturbance to publio- D
 order and, therefore, if a forfeiture is called for in public interest, ·
 it must have pre-eminence over any individual interest.

        12. Per contra, Mr. Prashant Bhushan, while emphasizing
  that the book in question, which makes hi~torical investigation E
  to discover and interpret Shivaji, the great hero of 17th Century
  in India and Maharashtra in particular, is a scholarly, historical
  piece about a much revered and admired historical figure of
  India, vehemently submitted that even if there were any critical
  comments about Shivaji Maharaj, banning the book would strike F
· at the very root of the fundamental right to freedom of
  expression in a democracy. Jt was asserted that there is nothing
  disparaging or malicious about Shivaji and his parents in the
  book as alleged in the notification. Learned counsel maintained
  that there is no scurrilous matter in the book which is prejudicial . G
  to the maintenance of public tranquillity along with law and order
  and, in any case, it is the primary responsibility of a Government
 2.   (2004) 2 sec 267.
 3.   (1991) 4 sec 195.
 4.   (2007) s sec 11.                                                    H
    344       SUPREME COURT REPORTS                 [2010] 8 S.C.R.


A   to prevent mischief-maker from taking the law into their own
    hands. In support of the proposition that it is for the State to
    maintain public order and the books, films, etc. cannot be
    banned merely based on an apprehension of clashes, learned
    counsel placed reliance on the decision of this Court in S.
B   Rangarajan Vs. P. Jagjivan Ram and Others5 •

          13. Learned counsel also urged that on facts in hand, the
    conditions requisite for invoking Section 95 of the Code are
    not fulfilled inasmuch as apart from the fact that detailed
  . grounds have not been provided to the respondents, it is
C evident from the notification that all that has been stated therein
    is that the book contains scurrilous and derogatory references
    to Shri Chhatrapati Shivaji Maharaj and that has caused enmity
    between various communities and has led to acts of violence
    and disharmony and that any further circulation of the book is
D likely to result in breach of peace and public tranquillity and in
    particular, between those who revere Shri Chhatrapati Shivaji
    Maharaj and those who may not. It was also pleaded that the
    notification is neither based on grounds that offence under
    Section 153-A of the IPC was made out nor it has been shown
E that how the references are derogatory or scurrilous and above
    all, even the communities, who were alienated from each other
    or whose religious beliefs were hurt, have not been named or
    identified.

          14. Learned counsel then contended that paragraphs in the
F
    book, complained of, do not constitute an offence either under
    Section 153 or under Section 153-A of the IPC as in the
    notification there is no allegation that the book has caused or
    likely to cause enmity between different classes of the society
G   or has created a situation of hatred between or among
    particular religions/castes/social groups as contemplated in
    Section 153-A of the IPC. It is pointed out that the notification
    does not even identify the communities, which, according to the
    Government, were allegedly alienated from each other or
H   5.   (1989) 2 sec 574.
  STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 345
    DAMODAR RUPAWATE & ORS. [D.K. JAIN, J.]

whose religious beliefs had been wounded. Reliance was                    A
placed on the decision of this Court in Manzar Sayeed Khan
Vs. State of Maharashtra and Another6, relating to the same
bool<, wherein, while holding that the book did not make out an
offence under Section 153-A of the IPC, the FIR registered
against the Author of the book (respondent No.4) was quashed.             B
Reliance was also placed on the decisions of this Court in Bilal
Ahmed Kaloo Vs. State of A.P. 7 and Harnam Das Vs. State
of Uttar Pradesh 8 . Learned oounsel thus asserted that there
was no justification whatsoever for ordering forfeiture of the
book and the impugned notification is a gross misuse of                   c
Section 95 of the Code.

      15. Before evaluating the rival contentions, a brief
 reference to the relevant provisions of the Code and the
 precedents on the point would be necessary.
                                                                          D
        16. Section 95 of the Code reads as follows:

        "95. Power to declare certain publications forfeited and
        to issue search-warrants for the same.-(1) Where-

        (a) any newspaper, or book, or                                    E

        (b) any document,

        wherever printed, appears to the State Government to
        contain any matter the publication of which is punishable
                                                                          F
        under section 124A or section 153A or section 1538 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,        G
        and every copy of such book or other document to be
        forfeited to Government, and thereupon any police officer

 6.    (2007) 5 sec 1.
· 7.   (1997) 7 sec 431.
 8.    AIR 1961 SC 1662.                                                  H
    346         SUPREME COURT REPORTS                  [2010] 8 S.C.R.

A         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
B         reasonably suspected to be.

          (2)    In this section and in section 96,-

                  (a) "newspaper" and "book" have the same
                  meaning as in the Press and Registration of Books
C                 Act, 1867 (25 of 1867);

                  (b) "document" includes any painting, drawing or
                  photograph, or other visible representation.

          (3)   No order passed or action taken under this section
D         shall be called in question in any Court otherwise than in
          accordance with the provisions of section 96."

        17. Section 96 of the Code, relevant for the purpose, is
    as under:
E
          "96. Application to .High Court to set aside declaration of
          forfeiture. -(1) Any person having any interest in any
          newspaper, book or other document, in respect of which
          a declaration of forfeiture has been made under section
          95, may, within two months from the date of publication in
F
          the Official Gazette of such declar!'ltion, apply to the High
          Court to set aside such declaration on the ground that the
          issue of the newspaper, or the book or other document,
          in respect of which the declaration was made, did not
          contain any such matter as is referred to in sub-section (1)
G         of section 95.

          (2)
          (3)
H
 STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 347 ·
   DAMODAR RUPAWATE & ORS. [D.K. JAIN, J.]

    (4) The High Court shall, if it is not satisfied that the issue   A
    of the newspaper, or the book or other document, in
    respect of which the application has been made,
    contained any such matter as is referred to in sub-section
    (1) of section 95, set aside the declaration of forfeiture.
                                                                      B
    (5)                                                          "

     18. Section 95 of the Code is an enabling provision, which,
in the circumstances enumerated in the Section, empowers the
State Government to declare that copy of a newspaper, book
or document be forfeited to the Government. It is evident that C
the provision deals with any newspaper, book or document
which is printed. The power to issue a declaration of forfeiture
under the provision postulates compliance with twin essential
conditions, viz., (i) the Government must form the opinion to the
effect that such newspaper, book or document contains any D
matter, the· publication of which is punishable under Section
124-A or Section 153-A or Section 153-8 or Section 292 or
Section 293 or Section 295-A of the IPC, and. (ii) the
Government must !':tate the grounds of its ,opinion. Therefore, it
is mandatory that a declaration by the State Government in the E
form of notification, to the effect that every copy of the issue of
the newspaper, book or document be forfeited to Government,
must state the grounds on which the State Government has
formed a particular opinion. A mere citation of the words of the
Section is not sufficient. Section 96 of the Code entitles any F
person having any interest in any newspaper, book or other
document, in respect of which a declaration of forfeiture is made
under Section 95 of the Code, to move the. High Court for
setting aside the declaration on the ground that it does not
contain any such matter as is referred to in sub-section (1) of G
Section 95.

     19. Undoubtedly, the power to forfeit a newspaper, book
or document is a drastic power inasmuch as it not only has a
direct impact upon the due exercise of a cherished right of
freedom of speech and expression as envisaged- in Article -·"H
    348       SUPREME COURT REPORTS                     [2010] 8 S.C.R.


A   19(1)(a) of the Constitution, it also clothes a police officer to
    seize the infringing copies of the book, document or newspaper
    and to search places where they are reasonably suspected to
    be found, again impinging upon the right of privacy. Therefore,
    the provision has to be construed strictly and exercise of power
B   under it has to be in the manner and according to the procedure
    laid down therein.

         20. The scope and width of a somewhat similar provision
    contained in Section 99A of the Code of Criminal Procedure,
    1898 (for short "the 1898 Code") was examined by a
C   Constitution Bench of this Court in Harnam Das Vs. State of
    Uttar Pradesh (supra). Speaking for the majority, A.K. Sarkar,
    J. held that in that case though the order of forfeiture passed
    by the Government had set out its opinion that the books
    contained matters the publication of which was punishable
D   under Sections 153-A and 295-A of the IPC but it did not state,
    as it should have, the grounds of that opinion. Striking down
    the order of forfeiture, the learned judge observed as under:

          "(4) Two things appear clearly from the terms of this
E         Section. The first thing is that an order under it can be
          made only when the Government forms a certain opinion.
          That opinion is that the document concerning which the
          order is proposed to be made, contains "any matter the
          publication of which is punishable under Section 124-A or
          Section 153-A or Section 295-A of the Penal Code."
F
          Section 124-A deals with seditious matters, Section 153-
          A with matters promoting enmity between different classes
          of Indian citizens and Section 295-A with matters insulting
          the religion or religious beliefs of any class of such citizens.
          The other thing that appears from the Section is that the
G
          Government has to state the grounds of its opinion. The
          order made in this case, no doubt, stated that in the
          Governr-.ent's opinion the books contained matters the
          publication of which was punishable under Sections 153-
          A and 295-A of the Penal Code. It did not, however, state,
H
STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 349
  DAMODAR RUPAWATE & ORS. [D.K. JAIN, J.]

      as it should have, the grounds of that opinion. So it is not   A
      known which communities were alienated from each other
      or whose religious beliefs had been wounded according
      to the Government, nor why the Government thought that
      such alienation or offence to religion had been caused."
                                                                     B
Thus, the Court observed that in the notification it was not
known which communities were alienated from each other or
whose religious beliefs had been wounded and why the
Government thought that such alienation or offence to religion
had been caused. It was held that if the grounds of opinion are C
not stated, the order of forfeiture must be set aside, because
then the Court cannot be satisfied that the grounds given by the
Government justify the order. Inter alia observing that it is the
duty of the High Court to set aside an order of forfeiture if it is
not satisfied that the grounds on which the Government formed
its opinion could justify that opinion, the Court also noted that it D
is not the duty of the High Court to find for itself whether the
book contained any such matter.

     21. Significance of setting out the grounds of the opinion
of the Government was again emphasised in Narayan Dass               E
lndurakhya Vs. State of Madhya Pradesh 9 . It was observed
that grounds must be distinguished from the opinion, as
grounds of the opinion must mean the conclusion of facts on
which the opinion is based. The Court said:

      "6.   There is a considerable bodv of statutory provisions F
      which enable the State to curtail the liberty of the subject
      in the interest of the security of the State or forfeit books
      and documents when in the opinion of the Government, they
      promote class hatred, religious intolerance, disiiffection
      against the State, etc. In all such cases, instances of some G
      whereof are given below the State Government has to give
      the grounds of its opinion. Clearly the grounds must be
      distinguished from the opinion. Grounds of the opinion
      must mean the conclusion of facts on which the opinion is
9.   (1972) 3 sec 676.                                               H
    350       SUPREME COURT REPORTS                   [2010] 8 S.C.R.


A         based. There can be no conclusion of fact which has no
          reference to or is not ex facie based on any fact."

    It was also observed that mere repetition of an opinion or
    reproduction of the Section without giving any indication of the
    facts will not answer the requirement of a valid notification.
8
        22. Section 99A of the 1898 Code again came up for
    consideration before a bench of three Judges of this Court in
    The State of Uttar Pradesh Vs. Lalai Singh Yadav. 10
    Emphasizing the importance of furnishing of grounds by the
C   Government for its opinion, speaking for the bench, V.R.
    Krishna Iyer, J. observed as under:

          "8. A drastic restriction on the right of a citizen when
          imposed by statute, calls for a strict construction, especially
D         when quasi-penal consequences also ensue. The imperial
          authors of the Criminal Procedure Code have drawn up
          Section 99A with concern for the subject and cautionary
          mandates to government. The power can be exercised only
          in the manner and according to the procedure laid down
          by the law. Explicitly the section compels the government
E
          to look at the matter which calls for action to consider it
          as to the clear and present danger it constitutes in the
          shape of promoting feelings of enmity and hatred between
          different segments of citizens or as to its strong tendency
          or intendment to outrage the religious feelings of such
F         segments (there are other proclivities also stated in the
          section with which we are not concerned for the present
          purpose) and, quite importantly, to state the grounds of its
          opinion. We are concerned with the last ingredient. When
          the section says that you must state the grounds it is no
G         answer to say that they need not be stated because they
          are implied. You do not state a thing when you are
          expressively silent about it. To state 'is to declare or to set
          forth, especially in a precise, formal or authoritative

H   10. (1976) 4 sec 213.
STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 351
  DAMODAR RUPAWATE & ORS. [D.K. JAIN, J.]
    manner; to say (something), especially in an emphatic way A
    ; to assert' (Random House Dictionary). The conclusion is
    inescapable that a formal authoritative setting forth of the
    grounds is statutorily mandatory ....."

While reiterating that a formal authoritative setting forth of the
                                                                    8
grounds is statutorily mandatory and the Court cannot make a
roving enquiry beyond the grounds set forth in the order and if
the grounds are left out altogether then there is nothing availaQ!a
to the Court to examine and the notification must fail, the Court
also observed that the grounds or reasons linking the primary
facts with the forfeiter's opinion need not be stated at 'learned C
length'. In some cases, a laconic statement may be enough; in
others a longer ratiocination may be proper. The order may be
brief but it cannot be blank as to the grounds which form the
basis of the opinion on which the Government relies. It was also
observed that since an order of forfeiture constitutes a drastic D
restriction on the rights of a citizen, the relevant provisions of
the Code have to be strictly construed.

     23. At this juncture, it would be appropriate to refer to- the
decision of this Court, to which one. of us (D.K. Jain, J.) was a     E
party, in Manzar Sayeed Khan       Vs.  State of Maharashtra &
Another (supra), which arose on account of registration of the
FIR against the Author, Publisher and Printer, respondents No.4
to 6 in this appeal, on publication and distribution of the book
"Shivaji - Hindu King in Islamic India", the subject matter of the    F
present case. Quashing the FIR against the author, this Court
observed that the intention to cause disorder or incite people
to violence is the sine qua non of the offence under Section
153-A of the IPC and the prosecution has to prove prima facie
the existence of mens rea on the part of the accused. It was,         G
inter alia, observed that the intention of the publication has to
be judged primarily by the language of the book, the
circumstances in which it was written and published; the matter
complained of must be read as a whole and one cannot rely
on strongly worded and isolated passages for proving the              H
    352        SUPREME COURT REPORTS                [2010] 8 S.C.R.


A   charge nor indeed can one take a sentence here and a
    sentence there and connect them by a meticulous process of
    inferential reasoning. Reliance was placed on the decision of
    this Court in Ramesh Vs. Union of India and others 11 , wherein
    the observations of Vivian Bose, J. (as he then was) in
B   Bhagwati Charan Shukla Vs. Provincial Government12 , to the
    effect that "the effect of the words must be judged from the
    standards of reasonable, strong-minded, firm and courageous
    men, and not those of weak and vacillating minds, nor of those
    who scent danger in every hostile point of view" were approved.
c       24. Recently in Baragur Ramachandrappa and Others
   Vs. State of Karnataka and Others (supra), this Court again
  considered the scope of Section 95 of the Code. Approving
  the interpretation of Sections 95 and 96 of the Code given by
  a special bench of the Patna High Court in Nand Kishore Singh
D & etc. Vs. State of Bihar and Another13 , wherein it was
  observed that it would be fallacious to mathematically equate
  the proceedings under Sections 95 and 96 of the Code with a
  trial under Section 295-A of the IPC with the accused in the
  dock, the Court went on to elucidate that Section 95 did not
E require that it should be "proved" to the satisfaction of the State
  Government that all requirements of the punishing Sections
  including mens rea were fully established and all that Section
  95(1) required was that the ingredients of the offence should
  "appear" to the Government to be present. While observing that
F Section 95 of the Code exemplifies the principle that freedom
  of speech and expression is not unfettered, this Court
  commended that freedom must be available to all and no
  person has a right to impinge on the feelings of others on the
  premise that his right to freedom of speech remains
G unrestricted and unfettered. It cannot be ignored that India is a
  country with vast disparities in language, culture and religion

    11   (1988) 1 sec 668.
    12. AIR 1947 Nag 1.
H   13. AIR 1986 Patna 98.
STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 353
  DAMODAR RUPAWATE & ORS. [D.K. JAIN, J.]

and unwarranted and malicious criticism or interference in the          A
faith of others cannot be accepted.

      25. It would thus, appear that no inflexible guidelines can
be laid down to test the validity of a notification issued under
Section 95 of the Code. Nonetheless the following legal aspects
                                                                        8
can be kept in mind while examining the validity of such a
notification:

      (i}     The statement of the grounds of its opinion by the
              State Government is mandatory and a total
              absence thereof would vitiate the declaration of C
              forfeiture. Therefore, the grounds of Government's
              opinion must be stated in the notification issued
              under Section 95 of the Code and while testing the
              validity of the notification the Court has to confine
              the inquiry to the grounds sq disclosed;              D

      (ii)    Grounds of opinion must mean conclusion of facts
              on which opinion is based. Grounds must
              necessarily be the import or the effect or the
              tendency of matters contained in the offending            E
              publication, either as a whole or in portions of it, as
              illustrated by passages which Government may
              choose. A mere repetition of an opinion or
              reproduction of the Section will not answer the
              requirement of a valid notification. However, at the      F
              same time, it is not necessary that the notification
              must bear a verbatim record of the forfeited
              material or give a detail gist thereof;

      (iii)   The validity of the order of forfeiture would depend
              on the merits of the grounds. The High Court would G
              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
              given by the Government justify the order. However,
              it is not the duty of the High Court to find for itself H
    354      SUPREME COURT REPORTS                    [2010] 8 S.C.R.


A                 whether the book contained any such matter
                  whatsoever;

          (iv)    The State cannot extract stray sentences of portions
                  of the book and come to a finding that the said
                  book as a whole ought to be forfeited;
8
          (v)     The intention of the author has to be gathered from
                  the language, contents and import of the offending
                  material. If the allegations made in the offending
                  article are based on folklore, tradition or history
c                 something in extenuation could perhaps be said for
                  the author;

          (vi)    If the writing is calculated to promote feelings of
                  enmity or hatred, it is no defence to a charge under
D                 Section 153-A of the IPC that the writing contains
                  a truthful account of past events or is otherwise
                  supported by good authority. Adherence to the
                  strict path of history is not by itself a complete
                  defence to a charge under Section 153-A of the
                  IPC;
E
          (vii)   Section 95(1) of the Code postulates that the
                  ingredients of the offences stated in the notification
                  should "appear" to the Government to be present.
                  It does not require that it should be "proved" to the
F                 satisfaction of the Government that all requirements
                  of punishing sections, including mens rea, were
                  fully established;

          (viii) The onus to dislodge and rebut the prima facie
G                opinion of the Government that the offending
                 publication comes within the ambit of the relevant
                 offence, including its requirement of intent is on the
                 applicant and such intention has to be gathered
                 from the language, contents and import thereof;
H
STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 355
  DAMODAR RUPAWATE & ORS. [D.K. JAIN, J.]
      (ix)   The effect of the words used in the offending A '
             material must be judged from the standards of
             reasonable, strong-minded, firm and courageous
             men, and not those of weak and vacillating minds,
             nor of those who scent danger in every hostile point
             of view. The class of readers for whom the book is B
             primarily meant would also be relevant for judging
             the probable consequences of the writing.

     26. Having assessed the validity of notification dated 20th
December 2006 on the touchstone of the afore-stated
principles, we are of the opinion that in the present case, the    c
conditions statutorily mandated for exercise of power under
Section 95 of the Code are lacking and therefore, the action
of the Government cannot be sustained .
                                •
      27. It is plain from a bare reading of the notification that D
the Government's opinion, that the circulation of the said book,
containing scurri.lous and derogatory references to Shri
Chhatrapati Shivaji Maharaj, has resulted in causing enmity
between various communities ~nd has led to acts of violence
and disharmony and that any further circulation of the said book E
is likely to result in breach of peace and public tranquillity, is.
based on the grounds set out in the preamble to the notification,
viz., the author has made several derogatory references,
specified in the Schedule appended to the notification,
regarding Shri Chhatrapati Shivaji Maharaj, in particular about F
his parentage and the Bhosale family; the said derogatory
references are prejudicial to the maintenance of harmony
between different groups and has disturbed the public
tranquillity, the publication and circulation of the book has not
only already resulted in causing enmity between the persons G
who revere Shri Chhatrapati Shivaji Maharaj and other persons
who may not so revere but is likely to continuously cause such
enmity and that for publication of the book an FIR for offences
under Sections 153 and 153-A read with Section 34 of the IPC
has been registered against the author.
                                                                    H
    356      SUPREME COURT REPORTS                   [201 O] 8 S.C.R.


A          28. Thus, being one of the essential conditions for exercise
    of power under Section 95 of the Code, that the publication
    contains matter which is an offence under various provisions
    of the IPC, the opinion of the State Government is based on
    the factum of registration of an FIR against the author and others
8   for offences punishable under Sections 153 and 153-A read
    with Section 34 of the IPC. As stated above, vide order dated
    5th April, 2007, in Manzar Sayeed Khan's case (supra}, this
    Court while quashing the same FIR which was registered
    against Prof. James W. Laine and others and was referred to
C   in the notification has held that the offending articles in the book
    do not constitute an offence under Section 153-A of the IPC. It
    is explicit that the entire edifice of the impugned notification ·
    being based on the registration of the said FIR, it gets knocked
    off by the decision of this Court. Furthermore, it is stated that
    "the Government of Maharashtra is of the opinion that the
0
    circulation of the said book containing scurrilous and derogatory
    references against Shri Chhatrapati Shivaji Maharaj has
    resulted in causing enmity between various communities and
    has led to acts of violence and disharmony and that any further
    circulation of the said book is likely to result in breach of peace
E   and public tranquillity and in particular between those who
    revere Shri Chhatrapati Shivaji Maharaj and those who may not;
    and cause disturbances to public tranquillity and maintenance
    of harmony between such groups and as such the said book
    should be forfeited". We are unable to persuade ourselves to
F   agree with learned counsel for the appellants that only the
    subjective satisfaction of the State Government was called for
    and the matter covered by the notification is sufficient and
    cannot be assailed. It is manifest that the notification does not
    identify the communities between which the book had caused
G   or is likely to cause enmity. Therefore, it cannot be found out
    from the notification as to which communities got outraged by
    the publication of the book or it had caused hatred and
    animosity between particular communities or groups. We feel
    that the statement in the notification to the effect that the book
H   is "likely to result in breach of peace and public tranquillity and
 STATE OF MAHARASHTRA & ORS. v. SANGHARAJ 357
   DAMODAR RUPAWATE & ORS. [D.K. JAIN, J.]
in particular between those who revere Shri Chhatrapati Shivaji     A
Maharaj and those who may not" is too vague a ground to
satisfy the afore-enumerated tests. Moreover, the High Court
has also noted that the learned Associate Advocate General
was unable to produce or disclose any material or information
to find out as to which were the groups based on religion, race,    B
language or religion or caste or communities who do not revere
Shri Chhatrapati Shivaji Maharaj. If that be so, no fault can be
found with the finding of the High Court to the effect that there
is nothing on record on the basis whereof the Government could
form the opinion that the book was likely to promote disharmony     c
or feeling of enmity between various groups or likely to cause
disturbance to public tr9nquillity and maintenance of harmony
between various groups.

     29. In view of the foregoing, we are in agreement with the
High Court that the notification of forfeiture, dated 20th          D
December 2006, does not fulfil the mandatory requirements of
sub-section (1) of Section 95 of the Code and is, therefore,
invalid. No ground is made out warranting our interference with
the impugned judgment. The appeal is dismissed accordingly,
leaving the parties to bear their own costs.                        E

K.K.T.                                      Appeal dismissed .




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