R. S. Seth Gopikisan Agarwal v. R. N. Sen, Assistant Collector of Customs and Central Excise, Raipur — 1967 DIGILAW 2 (BOM)

Judgement The following Judgment of the Court was delivered by SUBBA RAO, C. J. : This appeal by certificate raises the question whether the search of the premises of the appellant and the seizure of the articles and the documents found therein was valid. 2. The relevant facts are as follows: The appellant is a mining proprietor and holds several manganese mines in different States. He has also been doing business in many articles apart from being an exporter of manganese ore. On information alleged to have been received to the effect that the appellant was in possession of a large quantity of undeclared gold, the Assistant Collector of Customs and Central Excise, Raipur, issued an authorization under R. 126(L) (2) of the Defence of India (Amendment) Rules, 1963 (Gold Control Rules), hereinafter called the Rules, for searching the premises of the appellant. Pursuant to that authorization, the appellant's premises were searched and as a result of the search gold and other articles, foreign currency and other documents were seized. The appellant filed a petition under Art. 226 of the Constitution in the High Court of Bombay (Nagpur Bench) challenging the validity of the said search and the seizure of the articles and documents belonging to him. The petition was heard along with similar petitions filed by other persons whose premises were likewise searched and goods and documents seized therefrom. The High Court dismissed all the petitions. The several petitioners before the High Court, along with the appellant, preferred appeals to this Court and the appeals other than that filed by the appellant were heard by this Court: see Durga Prasad v. H. R. Gomes, Superintendent (Prevention), Central Excise, Nagpur, AIR 1966 SC 1209 . Therein this Court considered the various contentions raised by them and dismissed the same. For one reason or other, this appeal was not heard along with them. 3. Obviously the points covered by that judgment cannot be permitted to be reagitated in this appeal. Accepting that position, learned counsel for the appellant raised before us only the questions that were not decided by the said judgment. We shall now proceed to consider the questions that are peculiar to this appeal. 4. The contention that the Assistant Collector and the officer authorized by him to make the search acted with mala fides has no substance. The High Court considered the evidence and rejected it. We shall now proceed to consider the questions that are peculiar to this appeal. 4. The contention that the Assistant Collector and the officer authorized by him to make the search acted with mala fides has no substance. The High Court considered the evidence and rejected it. We do not see any justification to take a different view on the material placed before us. 5. The second contention is that under S. 105 of the Customs Act, hereinafter called the Act, the Assistant Collector shall have reason to believe that some goods are secreted before he can authorize any officer of Customs to search for them or the relevant documents, but the authorization given by the Assistant Collector to the Customs Officer did not say that he had reason to Relieve so. 6. The relevant part of the authorization reads thus: "Whereas information has been laid before me of the suspected commission of offence under S. 11 read with S. 111 of the Customs Act 1962 (52 of 1962) and it has been made to appear that the production of contraband goods and documents relating thereto are essential to the enquiry about to be made in the suspected offence.......... Though the words "reason to believe" are not in terms embodied in the authorization, the phraseology used in effect and substance meant the same thing. 7. The next contention is that on a reasonable construction of the said provision it should be held that the Assistant Collector of Customs should not only give reasons for his belief but also the particulars of the nature of the goods and of the documents, for, if the reasons and the particulars are not given, the officer authorized may make a roving search of the house which is not in the contemplation of the said section. This argument may be dealt with in two parts. In terms S. 105 of the Act does not say that the Assistant Collector shall give reasons. The power conferred on him under S. 105 is not subject to any such condition. Though he cannot make a search or authorize any officer to make a search unless he has reason to believe the existence of the facts mentioned in the section, the section does not compel him to give reasons. The power conferred on him under S. 105 is not subject to any such condition. Though he cannot make a search or authorize any officer to make a search unless he has reason to believe the existence of the facts mentioned in the section, the section does not compel him to give reasons. While it may be advisable, and indeed proper, for him to give reasons, the non-mention of reasons in itself does not vitiate the order. Nor can we agree with the appellant that the particulars of the nature of the goods and of the documents should be given in the authorization. Obviously, no question of giving of particulars arises if he himself makes the search, but if he authorizes any officer to do so, he cannot give the particulars of the documents, for they will be known only after the search is made. Doubtless he has to indicate broadly the nature of the documents and the goods in regard to which the officer authorized by him should make a search, for without that his mandate cannot be obeyed. The authorization issued by the Assistant Collector of Customs in this case clearly mentioned that on information received it appeared that the appellant was in possession of contraband goods and documents relating thereto and also described the office and the residential premises wherein those goods and documents would be found. In the circumstances of the case we are satisfied that the specifications are sufficient to enable the officer authorized to make the search. 8. The next argument is based upon the provisions of S. 110 of the Act. Under S. 110 (3.) of the Act only a proper officer can seize any documents or goods which in his opinion will be useful for or relevant to any proceedings under the Act. "Proper officer" has been defined by S. 2 (34) of the Act thus: " "Proper Officer," in relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the Collector of Customs". It is contended that, on a true construction of S. 2 (34) of the Act, the Collector of Customs should himself seize the goods, that he has no power to authorize another to do so and that in this case the Collector of Customs did not make the seizure. It is contended that, on a true construction of S. 2 (34) of the Act, the Collector of Customs should himself seize the goods, that he has no power to authorize another to do so and that in this case the Collector of Customs did not make the seizure. This argument, turns upon the terms of the said provision;' It is said that the Board only can assign functions to another officer and that the Coin lector of Customs cannot assign but can function personally. The controversial expression in S. 2 (34) is "by the Board or the Collector of Customs". The clause "who is assigned those functions", the argument proceeds, refers only to the Board and not to the Collector. A fair reading of the provision, in our view, is that the preposition "by" refers both to the Board and the Collector. Both the Board and the Collector of Customs can assign functions to an officer of Customs. 9. It is then contended that the search made was void inasmuch as in making the search the relevant provisions of Code of Criminal Procedure had not been complied with. This argument is based upon S. 105(2) of the Act. It reads: 'The provisions of the Code of Criminal Procedure, 1898, relating to searches shall, so far as may be, apply to searches under this section subject to the modification that sub-s. (5) of S. 165 of the said Code shall have effect as if for the word "Magistrate", wherever it occurs, the words "Collector of Customs" were substituted." Now, if we look at the Code of Criminal Procedure. S. 165 deals with searches. S. 165 deals with searches. The relevant part of that section reads: (1) Whenever an officer in charge of a police-station or a police-officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police-station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station. (2) * * * * (3) If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may after recording in writing his reasons for so doing require any officer subordinate to him to make the search, and be shall deliver to such subordinate officer an order in writing specifying the place to be searched and, so far as possible, the thing for which search is to be made; and such subordinate officer may thereupon search for such thing in such place. (4) The provisions of this Code as to search-warrants and the general provisions as to searches contained in S. 102 and S. 103 shall, so far as may be, apply to a search made under this section. (5) Copies of any record made under sub-s. (1) or sub-s. (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence and the owner or occupier of the place searched shall on application be furnished with a copy of the same by the Magistrate. The argument is that the expression "so far as may be" in S. 105 (2) of the Act attracts S. 165 (1) of the Code of Criminal Procedure and under that section, as the police-officer has to record in writing the grounds of his belief the Assistant Collector of Customs shall also in authorizing the search record his reasons for doing so. But, in our view, S. 105 of the Act and S. 165 (1) of the Code of Criminal Procedure are intended to meet totally different situations. While under S. 105 of the Act the Assistant Collector of Customs either makes the search personally or authorizes any officer of Customs to do so, if he has reason to believe the facts mentioned therein, under S. 165 (1) of the Code of Criminal Procedure the recording of the reasons for believing the facts is only to enable him to make a search urgently in a case where search warrants in the ordinary course cannot be obtained. It is, therefore, not possible to invoke that condition and apply it to a situation arising under S. 105 of the Act. It is not necessary in this case to particularize which of the other clauses or part of the clauses of that section can be applied to a search under S. 105 of the Act. We, therefore, reject this contention also. 10. Then it is contended that S. 105 of the Act confers an unguided and arbitrary power on the Assistant Collector of Customs to make a search, the only condition being that he has reason to believe in the existence of the facts mentioned therein. It is said that the said belief is practically a subjective satisfaction and the section neither lays down any policy nor imposes any effective control on his absolute discretion. So stated the argument is attractive, but a deeper scrutiny of the provisions indicates not only a policy but also effective checks on the exercise of the power to search by the Assistant Collector of Customs. The object of the section is to make a search for the goods liable to be confiscated or the documents secreted in any place which are relevant to any proceeding under the Act. The legislative policy reflected in the section is that the search must be in regard to the two categories mentioned therein, namely, goods liable to be confiscated and documents relevant to a proceeding under the Act. No doubt the power can be abused. But that, is controlled by other means. Though under the section the Assistant Collector of Customs need not give the reasons, if the existence of belief is questioned in any collateral proceedings, he has to produce relevant evidence to sustain his belief. No doubt the power can be abused. But that, is controlled by other means. Though under the section the Assistant Collector of Customs need not give the reasons, if the existence of belief is questioned in any collateral proceedings, he has to produce relevant evidence to sustain his belief. That apart, under S. 165 (5) of the Code of Criminal Procedure, read with S. 105 (2) of the Act, he has to send forthwith to the Collector of Customs a copy of any record made by him. The Collector would certainly give necessary directions if the Assistant Collector went wrong, or if his act was guided by mala fides. But the more effective control on him is found in S. 136 (2) of the Act. It reads: If any officer of customs, . . . . . . . . (a) requires any person to be searched for goods liable to confiscation or any document relating thereto, without having reason to believe that he has such goods or documents secreted about his person; or (b) arrests any person without having reason to believe that he has been guilty of an offence punishable under S. 135; or (c) searches or authorises any other officer of customs to search any place without having reason to believe that any goods, documents or things of the nature referred to in S. 105 are secreted in that place, he shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. No doubt he can be prosecuted only with the previous sanction of the Central Government, but his liability to original prosecution for dereliction of duty under S. 105 of the Act is certainly an effective control on his arbitrary acts. It is, therefore, clear that not only a policy is laid down in S. 105, but also that the acts of the Assistant Collector are effectively controlled in the manner stated above. We cannot, therefore, say that Section 105 offends Art. 14 of the Constitution. 11. Lastly, it is contended that the Assistant Collector of Customs in fact has not placed any material before the High Court to sustain his reasonable belief. The High Court, on the material placed before it, held that the Assistant Collector had acted with reasonable belief in the facts mentioned in that section. 11. Lastly, it is contended that the Assistant Collector of Customs in fact has not placed any material before the High Court to sustain his reasonable belief. The High Court, on the material placed before it, held that the Assistant Collector had acted with reasonable belief in the facts mentioned in that section. There is no justification for our interference with the findings of the High Court. 12. In the result, the appeal fails and is dismissed with costs. 13. It is represented to us that three years have elapsed since the documents were seized and it appears that nothing further has been done in the matter. We hope and trust that the Customs Authorities will take appropriate and immediate steps to finish their investigation and return the documents which are not required, to the appellant. Appeal dismissed.TARKUNDE AND WAGLE, JJ. 1967 CRI. L. J. 994 (Vol. 73, C. N. 247) BOMBAY HIGH COURT M. A. Khan, Applicant versus State and another, Respondents. Criminal Appln. No. 1233 of 1965, Decided on : 12 -4 -1966. (A) Bombay Conditions of Detention Order (1951), Cl.16 - Defence of India Rules (1962), R.30(4) - Public Safety - Word Maintenance - Implication of - Condition imposed on detenus to read only such newspapers and books as Jail Authorities and State Goverment think suitable - Condition does not relate to "maintenance' of detenus. (Para 5) (B) Defence of India Rules (1962), R.30(4) - Term 'discipline - Connotation of - It connotes only those rules of behaviour which promote orderly functioning of institutions accommodating detenus - It does not empoweir Government to regulate reading habits or to constitute themselves as mentors of detenus. (Para 5) (C) Bombay Conditions of Detention Order (1951), Cl.16 - Defence of India Rules (1962), R.30(1), R.30(4) - Public Safety - Purpose of preventive detention-It is not to improve minds of detenus but to prevent them from acting in any manner prejudicial to objects mentione4inR. 30 (1) - Provisions preventing detenus from having at their cost newspapers, periodjicals and books freely read by general public -Provisions, have no rational connection with maintenance; and discipline of detenus and, are beyond powers conferred on State Government by R.30(4). AlR 1966 SC 424, Foll. 30 (1) - Provisions preventing detenus from having at their cost newspapers, periodjicals and books freely read by general public -Provisions, have no rational connection with maintenance; and discipline of detenus and, are beyond powers conferred on State Government by R.30(4). AlR 1966 SC 424, Foll. (Paras 5, 6) (D) Bombay Conditions of Detention Order (1951), Cl.16 - Public Safety - Purpose - It is not to restrict number of periodicals and books but to prevent detenus from reading such books and perodicals as State Government and jail authorities think unsuitable. (Para 7) (E) Bombay Conditions of Detention Order (1951), Cl.16 - Defence of India Rules (1962), R.30(4) - Publip Safety - Provisions for preparing list of newspapers and for considering suitability or otherwise of books and periodicals - Validity- Provisionsare'invalid so far as they give arbitrary and unregulated discretion in preparation of list of newspapers and prevent detenu from obtaining at his cost periodicals' and books, freely and taw-fully read by general public as R.30(4) does not empower State Government to impose such restriction. 66 Bom LR 185, Considered obiter. (Paras 8, 9) (F) Bombay Conditions of Detention Order (1951), Cl.16 - Defence of India Act (51 of 1962), S.44 - Public Safety - Word 'avocation' - Connotation of -It connotes principal occupation as well as subsidiary pursuits of life of, individual-Restrictions imposed on detenu In receiving at his own cost books and newspapers, freely and lawfully, received, by general public-- Validity-Such, restrictions amount to interference with ordinary avocations of detenue within connotation of word 'avocation' and therefore violate principle laid down in S. 44. Criminal Appln. No. 1576 of 1965, D/- 6-12-1965 (Bom), Rel. on. (Para 13) Cases Referred : 1. AIR 1966 SC 424 : 1966 Cri LJ 311, State of Maharashtra v. Prabhakar Pandurang 2. (1965) Cri Appln. No. 1576 of 1965, D/-6-12-1965 : 68 Bom LR 564, State v. Dhanji Virji Bhanusali 3. (1964) 66 Bom LR 185 : 1964 Mah LJ 297, George Fernandes v. State of Maharashtra 8 Advocate Appeared K.K. Singhvi, with C.J. Sawant, for Applicant; M.A. Rane, Asstt. Govt. Pleader, for the State. Judgement TARKUNDE, J. : The petitioner in this case has been continuously in detention since 7th June 1963, in pursuance of orders passed by the Government of Maharashtra from time to time under R. 30 (1) (b) of the Defence of India Rules. Govt. Pleader, for the State. Judgement TARKUNDE, J. : The petitioner in this case has been continuously in detention since 7th June 1963, in pursuance of orders passed by the Government of Maharashtra from time to time under R. 30 (1) (b) of the Defence of India Rules. During this period, he was trying to have certain journals and periodicals at his own cost, but could not get the permission to receive them. The jail authorities did not allow him to purchase or receive the journals and periodicals on the ground that they were not included in the official List of newspapers allowable to security prisoners of Class I. On 5th July 1965, the petitioner wrote to the Secretary of the Home Department, Government of Maharashtra, that he may be permitted to purchase at his own cost or to receive the following journals and periodicals. (1) "The Dawat" (Urdu), Daily of Delhi (2) "The Radiance" (English), Weekly of Delhi (3) "The Margdeep" (Marathi), Biweekly of Poona (4) "The Tajally" (Urdu), Monthly of Deoband (5) "The Kanti" (Hindi), Monthly of Rampur (6)"-indagi" (Urdu), Monthly of Rampur, and (7) "Fanoos Digest" Monthly of Pakistan. Having failed to receive any reply from the Government to this letter, he filed the present petition under Art. 226 of the Constitution for a writ or direction requiring the respondents, the State of Maharashtra and the Superintendent of the Bombay District Prison, to allow him to receive and use the literature he had asked for. After the petition was filed, the petitioner gave up his claim in respect of the monthly "Fanoos Digest", which was being published in Pakistan, on account of the commencement of the recent Indo-Pakistan conflict. 2. The conditions under which the petitioner was detained were those provided by the Bombay Conditions of Detention Order, 1951. This order had been issued by the Government of Bombay under S. 4 of the Preventive Detention Act, 1950. Sub-rule (43 of R. 30 of the Defence of India Rules, 1962, provided that the Central Government or the State Government, as the case may be, may from time to time determine the conditions as to maintenance, discipline and the punishment of offences and breaches of discipline in respect of persons detained under sub-rule (1) (b) of Rule 30. Sub-rule (43 of R. 30 of the Defence of India Rules, 1962, provided that the Central Government or the State Government, as the case may be, may from time to time determine the conditions as to maintenance, discipline and the punishment of offences and breaches of discipline in respect of persons detained under sub-rule (1) (b) of Rule 30. In exercise of the powers conferred by sub-rule (4) of R. 30, the State of Maharashtra issued an order on 9th November 1962, that the conditions as to maintenance discipline and the punishment of offences and breaches of discipline governing persons order to be detained in any place in the State of Maharashtra under the Defence of India Rules shall be the same as those contained in the Bombay Conditions of Detention Order, 1951 3. The grievance of the petitioner centres on Cl. 16 of the Bombay Conditions of Detention Order, 1951, which relates to books and newspapers which can be received by security prisoners. Clause 16 runs as follows: "16. (i) Class I security prisoners may be allowed at Government expense one weekly newspaper for every 20, and one daily newspaper for every 15 security prisoners, out of the list of newspapers considered suitable for convicts of Class I and Class II. Class II security prisoners may be allowed one such, weekly newspaper for every 40, and one such daily newspaper for every 20 security prisoners. Both Class I and Class II security prisoners may be allowed, at their cost, any other weekly or daily newspapers included in the said list; provided that if any security prisoner wants any newspaper not included in the said list, he shall obtain the orders of Government through the Commissioner or the Superintendent, as the case may be. Both Class I and Class II security prisoners may be allowed, at their cost, any other weekly or daily newspapers included in the said list; provided that if any security prisoner wants any newspaper not included in the said list, he shall obtain the orders of Government through the Commissioner or the Superintendent, as the case may be. (ii) Books (including periodicals not treated as newspapers) may be received by the security prisoners through the post subject to the condition that the postal article containing the books shall first be opened by the Commissioner or the Superintendent, as the case may be, or any person appointed by him in this behalf, and the delivery of such book to the security prisoner shall be refused by the Commissioner or the Superintendent, as the case may be, if in his opinion it is not suitable." It will be noticed that sub-clause (i) of this Clause allows security prisoners to have at their cost any of the weekly or daily newspapers which are included in the list of newspapers "considered suitable for convicts of Class I and Class II". And such other newspapers as may be allowed to them by orders of the State Government. Under sub-clause (ii) the detenus are allowed to receive books (including periodicals which are not treated as newspapers) provided, however, that the delivery of any such book to the detenu can be refused by the Commissioner of Police or the Jail Superintendent, as the case may be, if in his opinion the book is "not suitable. The petitioner challenged the legality of the above Clause 16 in the course of his petition on the grounds, firstly that the imposition of such a condition was beyond the powers conferred on the State Government by subrule (4) of R. 30 of the Defence of India Rules, and secondly, that the imposition of the condition was contrary to the provisions contained in S. 44 of the Defence of India Act, 1962. 4. These contentions were denied on behalf of the respondents in an affidavit in reply filed by the Under Secretary to the Government of Maharashtra in the Home Department and General Administration Department. It was further stated in the affidavit that the Government had considered the request made by the petitioner for being allowed to receive the said journals and periodicals at his own cost and had rejected that request. It was further stated in the affidavit that the Government had considered the request made by the petitioner for being allowed to receive the said journals and periodicals at his own cost and had rejected that request. It was observed that "Dawat" was a daily newspaper, that "Radiance" and "Margdeep" were periodicals which could be classed as newspapers, and that the Government had decided under sub-clause (i) of Cl. 16 of the Bombay Conditions of Detention Order, 1951, that the petitioner should not be permitted to get the said Journals on the ground that they were "unsuitable". In regard to the other publications, viz. "Tajally", "Kanti" and -indagi" it was stated in the affidavit that they fell within the category of "periodicals not treated as newspapers", and that the petitioner was not allowed to have them as the Government found them also to be unsuitable an on the ground that they preached violence. In a supplementary affidavit the Under Secretary stated further that several issues of the daily newspaper "Dawat" were examined by the office of the Inspector General of Police and that, as a result of the detailed scrutiny made by the said office, the Government came to the conclusion that the said paper was unsuitable for being permitted to the petitioner "as the editorials and notes contain a violent attack on the, accepted policies of Government of India particularly in regard to Kashmir". The affidavit went on to say, "The said newspaper is positively anti-national and pro-Pakistani. Besides criticising Indian leaders, it advocates a, veiled insinuation of extra-territorial loyalty for the Muslims". The above allegations in regard to daily newspaper "Dawat" were denied in, an affidavit filed by the petitioner in rejoinder. 5. As stated above, the first contention of the petitioner is that the powers which can be exercised by the State Government under sea rule (4) of R. 30 of the Defence of India Rules do not include a power to impose on detenus a condition like the one contained in Cl. 16 of the Bombay Conditions of Detention Order. 1951. As stated above, the first contention of the petitioner is that the powers which can be exercised by the State Government under sea rule (4) of R. 30 of the Defence of India Rules do not include a power to impose on detenus a condition like the one contained in Cl. 16 of the Bombay Conditions of Detention Order. 1951. Sub-rule (4) of R. 30 lays down-'' So long as there is in force in respect of any person such an order as aforesaid directing that he be detained, he shall be liable to be detained in such place, and under such conditions as to maintenance, discipline and the punishment of offences and breaches of discipline, as the Central Government or the State Goverment, as the case may be, may from time to time determine." Broadly stated, this sub-rule enables the Central Government or the State Government to determine the conditions as to maintenance and discipline of persons detained under R. 30 (1) (b) of the Defence of India Rules. Now what is objected to in Cl. 16 is that, it enables the Jail authorities and the State Government to prevent a detenu from having, even at his own cost, newspapers and books which can be freely read by the general public but which are regarded by the said authorities to be unsuitable to the detenus. It is obvious that such a condition does not relate to the "maintenance" of the detenus. It was urged by the learned Assistant Government pleader, who appeared for the respondents, that the condition relates to the discipline of detenus and that the State Government was, therefore, competent to impose such a condition in the exercise of its powers under sub-rule (4) of R. 30. In making this submission the learned Assistant Government Pleader attributed to the word "discipline" a far wider meaning than is justified by the context in which that word occurs. The word "discipline" as it occurs in sub-rule (4) can comprise only those rules of behaviour which promote the orderly functioning of the institution where the detenus are accommodated and such further rules which are necessary for effectuating the specific purposes for which the detenus are detained. It follows that the word "discipline" in sub-rule (4) cannot be utilised to enable the Government or the Jail authorities to regulate the reading habits of the detenus. It follows that the word "discipline" in sub-rule (4) cannot be utilised to enable the Government or the Jail authorities to regulate the reading habits of the detenus. It does not empower the State Government to constitute themselves as the mentors of the detenus. The purpose of preventive detention is not to improve the minds of the detenus but to prevent them from acting in any manner prejudicial to the objects mentioned in sub-rule (1) of R. 30. It must accordingly be held that the provisions of Cl. 16, in so far as they prevent the detenus from having at their cost newspapers, periodicals and books which can be freely read by the general public, have no rational connection with the maintenance and discipline of detenus and are beyond the powers conferred on the State Government by sub-rule (4) of Rule 30. 6. A reference may be made in this connection to the decision of the Supreme Court in State of Maharashtra v. Prabhakar Pandurang, AIR 1966 SC 424 . The grievance of the detenu in that case was that the Government of Maharashtra had refused to give him permission to send out of the Jail, where he was detained, the manuscript of book on a scientific topic which he had written and which he wanted to have published. It was contended on behalf of the Government of Maharashtra that a detenu can exercise only such privileges as are conferred on him by the order of detention and that the provisions of Bombay Conditions of Detention Order, 1951, did not confer on the detenu any privilege to write a book and send it out for publication. In rejecting this contention the Supreme Court observed: "We find it difficult to accept the argument that the Bombay Conditions of Detention Order, 1951, which lays down the conditions regulating the restrictions on the liberty of a detenu, conferred only certain privileges on the detenu. If this argument were to be accepted, it would mean that the detenu could be starved to death, if there was no condition providing for giving food to the detenu. In the matter of liberty of a subject such a construclion shall not be given to the said rules and regulations, unless for compelling reasons. If this argument were to be accepted, it would mean that the detenu could be starved to death, if there was no condition providing for giving food to the detenu. In the matter of liberty of a subject such a construclion shall not be given to the said rules and regulations, unless for compelling reasons. We, therefore, hold that the said conditions regulating the restrictions on the personal liberty of a detenu are not privileges conferred on him, but are the conditions subject to which his liberty can be restricted." These observations lend support to our view that the liberties of detenus cannot be curtailed by imposing conditions which are beyond the powers which are granted by the terms of sub-rule (4) of R. 30 of the Defence of India Rules. 7. The learned Assistant Government Pleader argued that, it is necessary in the interest of security that detenus should be prevented from receiving an unlimited supply of periodicals and books and that the condition in Cl. 16 is thus necessary for ensuring discipline in the Jail or the camp where detenus are accommodated. This argument might have carried weight, if Clause 16 were designed to restrict the number of periodicals and books received by detenus in such manner as to enable the Jail authorities to subject them to a proper scrutiny. The purpose of Cl. 16, however, is not to restrict the number of periodicals and books that could be received by a detenu at his own cost; the purpose is that the detenu shall not be able to have, even at his own cost, such periodicals and Books as are unsuitable in the opinion of the State Government or the Jail authorities. 8. It was further urged by the learned Assistant Government Pleader, that the terms of Clause 16 are intended to prevent the detenus from having periodicals and books which are vulgar or obscene, or which preach violence, or which are proscribed by law, and that such a restriction is necessary for maintaining discipline in the Camp or the Jail where the detenus are accommodated. Now, in the first place, the restrictions which have been imposed by Cl. 16 are not confined to periodicals and books which are vulgar or obscene, or which preach violence, or which are proscribed by law. Under sub-clause (i) of Cl. Now, in the first place, the restrictions which have been imposed by Cl. 16 are not confined to periodicals and books which are vulgar or obscene, or which preach violence, or which are proscribed by law. Under sub-clause (i) of Cl. 16, a detenu can get at his own cost such newspapers as are included in the list of newspapers "considered suitable for convicts of Class I and Class II" and such other newspapers as may be allowed by the State Government. We do not know on what basis the list of newspapers "considered suitable for convicts of Class I and Class II" is prepared. The learned Assistant Government Pleader told us that, he also did not know it. There is similar vagueness with regard to the basis on which the State Government may allow a detenu to have at his cost newspapers other than those included in the aforesaid list. The effect of sub-clause (i) of Cl. 16, is that the right of a detenu to have newspapers of his choice is subjected to an entirely arbitrary and unregulated discretion of the State Government. Under sub-clause (ii) of Cl. 16, detenu can receive books of his choice only if they are "suitable" in the opinion of the Commissioner of Police or the Jail Superintendent as the case may be. No guidance is provided in sub-clause (ii) in regard to the basis on which the suitability of books is to be decided by the Commissioner or the Jail Superintend dent. In this connection it was pointed out by the learned Assistant Government Pleader that a restricted meaning to the word "suitable in sub-clause (ii) of Cl. 16 was given in the judgment of a Division Bench of this Court in George Fernandes v. State of Maharashtra, 66 Bom LR 185. In that case a Jail Superintendent had arbitrarily fixed the number of books which would be made available to the detenu, and the contention of the detenu was that the provisions of Cl. 16 did not permit the Superintendent to restrict the number of books which could be received by him. That contention of the detenu was upheld by the Court. The validity of Cl. 16 was not chah lenged by the detenu in that case; on the contrary the detenu relied on Cl. 16 in support of his contention. 16 did not permit the Superintendent to restrict the number of books which could be received by him. That contention of the detenu was upheld by the Court. The validity of Cl. 16 was not chah lenged by the detenu in that case; on the contrary the detenu relied on Cl. 16 in support of his contention. While upholding the detenu's contention, the Court made the following observation about the discretion which has been granted by sub-cl. (ii) of Cl. 16 to a Jail Superintendent to decide upon the suitability of a book or publication wanted by the detenu: "But as far as we can see, that discretion will have to operate within a well-defined field. The book may be unsuitable considering the material or the contents of the book which may be objectionable, because it preaches violence, it may be vulgar or obscene, it may be pornographic, or it may have been proscribed, but beyond the compass of this dicretion, we do not find any power in the Superintendent to withhold a book from the detenu on any other ground." As no dispute arose in that case with regard to the suitability of any book or publication, this observation of the Court was clearly obiter. It appears that the above restriction on the scope of the term "suitable" was 'derived by the Court from rules 1357 and 1360 of the Bombay Jail Manual which have been quoted in the said judgment. It appears to us, with great respect, that neither 'the terms of sub-clause (ii) of Cl. 16, nor the context in which those terms are used, provide any indication of the manner in which the Commissioner or the Superintendent, as the case may be, is to decide on the suitability or otherwise of any book or publication wanted by detenu. Supposing, however, that such a restriction to the discretion of the Commissioner or the Superintendent can be read in Cl. 16(ii), the discretion so restricted would be unlawful, for there is nothing in sub-rule (4) of R. 30 of the Defence of India Rules, which entitles the State Government to prevent a detenu from receiving any book or periodical which can be lawfully obtained and read by a person, who is not under detention. 16(ii), the discretion so restricted would be unlawful, for there is nothing in sub-rule (4) of R. 30 of the Defence of India Rules, which entitles the State Government to prevent a detenu from receiving any book or periodical which can be lawfully obtained and read by a person, who is not under detention. The State Government may of course, prevent a detenu from receiving periodicals and books which cannot be lawfully obtained by people, who are not under detention. Books and periodicals which are proscribed, or which are obscene, may be disallowed on those grounds, but not books and periodicals which can be freely had by the general public. 9. It will be noticed that, it is not our conclusion that the whole of Cl. 16 is invalid. In our view, the two sub-clauses of Cl. 16 are invalid in so far as they prevent a detenu from obtaining at his own cost a periodical or a "book which can be freely and lawfully obtained by the general public. 10. The second contention advanced on behalf of the petitioner was that the restriction which has been imposed upon him in the matter of receiving newspapers and periodicals at his own cost is contrary to the provisions contained in S. 44 of the Defence of India 'Act. Section 44 lays down. "44. Ordinary avocations of life to be interfered with as little as possible.-Any authority or person acting in pursuance of this Act, shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purpose of ensuring the public safety and interest and the defence of India and civil defence." The scope and effect of S. 44 was considered by this Court in State v. Dhanji Virji Bhanu sati Criminal Appln. No. 1576 of 1965, D/-7-12-1965 (Bom). In the course of the judgment in that case it was observed: "It appears to us, on the one hand, that the standard of compliance with S. 44 is a subjective standard, and that the section does not purport to lay down any objective or impersonal standard. In other words, the section requires that every authority or person, acting in pursuance of the Act, shall adopt such action as in its or his judgment accords with the principle of least interference. In other words, the section requires that every authority or person, acting in pursuance of the Act, shall adopt such action as in its or his judgment accords with the principle of least interference. It appears to us, on the other hand, that the terms of that section are mandatory, that authorities and persons acting in pursuance of the Act. are bound to abide by the principle laid down to that section, and that acts done in violation of that principle are invalid. This does not, however mean that the question whether in a particular case the provisions of that section have been complied with is non-justiciable. If an authority or person makes any order which, in his considered opinion, is in conformity with the principle enunciated in that section, it Cannot be challenged in a Court of law on the ground that another order of less severity would have sufficed to meet the situation. If, however, an authority or person makes an Order without regard to the principle enunciated in that section, he acts in breach of a legislative mandate and his order can be held by the Court to be invalid. In our view, S. 44 is thus mandatory, and the question of compliance or otherwise with that section is also justiciable in the limited sense mentioned above." It was further observed in the judgment: "The result is that an authority or person exercising powers under the Act, is bound to have regard to the principle enunciated in S. 44, that the Court will not examine the propriety of an action adopted by an authority or person after paying due regard to that principle, but that the Court can strike down any such action where it is shown that the authority or person concerned paid no heed to that principle or could not have rationally adopted the action if the principle had been taken into consideration." 11. On the basis of this decision, it was urged by Mr. Singhvi on behalf of the petitioner that Cl. 16 of the Bombay Conditions of Detention Order, 1951, contravenes S. 44 of the Defence of India Act, in so far as it prohibits a detenu from receiving at his own cost a periodical or book which can be obtained by the general public. Mr. Singhvi on behalf of the petitioner that Cl. 16 of the Bombay Conditions of Detention Order, 1951, contravenes S. 44 of the Defence of India Act, in so far as it prohibits a detenu from receiving at his own cost a periodical or book which can be obtained by the general public. Mr. Singhvi argued that if the State Government had taken into consideration, the principle of least interference laid down in S. 44 while determining the conditions of maintenance and discipline of detenus, the Government could not have rationally come to the conclusion that it was necessary for ensuring public safety and interest or the defence of India and civil defence that persons in preventive detention should be debarred from reading periodicals and books which can be freely read by the public at large. 12. Now, it appears to us that, it would have been necessary for us to decide whether the impugned provisions of Cl. 16, are consistent with the principle laid down in S. 44 if we had come to the conclusion that the State Government was given the power under sub-rule (4) of R. 30 of the Defence of India Rules, to regulate the literature which may be received and read by the detenus. If such a power had been granted to the State Government by sub-rule (4) of R. 30, it would have been necessary to decide whether that power was exercised in conformity with the requirements of S. 44 when the provisions of Cl. 16, were applicable by the State Government to persons detained under the Defence of India Rules. On the finding given by us earlier, no such power was granted to the State Government by sub-rule (4) of R. 30. 13. Supposing, however, that it was within the power of the State Government under sub-rule (4) of R. 30 to impose conditions on the books and periodicals that may be received by detenus at their own cost, we are of the view that the restrictions in that behalf contained in Cl. 16 are violative of the principle laid down in S. 44. It was not denied before us that reading newspapers, periodicals and books is one of the ordinary avocations of life. 16 are violative of the principle laid down in S. 44. It was not denied before us that reading newspapers, periodicals and books is one of the ordinary avocations of life. A reference to any standard dictionary would show that the word "avocation" originally meant a diversion from one's principal vocation, but that it has now come to include the principal occupation as well as the subsidiary pursuits of life of an individual. It must, therefore, be held that the restriction placed by Cl. 16 on the periodicals and books which can be received and read by detenus amounts to an interference with one of the ordinary avocations of detenus. We are further of the view that if the State Government had taken into consideration the principle of least interference laid down in S. 44, when they determined the conditions of maintenance and discipline of detenus, they could not have rationally come to the conclusion that it was necessary for ensuring the public safety and interest or the defence of India and civil defence that persons kept in preventive detention should be debarred from receiving and reading periodicals and books which could be freely received and read by the general public. 14. We hold accordingly that the respondents, the State of Maharashtra and the Superintendent of the Bombay District prison were not entitled to disallow the petitioner from receiving the newspapers and periodicals mentioned in his letter of 5th July 1965, addressed to the Secretary of the Home Department of the Government of Maharashtra except the Urdu monthly "Fanoos Digest" which is no longer being asked for by the petitioner. The respondents are directed to remove the said restriction and allow the petitioner to receive at his cost the newspapers and periodicals mentioned above. The respondents will pay the petitioner's costs. Petition allowed.