R.N. Misra, J.
1. This is an application by the owner of a Press known as 'Janaseva Printing Works' located at Cut-tack for quashing of a notification dated 22-12-1975 (Annex. B) made by the State Government in exercise of powers vested Under Section 17-A (1) of the Criminal Law Amendment Act 1908 (14 of 1908).
2. The following facts no more seem to be in dispute ; Petitioner's father Bhupendra Kumar Bosa was an active member of the Rashtriya Swayam Sevak Sangh (hereafter called 'R. S. S. S.'), The Janaseva Printing Works is located at Gopal Jew lane of the town of Cuttack. A local weekly paper in Oriya called 'Rashtra- dipa' connected with R. S. S. S. activities was being printed in the said Press. On 3rd of July, 1975, the Central Government in exercise of powers conferred by Sub-rule (1) of Rule 33 of the Defence and Internal Security of India Rules, 1971, declared the R. S. S. S. to be illegal organisation. That very day petitioner's father was detained under the Maintenance of Internal Security Act. On the day following, armed guards were mounted and the premises where the Press was located was placed under police control. On 30th of August, 1975, there was a theft in the Press and on the following day, First Information Report of the theft was lodged and Mangalabag P. S. Case No. 425 of 1975 was registered. On 6-9-1975, the keys of the Press building were seized from the petitioner vide Annex. 2. As the keys of the Press building were not returned to the petitioner, he filed, the writ application on 11-11-1975 praying for return of the keys. On 26-11-1975, the Inspector of Police attached to the Lalbag Police Station filed a preliminary counter affidavit. On 22-12-1975, a notification in terms of Section 17-A(1) of the Criminal Law Amendment Act of 1908 (hereafter called the 'Act') was mace. On 23-1-1976, the Superintendent of Police of Cuttack filed a further counter affidavit and to this affidavit was annexed the impugned notification as Annex. B. The petitioner thereupon applied for amendment of the writ application and asked for quashing the notification. On 17 11 1976, a further counter affidavit was filed by the Home Secretary in justification of live notification.
3. According to the petitioner, possession of the Prese had been taken by the police with effect from 4th of July, 1975, The keys of the Press building were taken from him on 6th of September, 1975. Thus the premises was not being used for the purposes of the R. S. S. S. which is an unlawful association on or about 22nd of December, 1975, when the impugned notification was made. Since jurisdiction Under Section 17-A of the Act is dependent upon present user, there was no material for the satisfaction of the State Government to exercise of power vested Under Section 17-A(1) of the Act. Learned Advocate General for the opposite parties seriously challenges the submission on behalf of the petitioner that possession of the Press had been taken from the petitioner at any point of time prior to the impugned notification.
4. Section 17-A(1) of the Act provides :
The State Government may, by notification in the official Gazette, notify any place which in its opinion is used for the purposes of an unlawful association.
Though in the writ application, there was a denial that the place was not toeing used for the purposes of the R. S. S. S., Mr. Patnaik for the petitioner does not press that contention any longer. He confines his submission to the point that possession of the Press having already been taken over from 4th of July, 1975, and all activities within the Press having stopped since that date, there was no scope for the State Government to be satisfied that either on or in close proximity of 22nd December, 1975, the place was being used for the purposes of the R. S. S. S.
5. The point raised can be appropriately disposed of by determination of two aspects, namely (i) a factual question as to when exactly possession of the Press was taken over and. (ii) on a finding as to the true meaning of 'is used' occurring in Section 17-A of the Act.
Petitioner alleged in para. 6 of his writ application :
That on 4-7-1.975 to the petitioner's surprise armed personnel at the behest of the opposite parties surrounded the premises inside which the Press was located and kept watch thereon since round the clock. Neither the petitioner nor his employees have been allowed to enter the premises to carry on the printing work. The petitioner being a person engaged in printing business, the petitioner had. accepted printing works from various sources and the sudden restriction placed on his entrance and that of his employees has brought the business to a stand still ... ... ... ... ... The petitioner had sent his representations in this regard to the apposite parties but no action has yet been taken either by way of intimating the basis for the action or lifting the illegal watch placed at the premises and the physical restraint placed on the petitioner and his employees.
In the first counter affidavit dated 26-11-1975, the Inspector of Police averred in para. 9 :. ... ... ... Guards have been posted since 4-7-1975 to prevent circulation and printing objectionable leaflets in the Press, unlawful association inside the premises of the Press... ... ... ...
The Superintendent of Police in his counter affidavit filed on 23-1-1976 has stated :
7... ... ... ... Immediately after the ban of R. S. S. S. the father of the petitioner was detained under MISA and since it was confidentially learnt that the Press building was being used for the purpose of unlawful association, guards have been mounted since 4-7-1975. It was so done to prevent circulation and printing of objectionable leaflets in the Press and unlawful association as well as to prevent removal and destruction of evidence inside the premises of the Press... ... ...
The Home Secretary's counter affidavit, however, sounded a slightly different note. In para. 4, he averred :. ... ... ...The allegation that on early morning of 4-7-1975 entry to the premises was sealed and the premises were locked and it is impossible that the premises were used for the purposes of unlawful association from 4-7-1975 till 22-12-1975 is misleading. After the ban of E. S. S. S. the father of the petitioner was detained under MISA and since it was confidentially learnt that the building in question was being used for the purposes of unlawful association, in order to prevent the premises for being used for unlawful association, steps were taken for mounting guards on 4-7-1975... ... ... ...
Petitioner's averments in para. 6 about restraint being put on ingress and egress has not been challenged though three counter affidavits have been filed. In Annex. 2, which is a copy of the seizure list in the connected P. S. case, there is a clear admission of seizure of the Press by the Police with effect from 4th of July, 1975. Column 2 of the seizure list when translated into English would read thus :
The keys of the Janaseva Printing Works are seized from its owner Sri Amrut Kumar Bose and the Janaseva Printing Works have been seized by the Police with effect from 4-7-1975.
Though two counter affidavits have come from two Police Officers, there is no challenge to the correctness of the statement in the seizure list referred to above. Nor is there any challenge that the keys of the Press had been seized from the petitioner on 6-9-1975 and are still with the Police authorities. It is not the case of the opposite parties that though the keys have been taken away, the Press is still open and petitioner and other persons connected with R. S S. S. activities were using the premises after 4th of July, 1975 or 6th of September, 1975, until the impugned notification was made. On the pleadings, the statement contained in Annex. 2 (seizure list) and the further feature that the keys of the Press have been taken over by the Police from 6th Of September, 1975, and have not been returned, the only conclusion which can be drawn is that with effect from 4th of July, 1975, the premises where the Press is located was not put to any use -- much less for any activity of the R. S. S. S.
6. We have now to address our attention for finding out what is the true meaning of 'is used'. According to Mr. Pat-naik for the petitioner, exercise of jurisdiction under the provision is conditioned upon the premises being used for purposes of an unlawful association and though the satisfaction is subjective and is not open to scrutiny by the Court, existence or non-existence of the facts upon which satisfaction can be reached is a matter which is open to dispute and consequently adjudication. He relies upon two decisions of the Supreme Court in support of this proposition of his. In the case of Barium Chemicals Ltd. v. Company Law Board : [1967]1SCR898 , the majority of the Judges came to hold that if it was shown that the circumstances which are to exist as a condition precedent to making of the order were not existing, the order is open to challenge. The same view was adopted in the case of Rohatas Industries Ltd. v. S.D. Agarwal : [1969]3SCR108 .
Mr. Patnaik for the petitioner contends that the Statute requires use in praesenti as a pre-condition for making of the order and, therefore, the verb in present tense 'is' has been used in the section. Learned Advocate General claims that 'is used' does not necessarily mean that the user must be in praesenti. He relies upon the meaning given to the verb 'is' in Stroud's Judicial Dictionary, where it has been indicated that 'is' can be a participle it can refer to the past, present as also future. Apart from any other thing, the intention has to be gathered to find out in what sense the verb has been used. In 'Words and Phrases', Permanent Edition, Vol. 22-A, referring to the word 'is', it has been stated :
The use of the word 'is', in statute making unlawful the possession of slot machines upon the results of the action of which money 'is' staked or hazarded, does not limit the broad prohibitions of the statute so as to restrict its operation to those cases only in which slot machines are in actual use... ... ...
The word 'is' constitutes the third person singular of the present indicative of the verb 'be'. It is employed only in indication of the present tense... ... ...
Word 'is' defined as being third person singular present indicative of the verb be. The word in its plain ordinary and usal sense denotes present tense... ... ...
In the case of State v. C.N. Raman : AIR1956Bom447 the Court was called upon to find out the true meaning of 'is used' occurring in Section 4 of the Press (Objectionable Matter) Act of 1951. The relevant provision read thus :
Whenever upon complaint made to him in writing by the competent authority and inquiry made in the manner hereinafter provided, a Sessions Judge is satisfied--
(a) that any press kept within the local limits of his jurisdiction is used for the purpose of printing or publishing any newspaper, news-sheet, book or other document containing objectionable matter, and xx xx xx
Shah, J. as the learned Judge then was, spoke for the Court thus :
Evidently the satisfaction of the Sessions Judge must be with reference to the date on which the application is made and not at the time when he passed the final order. The expression is used must relate to a time proximate to the time at which the application has been preferred.
A Division Bench of the Madhya Pradesh High Court in the case of Jagannath Prasad v. State of Madhya Pradesh : AIR1968MP155 , was construing the true meaning of Section 4 of the Madhya Pradesh Maintenance of Public Order Act. The relevant provision ran thus :
Whenever it appears to the District Magistrate--
(a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property ; or
(b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence... ... ...
The learned Chief Justice observed :. ... ... ... An order Under Section 4 is no doubt based on the opinion and judgment of the District Magistrate, formed by him on the material before him. But the opinion, which the law requires the District Magistrate to form, and the sufficient cause he must have to believe must be as regards the activities of the person intended to be proceeded against at the time when the order is proposed to be made. It is perfectly true that the opinion of the District Magistrate cannot be questioned by the Court ; but the opinion must be arrived at on materials placed before him and on a judgment, which he himself must make, that the movements or acts of the person against whom an order is to be made are causing or are calculated to cause alarm, danger etc. or that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence mentioned in Clause (b) of Section 4.
It is contended that 'are' is plural of the verb 'is' and in Section 17-A (1) of the Act, there is no reference to future use. We are inclined to agree with the submission of Mr. Patnaik for the petitioner that the Statute refers to user in praesenti and we are prepared to accept a part of the submission of learned Advocate General that such user may also cover a period very proximate to the point of time when the order is made. We are, however, not prepared to hold that an order under the relevant, provision can be grounded upon past use or the possibility of use in future. 7. According to learned Advocate General, there is clear material that the Press was being used for the purposes of the unlawful association at the time of making of the order. We have already pointed out that the Press was in police custody from 4-7-1975, i. e. more than five and a half months before the impugned order was made. The three counter affidavits support the stand of the petitioner that the premises was used for the purposes of the R. S. S. S. in the past. We may now refer to some paragraphs of the three counter affidavits. The Inspector in paragraph 4 of his affidavit has said :. ... ... ...It is confidentially learnt that these places were being used for the purpose of unlawful association.
In para. 5, it has been further asserted :. ... ... ...I submit that 'Rashtradeep' a weekly Oriya Patrika which is the main organ of R. S. S. S. (a banned organisation) was being published from this Press. It is confidentially learnt that all sorts of publications and printings relating to R. S. S. S. were being printed in this Press.
In para. 9, it has been alleged :. ... ... ...The steps have been taken as it has been confidentially learnt that the Press as well as the premises were being utilised for the said purpose.
In the counter affidavit given by the Superintendent of Police, in para. 6, it has been stated :. ... ... ...It was confidentially learnt that all sorts of publication and printing relating to R. S. S. S. were being printed in this Press.
In para. 7, it has been stated that the Press building was being used for the purpose of unlawful association. In another part of the same paragraph, it has been stated :. ... ... ...Immediately after the ban of R. S. S. S. guards were mounted at the place in question as an interim measure so that the place will not be utilised for the purpose of unlawful association and for preventing circulation, printing and publication of any objectionable materials and to prevent removal and destruction of evidence.
In the affidavit of the Home Secretary, which is said to be in addition to the earlier counter affidavits, in para. 2, it has been said :. ... ... ...Adequate materials were placed before the Government by the appropriate authority to the effect that the premises in question were being used for the purposes of unlawful association in the matter of organising R. S. S. S. which has been banned by the Government of India following the emergency... ... ... ...
In para. 3, it has been stated :. ... ... ...Besides this publication of weekly, other sorts of publications and printings relating to R. S. S. S. were being done in the said Press.
In a part of para. 4, the following averment has been made :
The interpretation made by the petitioner to the expression 'is used' in Sub-section (1) of Section 17-A is not correct. There is no legal basis to contend that the Government is to be satisfied immediately preceding the exercise of the power conferred under the provision. The placing of relevant materials and its processing to be placed before the Government for appropriate directions Under Section 17-A may take some time and the issuance of the notification may be delayed. In the circumstances, the expression is used has to relate back to the point when the premises was used for unlawful association ... ... ...
The several averments in these three counter affidavits leave the matter beyond doubt that what exactly was considered by Government while making the impugned notification was not user in praesenti but the fact that the premises had once been used for purposes of the R. S. S. S. The submission contained in the affidavit of the Home Secretary that the expression is used has to relate back to the point when the premises was used for unlawful association has to be discarded because the proposition has no reference to the point of time and if accepted might justify action being taken several years after the premises had ceased to be used for unlawful purposes. Further, there is force in the submission of Mr. Patnaik that user prior to declaration of the R. S. S. S. as an unlawful association should not be taken into account at all for the making of the order and jurisdiction Under Section 17-A(1) of the Act is available to be exercised only when the premises is used for the purposes of an unlawful association. On the facts of the present case, there is no doubt that immediately after the R. S. S. S. was declared unlawful, the premises went into police custody. There was, therefore, no scope for user of the premises for the unlawful activity. Though we are not in a position to dispute the satisfaction of the State Government, in the premises indicated, we have no option but to hold that there was no material for reaching the conclusion in question. There is one more feature which has to be noticed here. Guards had been mounted on 4th of July, 1975 long before the notification had been made. Petitioner had disputed the withholding of the keys of the premises by filing the writ application. After the preliminary counter affidavit was filed by the Inspector of Police, the case was listed on 28-11-1975. On this occasion, the learned Standing Counsel wanted adjournment saying that he would obtain fresh instructions. On 3-12-l'975, the matter was directed to be listed on 15th of December, 1975 and learned Standing Counsel gave an undertaking to file a further counter within ten days therefrom. On 15-12-1975, the learned Additional Government Advocate obtained a fresh adjournment. At this stage -- Mr. Patnaik for the petitioner has sugggested and we find force in the submission that the lacuna was found out and the impugned notification was made on 22-12-1975
8. For the reasons we have indicated above, we have no option but to hold that the notification in question cannot be sustained in law. Accordingly we allow the writ application, quash the notification under Annex. B and direct the State Government to release the property and put it back into possession of the petitioner forthwith. The petitioner shall have his costs. Hearing fee is assessed at rupees two hundred.
DAS, J.
9. I agree.