Report No. 38

Appendix IV

Constitutional Aspects of Some Sections of The Post Office Act

Main section in the Indian Post Office Act	Connected section in the Indian Post Office Act	Other analogous laws	Constitutional position
Section 9-
It empowers the making of rules as to registered newspapers.	If the newspaper is registered under the Post Office Act, it gets the privilege of concessional postal rates under rule I, Indian Post Office Rules, 1933		The section does not seem to conflict with any provision of the Constitution. Rules under the section must, of course, keep themselves within the limits allowed by the section 1 I.
Section 19(1) base the sending of explosives, dangerous and filthy articles, noxious substances, living animals etc., likely to causes injury to postal articles or to an officer of Post Officer.	Section 23(1)-Any postal article sent by post in contravention of any provision of the Post Officer Act may be detained, and either sent to the sender or the addressee (charging prescribed additional postage, if necessary).	Section 5(1) of the Indian Explosives Act, 1884 (4 of 1884) empowers the Central Government of regulate, by rules, the transportation etc. of explosives. A breach of the rules is punishable under section 5(3)(b) of that Act.	The restriction is reasonable, Explosives in a postal article, may when the article is stamped for defacing the postage stamps, explode the article. This appears, therefore to be a reasonable restriction, in the interests of public order, or in the public interest. It, therefore, seems to be valid. Possibility of its coming into conflict with the freedom of speech and expression is small.
	Section 23(3)(a) authorises opening and destruction2.
Section 19(2)bars the sending by post of any article or thing likely to injure postal articles in course of transmission b Post or any officer of the post office.	Section 61 provides for punishment3.
Section 19A- bars the sending of tickets, etc., relating to unauthorised lottery4.	Section 23(1)- empowers detention of the articles, plus return to the sender or addressee.	Section 294A-Indian Penal Code punishes the keeping of lottery houses, or publication of proposals as to lotteries.	The restrictions do not raise any question of freedom of "expression" under Article 19(1). It is , therefore, unnecessary to consider whether they fall under "morality" in Article 19(2).
	Section 23(3)- Notwithstanding anything in sub-section (1), any postal article sent by post in contravention of section 19A, may "under the authority of the Postmaster General, if necessary, be opened and destroyed." [Section 24 does not seem to apply; see its opening words.]
Section 20-No person shall send by post- (a) any indecent or obscene printing, photograph, lithograph, etc., or any other indecent or obscene article5. (b) or any postal article having there on on or on the cover thereof.- any words, marks or designs of an- (i) Indecent, (ii) obscene, (iii) seditious, (iv) scurrilous, (v) threatening, or (vi) grossly offensive, character.	Section 23(1)-Any postal article sent in contravention of any provision of the Post Office Act, may be detained an either returned to the sender, or forwarded to its destination (charging prescribed additional postage, if necessary).	(a) Section 292-Indian Penal Code punished publication, sale, distribution, etc., of obscene books, pamphlets, etc.	(i) The provision relating to obscenity or indecent mater is justified in the interests of decency or "morality" under Article 1992) of the Constitution Hence, it is valid so far as the substantive aspect is concerned. As to the meaning of "obscenity" under the Indian Penal Code, see a decision of the Supreme Court6 which upholds the validity of section 292, India Penal Code7.
	Section 23(2).-Any officer-in-charge of a Post Office or authorised by the Postmaster General in this behalf may open any newspaper, book, packet or sample suspected to be in contravention of section 209(a).	(b) Section 1192) (b) of the Customs Act, 1962 (52 of 1962) empowers the Central Government to prohibit the import of goods for various purposes, one of which is "maintenance of standards of decency or morality". (Further procedure to be followed, if the prohibition is violated, is contained in section 112-113 of the Customs Act).	(ii) The procedural part, however, requires consideration. Section 2393)(b), read with rule 317 of the Indian Post Office Rules 1933) authorises (inter alia) the destruction of the article without notice to the addressee.. (Contrast section 24 of the Act, which provides for notice, etc.).
		(c) Section 98(1)(c) of the Code of Criminal Procedure, 1898 empowers the issue of a search warrant by a specified Magistrate, for search of a house etc. for obscene articles, if found int eh house, are to be carried to a Magistrate).
	Section 23(3)(b).- Not -withstanding anything contained in subsection (1), any postal article sent by post in contravention of section 20 may be disposed of in such manner as to Central Government may, by rule, direct. (See Rule 217, latter half, of the Indian Post Office Rules, 1933, which authorises, inter alia, destruction of the postal article).	Section 3(c) of the Dramatic Performance Act, 1876, prohibits, (inter alia), the display of a dramatic performance likely to deprave and corrupt persons present at the performance. There is no provision for giving notice, and this provision has been held to be void8.
		(d) A somewhat similar provision is contained in section 5B of the Cinematographs Act, 1952 (37 of 1952). There is also a power to forfeit certain publication in the Young Persons (Harmful Publication) Act, 1956 (93 of 1956). But both these Acts contain procedural safeguards. Thus, the Cinematograph Act, 1952 section 491) and 5C, provide the Young Persons etc. Act, 1956, section 5, provides for judicial review by the High Court9.
			Section 23(3)(b) contemplates no notice to the addresses. This is also the position under section 3, Dramatic etc. Act, 1816. Rule 217, relating to postal articles governed by section 20, authorises the destruction of the articles or disposal in such manner as the Postmaster General directs. The requirement of procedural reasonableness has therefore to be considered10.
			The requirement of notice and judicial review have been regarded as very important in such cases, to support the validity of provisions interfering with the fundamental rights of freedom of speech and expression11.
			A Power to approach the High Court may save the validity of such restrictions12.
			It was held in a very early Allahabad case13 that destruction of copies of a book which was obscene could not be ordered by the Magistrate, in the Magistrate, in the absence of a specific power. (The decision related to section 418 of the Criminal Procedure Code as it was then in force. The present section is specific on the point).
			In a case under the Post Office Act14, it was not offensive, dangerous , filthy, noxious or deleterious within section 19. It was also observed, that even if rule has been made to cocaine by post, the sending of articles by post in contravention of the rules so made did not seem to be an offence under section 61, which only deals with the sending of article sin contravention of the sections themselves, i.e., section 19 and 2015.
			In one Calcutta case16, a prosecution under section 61 of the Post Office Act read with section 20 for transmission by post of a printed post-card containing an advertisement of a patten medicine language of an obscene nature, was upheld and the court adopted the well know test in Queen v. Hicklin, 1868 LR 3 QB 306 (371), as to the test of obscenity.
			(iii) The provision as to "seditious" matter is valid. The Supreme Court interpretation of section 124A, Indian Penal Code17 will be applied here also so as to justify the provision in the interest of "public order" within Articles 10(1)(a) and 1992) of the Constitution
			(iv) The provision as to "scurrilous" attacks appears to be valid. It is unnecessary to consider here whether the provisions will be interpreted as "scurrilous" and "indecent" 18though this is not likely19. If such narrow interpretation as placed, the section is undoubtedly valid20, But, eve if it is construed widely, it seems to be saved by "morality" in Article 19(2).
			(v ) The provision related to "threatening" matter does not raise a question of freedom of "expression".
			Hence, it is not necessary to discuss the question whether the prevision may be justified in the interests of of "morality" within Article 1992) of the Constitution21.
			(vi) There is some difficulty about ht word "offensive"22 but it seems to fall within "morality" in Article 19(2) of the Constitution.
Section 21(2)(a)(b) and (c)-Empower the making of rules specifying article which may not be transmitted by post, prescribing the condition on which article may be transmitted by post, and providing for detention and disposal of articles sent in violation of such rules.	Section 23(1)-discussed above, under section 20. Section 2392)-discussed above, under section 20. Section 23(3)(b)-Discussed above under section 20.		The power is, no doubt, wide. The rule may be invalid if they go beyond Article 19(2)23. The validity of the section itself is however, not affected. In any case, if would be neither necessary nor convenient to modify the language of the section as to provide that the rules shall comply with the various heads mentioned in Articles 19. The provision would have to be extremely cumbersome, as it will have deal not only with Article 19(2), but also with Article 19(3)(4), etc.
			Moreover, may of the rules24 would never come in conflict with Article 19. Their true nature and character is not to interfere with the freedom of speech at all, but to regulate packing contents etc. of postal articles, or to exclude from the post injurious substances25.
Section 23-See discussion in this Appendix under section 19, 20, 21. Section 24.- Except and otherwise provided in the Act, where a postal article suspected to contain any of the following three categories26 of goods, namely. (a) any good of which the import by post is prohibited y or under any enactment for the time being in force, or (b) any good of which transmission by post is prohibited by or under any enactment etc, or (c) anything liable to duty , is received for delivery at a Post Office, a notice is to be sent to the addressee "inviting him to attend"within a specified time. The post article is then opened and examined (before witnesses if so directed by the director General), and then delivered to the addressee, unless required for the purpose of any further proceeding under the law.			(i) So far as the first category under section 24 is concerned the validity of the section is liked up with the other enactment (Such as the Imports and Export Control, etc., Act or the Customs Act), under which import is prohibited. The procedural given in section 24 is also a fairly reasonable one, and prima facie, therefore, the provisions of the section as to this category would not raise any serious constitutional difficulty (ii) These remarks also apply to the second category of goods, i.e., good whose transmission by post is prohibited under any enactment. (iii) The third category, i.e., "anything liable to duty", must be confined to good on which a duty is lawfully leviable, and, therefore, (though the section does not say so), action can be taken in respect of this category of goods only where the but is leviable under some other law For thish reason, the valibity of the section in respect of this category need not be not be independently examined. The procedure is also fairly reasonable.
			Note.- Section 24 can, possibly, apply also to goods the transmission whereof is prohibited by an order under section 144 of the Code of Criminal Procedure -(assuming that section 144 can be lawfully used for that purpose)27. It is however, unnecessary to consider the aspect for the purpose of revision of the Post Office Act.
Section 24A- Empowers an office empowered by the Central Government to deliver to the Customs authority any postal article received from beyond India and suspected to contain anything liable to duty, o a Customs authority specified in the Central Government's order. Further action is to be taken by such Customs authority in accordance with the Customs Act, or other law.			This is linked up with the Customs Act, or other relevant law, which imposes the duty. The power can be exercised by an officer of the Post Office empowered by the Central Government and is confined to articles revised from beyond the limits of India, and suspected to contain anything liable to duty Its validity in this context need not, therefore, be examined minutely. It is not likely, in practice, to interfere with freedom of speech, and so far as the other rights guaranteed by the Constitution are concerned, the provision seems to be a reasonable restriction in the public interest.
Articles sen m contravention of Import and Export (Control) Act. 1947 or the Customs Act, Section 25.- Empowers and officer of the post office empowered by the Central Government in this behalf, to search for any goods in course of transmission by post, being goods whose export or import is banned or restricted under the Customs Act or other. The goods are ot be delivered to an officer appointed by the goods in such manner as to Central Government may direct. "In carrying out any such search such officer of the post office may open or unfasten, or cause to be opened or unfastened any newspaper or any books, pattern, or sample packet in court of transmission by post.			(1) The section is connected with the restriction under Import and Export (Control) Act, 1947 or under section 11, Customs Act, 1962 or similar laws,. Most of these are within the ambit of the words,'in the interest of general public' used in Article 19(6) o f the Constitution. In case the restrictions imposed in those other Acts are themselves held to be void, then section 25 of the Post Office Act will be void in relation to those restrictions. Its validity need not be independently considered. (2) The last sentences of this section does authorise the opening of many postal articles, but not letter. Hence, in practice, its coming into conflict with the freedom of speech is not likely.
Section 26.-Empowers the Government or an authorised officer to order to intercept, etc. postal articles in a public emergency of for public safety or tranquility.		There is a wider provision for interception in rule 23, Defence of Indian Rules, 1962.	(i) Interception of letters under section 26 might conflict with the freedoms of expression, under Article 19(1)(a)of the Constitution.
			(ii) Interception and Destruction V.P.P. article might conflict with the sender's freedom, of property, under Article 19(1)(g) of the Constitution. (iii) Interception and destruction of articles, ordered by post and already paid for by the addressee might conflict with the addressee's right to property, under Article 19(1)(g) of the Constitution. If there article are not paid for , such interception etc. might affect the sender's similar right. The last two kinds of conflicts, however would be rare, in view of the circumstances in which the order under section 26 would be passed, i.e., publicsafety, etc. Therefore, only the first kind of conflict with the Constitution required to be considered,. It has been separately discussed28.
Section 27(1).-Where an article is received form a place beyond India, bearing a used fictitious stamp, the officer-in-change of the Post Officer shall send a notice to addressee to came to take the delivery.			(a) In so far as the section affects the sender, he will be in a foreign country. Hence no question of fundamental rights arises. (b) In so far as the section affects the addressee, the position is this-
Section 27(2)-If the addresses appears and agrees to make known the name of the sender and to delver the fictitious stamp and the part containing the address, article shall be delivered to him.			The addressee has two fundamental right with regard to such article, namely:- (i) freedom of speech and expression (which includes, the right to seek and receive ideas and information, through any medium);
Section 27(3).-If the addressee absents himself, or if he appears and refuses to make known the name of the sender or refuses to deliver the part of article containing the fictitious stamp, the article shall not be delivered to him and will be disposed of as the Central Government may direct.			(ii) right to property, if the addressee has pre-paid the price for the article, or if an article belonging to him is sent back by post, by, say, a repairer;.
			At first sight, the restriction envisaged by section 27(3) may appear to be v of the Constitution, on the ground that the penalty qua the addressee has no bearing to or relation with any crime of the person penalised (the addressee).
			The sender (or his servant) or some other person may be the guilty party, and they are not the representatives or agents of the addressee.
			But the answer is, that the crime is with regard to foreign postage,and to check it or to punish it this course is necessary, as it would be difficult to trace the actual offender.
			Further, the penalty by way of detention of the article and sebsequent, in such manner as any bee directed by the Central Government, is imposed only or refusal of the addressee to make known the address and name of the sender, etc The restriction therefore, appears to be reasonable, and in the pubic interest.
Section 27(b)(1)(a) empowers an offer of the Post Office authorised by the Post authorised by the Post Master General to detain any postal article suspected to contain any newspaper, book, or document, containing seditious matter (i.e., matter (i.e., matter punishable under section 124A, Indian Penal Code). Section 27B(2).-Notice to be given to the addressee. Section 27B(3).-Order passed by State Government after notice subject to review by the High Court.	(i) Section 99A, Code of Criminal Procedure, 1898, empowers the State Government ot seize any document or newspaper r or book as defined in the Press and Registration of Books Act, 1867, if its seditious or promotes hatred, etc. or hurts religious feelings.	Section 27B..-(i) Detention of seditious article will not violate the Constitution as such action will be in the interest of the security of the State of public order. (ii) The Government order is not final, but can be judicially reviewed by the High Court. Hence, procedural validity is satisfied.
Section27B(1)(b).-Empowers such officer to detain any newspaper as defined in the Press, etc., Act 1867, printed otherwise than in conformity with the rules laid down in that Act.		(ii) Under section 4 of the Young Persons (Harmful Publications) Act, 1956, the State Government is empowered to declare any publication as likely to corrupt young persons and incite them to commit violence or offence, and to order forfeiture of every copy. This order is open to judicially review by the High Court, on the application of any person interested in the forfeited article. (iii) As regards the Press and Registration of Books act, 1867, the relative provision in section 27 of the Post Office Act is linked up with that Act of 1867. It may also be added, that it has been held that the Act of 1867 is not violative of Article 19(1)(a) of the Constitution, as it does not, in fact, place any more restrition than is necessary for registration The object of registration under 1867 Act is merely to obtain information about the press and their publication29. The 1867 Act was not intended to establish control over printing presses and newspaper, but to regulate printing presses and newspaper and to preserve copies30. In any case, the validity of section 27B, Post Office Act, need not be independently examined. (iv) Section 27B and 27C of the Post Office Ac,t in way, only aid the law given in section 99A of Criminal Procedural Code31 by providing for detaining the objectionable article, and sending it to the offices appointed by the State Government. It may be noted, that section 99A, Criminal Procedure Code is wider, as it covers also articles which are violative of sections 153A and 295A of the Indian Penal code.

1. See rules 1, 30, 30A, 212, Indian Post Office Rules, 1933.

2. The power under section 2393)(a) is in addition to destruction under rule 214, Post Office Rules.

3. See also discussion relating to section 20, on the point whether breach of rules is an offence.

4. Cf. rule 44, Indian Post Office Rules, 1933.

5. A similar provision is ection 11 of the (English) Post Office Act, 1963 discussed in Russell on Crime, 91964), Vol 2, p. 1427.

6. Ranjit Udeshi v. State, AIR 1965 SC 880.

7. See also Shanker & Co. v. State, AIR 1955 Mad 498 (501), para. 9, upholding the validity of sections (vi) of the Press (Objections Matter) Act, 1951, in so far as it related to obscene or indecent.

8. Section 3(c) of the Dramatic Performance Act, 1876 was held to be void in Stete v. Babbo Lal, AIR 1956 All 571. The Point was considered, but not decided,in Harnam v. State, AIR 1958 Punj 243 (244).

9. Compare also, section 4, Criminal Law Amendment Act, 1961 (23 of 1961).

10. As to the invalidity of section 3(c)of the Dramatic Performance, etc. Act, 1876 see State v. Baboo Lal, AIR 1956 All 571. The point was considered, but not decided, in Harnam v. Punjab, AIR 1958 Punj 1243.

11. Cf. Rama Shankar v. State, AIR 195 All 562 (568, 569), para. 12, relating to section 15 of the Press Emergency Power Act, 1931, which empowered the District Magistrate to restrain the printing of newsheets.

12. Cf. Shanti Lall v. State, AIR 1954 Bom 508 (509), upholding the validity of section 11 of the Press (Objectionable) Minister) Act, 1951 in view of the position for judicial review.

13. Empress of India v. Indarman, 1881 ILR 3 All 837 (844) (Straight J.).

14. Section 521, Code of Criminal Procedure, 1898.

15. Emp. v. Ismail Khan, 1915 ILR 37 All 289.

16. Sarat Chandra Ghose v King Emperor, 1904 ILR 32 Cal 247 (248) (Ameer Al and Part JJ.).

17. See Kedar Nath v. State of Bihar, 1962 Supp 2 SCR 769: AIR 1962 SC 955.

18. Cf. P. Ramarathnam, (1964) 2 MLJ 440 (section 293A, Indian Penal Code-Madras Amendmen-upheld) (Kalasham J.) ("Indecent and Scurrilous").

19. Cf. Shankar & Co. v. State, AIR 1951 Mad 491 (501), para. 8 as to section 3(v), Press (objectionable Matter) Act, 1951.

20. Cf. Krishan Sharma v. State, AIR 1952 Sua 285(30), para. 6, regarding section 3(v) Press, etc., Act, 1951.

21. Compare section 503, Indian Penal Code.

22. See Basu Commentary on the Constitution, (1965), Vol. I, pp. 671-672.

23. The matter is discussed in Basu Constitution of India, (1965)

24. See rules 8 to 43, and 44 to 46, Indian Post Office Rules, 1933.

25. Cf. discussion in Hamdard Dawakhan v. Union of India, AIR 1960 SC 554 (564), para. 20.

26. this is not a reproduction of the language of the section, but an analysis.

27. As to the use of section 144, Code of Criminal Procedure, 1898 to restrain freedom of the press, see-

(i) P.T. Chandra v. Emp., AIR 1942 Lah 171 (172) (FB) (Trbune case).

(ii) Ardeshir (in re:), AIR 1940 Bom 42 (43).

(iii) Babu Lal v. State, (1961) 3 SCR 423: AIR 1961 SC 884.

28. See detailed not relating to section 26.

29. G. Alavandar (in re:), AIR 1957 Mad 427.

30. Taramati v. Adll. District Magistrate, Kutch, AIR 1964 Guj 278 (280).

31. As to the validity to section 99A, Cr PC see N. Veerbrahman v. State, AIR 1959 AP 572 (576), para. 13 (Provision of the judicial corrective relied on for maintaining the validity).

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