Indian Post Office Act 1898

[Cites 227, Cited by 0]

Law Commission Report

Indian Post Office Act 1898

LAW COMMISSION
OF -INDIA

THIRTY-EIGHTH REPORT

INDIAN POST OFFICE ACT, 1898
February, 1968

GOVERNMENT OF INDIA : MINISTRY OF LAW
61 Law----2



EXPLANATION OF ABBREVTATIONS USED IN THE REPORT
S. No.»---Serial Number in the Law Commission's file on the subject.



REPORT ON THE INDIAN POST OFFICE ACT, 1398

CON'I'EN'I'S
Pangﬁfarzt SUBIECE-MATTE: Patilf.

1 Reference 1:0 thl: Commission . . . . . 1

2 Existing Act . . . . . . . _ 1

3 Scheme of revision . x

.1 Scheme of the existing Act . . 2

5 Rules and tlotiﬁcativns 2

6 Gosnatc Acts . . . . . 3

=7 Ezaminatil:-n of the Act . 4

3 Section 1--"I"it1'e . . . 4

9 Section 2(a)--" Director General " . . . 4

10-41 Sections 2(d), 10 (1), I5, 27. Exp-ianatiens, 36 (1) and 46 (1)-

References to Her Majesty's Government, etc. . . .4

12 Section 1(d}--Mai1shipI . . . .5
3-44 Section 1(_g)---" Postage Stamps " and trunking nuchinci 5
:5 Section 1 (3) and surcharge on stamps . . . . 5

:6 Section 3 (Is) and (E)-Deﬁnition of Post Oﬂice 6

:7 Section 1 110-" Postal Article " 6

13 Section 2(j)---" Postmaster General" . - 5

:9 Section 4 . . 7

19 Sections 4 and 5 . . . . . . 7
2.1-27 Section 6~--L'Lability of Post Ofﬁcc 7
23-29 English law---Statutory provisions regarding Crown liability 10
30 Whether changes necessary in section 6 . I:

3: Liability for 'insured article: I2

32 Liabiiity of the officers ti1emseives-Indian and English itw I3
33 Section 6 and the general question of State liability in tort 1'3
34 Position apart from statutory provisions . :4



(ii)

PARAGRAPH SUB]'EC'1'-MATTER PAGE
No. '
35--~36 Sections 6, 30, etc.--Suggcstion regarding limitation and liability
for rcgistzred articles . .' . . . . . . -16
37-33 Suggestion regarding liability . I7
39 Section 6 and sugges1 ion to make Post Oﬁice liable for misdelivcry,
etc., due to dishonesty, etc. . . . . . 17
40 Section 7 and petitions to President, Parliament, 'etc. 18
41 Section 9-Renewal of registration . I8
42.-43 Section 9-Foreign newspapers 18
44 Section 9-Constitutional aspects I9
45 Section 9 (2) (n)--Intcrvai of 31 days . . . 19
46-47 Section II--Scrvicc Stamps 20
48 Section I3-Customs duties H
49 Section I7--Forged money orders and ﬁcititious stamps . . 2I
5o--5I Section 18 21
52.-53 Section 19 21
54 Section 19A . 21
55 Section 20 21
56-60 Recommendation regarding destruction of obscene articles 22
61 Suggsstions regarding section 20 23
62 Section 20 and communications with the enemy and oiﬁcial
secrets . . ~ . '- . . . . . . 24
63 Section 20 (la) and objectionable matters 24
64 Section 2: , 24
65-66 Section 21 (I) (b)--Certiﬁcatc of posting _ _ 25
67 Section 2.2 3:
68 Section 2.3 -5'
69-71 Section 23 (3) (a) . . 25
72 Section 23 (3) (5) . . . . . . . '. . 25
73 Sections 23 and 27 and Police Officers 2.7
74 Section 24 27
75-76 , Section 24 and action under other sections . 27
77-78 Section 24-Power under ﬁrs: proviso 23
79 Section 24A 23
Section 24A and Customs Act 23

80



(iii)

PARAGRAPH SUBJECT MATTER' PAGE
No.
81 Section 25A . . . . , , ' _ _ _ _ 29
_82---85 Section 26 . . . . . . . . h. '. 29
36 Recommendation regarding section 36 . .: . . . 30
87--92 Section 26 and comments received on the draft Report . . 3 1
93 Recornnendation regarding section 5, Telegraph Act _ . . 33
94 Section 27 . . . . . .. . . . . 34
95 Section 27B . . . . . . . . . . 34
96-101 Sections 2.8 and 29-Court Notices sent by post. . . . 34
102-1o4' Section 2.3 and liability of the State For registered articles . . 36
1:35 Sections 30 and 32 . ., . . . . . 1 37
1o6--1o7 Section 33-insured articles . . . . . . . 37
103 Section 34 and V.P.P. articles . . . . . . 33
mg Section 34. and cases of non-delivery . . . . . 3*?
110-111 Section 39 . . . . . . . . . . 39
112 Section 46--Mone5r Orders to foreign countries . . . 40
113 Analysis of penal sections . . . . . . _ 4:
114 Sections 49, so, 51, 63 and 67 - . . . . . 41
115 Section 52 . . . . . . . . . .' 41
116 Section 53 . . . . . . . . . . 42.
117 Section 53, proviso (Interpretation) . . . . . . 42,
118-119 Section 62 . . . . . . . . . . 42
12.o--121 Section 63 . . . . . . . . . . 42
122 Section 69 . . . . . . . . . . 43
I23--I24 Section 72, Authority for prosecutions section of Act . . 44
125 Suggestion to make certain offences cognizable considered . 44
126 Section 73 . . . . . . , . . . 45
127 Power to place post boxes on municipal lands . . . 4-5
128 Strikes . . . . . . . . . . . 45
I29 Telegrams sent by post in places where there is no telegraph
office . . . . . . . . . . 45'
I30-14.2 Limitation for suits for compensation for postal article . . 47

x43---:44 Locatum of the New Articles 11A and 11B . . . so



(iv)
PARAGRAPH -Sunyqacr-mxrtsn
No.

:45 Limitation--Starting point
14GEEngl.iah law as to limitation

147-156 Meaning of the expression "lp3;", "non-delivery", etc., and
scope of relevant articles relating to can-iers . . . .

I57 _British_Statutes applicable to India on the subject
158 _0ther changes

I59 Amendment of rules not considered

o

160 Appendices . . . . .

A

Page

5x
51

52
55
S5
55
56



(V3

APPENDICES

APPENDIX SUB]'EC.'T-MATTER PAGE
Appendix I Recommendations as shown in the form of draft am-

endments . . . . . . 57
Appendix II . Notes on Clauses . 54
Appendix III Recommendations in respect of other laws (Or rules

under the Act). . . . . . . 70
Appendix IV . Constitutional aspects of some sections of the

Act . . . . . . . . 71
Appendix V Detailed note on section 26 77
Appendix VI . List of some important provisions of Central Act,

dealing with "emergencies" . . . . _ IOI
Appendix VII Statutory provisions as to interception of postal articles

in England . . . . . . 109
Appendix VIII Report of Committee in England regarding intercep-

tion of communications . . . . III
Appendix IX . Legal issues raised by interception of postal arti-

cles . . . . . . . . . I17
Appendixx Position in Canada regarding interception of postal

articles . . . . . . . 126
Appendix XI. Austra]ia--Position regarding interception of postal

articles . . . . . . . 129
Appendix XII New Zcaland--Position regarding interception of

postal articles . . _ . . 1 30
Appendix XIII U.S.A.--Position regarding interception of postal

articles . . . . . . . . 13:
Appendix XIV Liability for registered articles in England 139

61 Law--3



Shri P. Govinda Menon, CHAIRMAN,

Minister of Law, LAW C()MMIiSSlON,
Government of India, 5 Jorbagh, New De1hi--3.
New Delhi. February 24, 1968.

My DEAR MINISTER,

I have great pleasure in forwarding herewith the
Thirty--eighth Report of the Law Commission on the Indian
Post Ofﬁce Act, I898.

2. The circumstances in which the subject was taken up
for consideration are stated in the ﬁrst paragraph of the Report.
After the subject was taken up, a Press Communique was
issued inviting suggestions as to the changes needed in the
existing Act. A study of the subject was undertaken, and a
comprehensive draft Report was prepared. The draft Report
was considered at the following meetings of the Commission :--

81st meeting, on 28th to 31st December, 1966;

82nd meeting, on 30th January, 31st January and
1st February, 1967.

3. The draft Report was revised according to the decision
taken at the meetings mentioned above, and then circulated to
State Governments, High Courts and other interested persons
and bodies for comments.

4. The draft Report as circulated, and also the comments
received thereon, were considered at the 92nd meeting of the
Law Commission, held on the 15th and 16th January, I968.

The Report has been revised according to the decision taken
at that meeting.

5. I may add, that though the changes recommended by
us are 11ot extensive, consideration of the Act involved a
detailed examination of several legal and constitutional issues,
a comparative study on a vast scale, and a research into
several branches of law, particularly torts and contracts.

6. In the drawing up of the report we received :1 great
amount of help from our Secretary Mr. P. M. Bakshi who
collected together all the references and highlighted the points

of controversy on which the decisions of the Commission had
to be given.

Yours sincerely,
J. I.. KAPUR.



REPORT on THE INDIAN POST OFFICE ACT, 1393

1.

The revision of the Indian Post Oﬂice Act, 1893, has Refeﬂmt been referred to the Law Commission by the Government,' and this Reﬁort has been prepared accordingly. One of the points whic the Ministry concerned with the Act desired the Commission to consider was, the rind of limitation for a suit for compe sation for a posta article which is not delivered'. The whdle Act has, however, been referred to the Commission for examination, and consequentially, this Report proposes to deal with the entire Act.

to the Commission.

2. The Indian Post Office Act, 1898 was enacted to re-- English place the Act of 1866. In the Statement of Objects and Reasons annexed to the Bill which led to the existing Act", it was pointed out, that since the 1886 Act was passed, cer- tain defects and omissions had been brought to light and experience had shown that the express provisions of law, as contained in the Act, were, in respect of several matters, not suited to the requirements» of postal work. Further, protection was also needed by the Post Ofﬁce and powers were also' required to enable its ofﬁcers to deal with articles posted in contravention of the Act. Moreover, various schemes, such as postal insurance, the value- payable system and the money order system, remained out- side the provisions of the Act and required legislative en- actment. Finally, with the development of the Post Office, and the knowledge of the course of English Postal legisla- tion, the necessity for some new penalties had become apparent. The 1898 Act was, therefore, intended to remove these diiﬁculties and deﬁciencies and to bring the Act up- to-date.

. 3. The considerations which impelled the enactment of the 1898 Act" show, in a fair measure, the lines on which periodical revisions of the Post Ofﬁce Act should be attempted. They, therefore, constitute a good practical guide in fixing the objectives for revision of that Act it- ;-.)elf. So ascertained, the main objectives for revision would e--

(i) removal of difficulties felt in practice;

(ii) bringing the Act in line with postal systems and facilities introduced later;

(iii) need for new provisions on the lines of ana-

logous useful provisions in the legislation of other countries.

1. S.No. I in L-awC1mmission's ﬁle relating to the Indian Post Ofﬁoe Act, I393.

2. See paragraph 130, et .seq., infra.

3. See Gazette of India, 1897, Part V, page 385.

4. see paragraph 2, supra.

4--6l Law Act.

Sclicinc of revision.

Srlume $5! the isung Act.

Rules and notiﬁcations.

deal with registered and insured articles, and sections 2 I Besides these, of course, the considerations generally borne in mind in revising any Act (9.92, conflict of decisions, constitutional problems, recommendations made in other reports and the like}, have to be kept in view, in zreaising the Act. .

s. We shall first exarnine the scheme oi the Act. The existing Act is intended to consolidate and amend the law relating to the Post Oﬁce in India. Sections. 1 to 3 contain preliminary provisions, and sections 4 to 5 einbody 1:53 exclusive =priv'lI.E:-ge ofpconveying letters reserved to the

-Govemroent. Section 6. deals. with the liability oi the Gov- errmnent or its oﬁicers in respect of loss. misdelivery, delay or damage of postal articles in the course of transmission by post. Sections 7 to 15 deal with the rates of postage and ' incidental - matters. Provisions as to postage stamps are contained in sections lti. and l".'. The general conditions -of transvrgiislssion of postal articles would be found in sections 18 to -- .

Having so far dealt with provisions applicable to all articles, the Act proceeds next to deal in detail with speciﬁc kinds of postal services. Thus, sections 28 to :3 it to 36 are intended to provide for val;.1e--pa'_-,'a.l::-is postal articles. Undelivered postal articles are regulated by sec- tlons ii'? to 39. and provisions regarding the obligations of ships to ca.:'r'_5' and bring letters are dealt within ssotions 40 to -12. Money orders are covered by sections -13 to 48. and, this, the substantive provisions of the Act come to an en . - . .

The Act, thereafter, proceeds to prescribe the penalties for various oifences.

The provisions on the subject -are divided -into two groups, namely-----

tfj ofientes by officers of the Post Ofﬁce. sections 49' to 57;

(ii) other oEences_ sections 53 to 69.

General provisions regarding penalties are contained in sections '30 to 72.

Supplemental provisions contitute sections 73 to '75, and the maximum rates of inland postage are given in the First Schedule. .

5. {a} An examination of the detailed provisions of the Act would reveal, that while the general principles are given in the Act, the Art contemplates rules to be made on a nurnher of important. matters}

1. See, for cotampls, sections 8, 9., to, :3, 1-9. 2:, 2:, 23, 29, :12, 33

35. 36; 37. 39: 40, 43+ 44. 46: 713 and 7:4 3 -

(1)) Besides rules 1i1.'ope'1", there are a number of sub- jects on which notiﬁcations' and orders can be issued; for example, ﬁxation "of rates of inland postagel, declaration of rates of foreign postagez, notiﬁcation regarding delivery of articles to Customs authorities-3, authorisation of officers to search postal articles transmitted in violation of the Customs Act', notiﬁcation of fees for registration5, notiﬁca- tion regarding insurance of postal articles and compulsory insurance", notiﬁcation regarding value--payahle articles', notiﬁcation regarding' gratuities payable for conveyance of postal articles by ships", notiﬁcation authorising remis- sion of sums by money orders", authorising the -issue of postal order") and delegation of powers".

(c) In addition to general orders and notiﬁcations the Act also contemplated a number of special orders by the Government. Thus, in emergency or in the interest of public safety or tranquillity, the Government may direct that -a postal article shall be intercepted or detained or otherwise disposed of in the speciﬁed manner".

(d) The range of the powers to make rules and orders so conferred is, thus, Wide enough. This is understandable in View of the nature of the Act. The business of the Post Office is varied and multifarious. Details of its adminis- tration oannot be covered fully in an Act. The Department being concerned with international communications also, it may not always be possible to lay down..rigid provisions on matters ha-ving international aspects. Further, geographical, economic and other relevant factors go on changing from time to time, and some elasticity has to be ensured for the smooth working 0-f the Act. It is for these reasons that the Act seems to leave a wide discretion to the executive to make provisions on the various matters.

' 6. The main subject of transmission of postal articles is Cosnate dealt with in rthe Indian Post Office Act, 1898. The Post A"- Oﬁice discharges a number of other functions also, and several Acts have been passed relating to these functions.

the important amongst which are listed below:--

(1) The Government Saving, Banks Acts. 1873. (2) The Indian Telegraph Act, 1885.

. Secdon 7.

; Secﬁon IO.

&umnMA . Section 25.

.Smmm2& Sectionsgoandgr.

. Sccﬁon 34.

. Secnon 42.

Section 43(1), earlier Paragraph. Io. Secﬁon 45.

II. Secﬁon 75.

12. Section 26.

'.°oo~::?~m-I-*-9.: u -4 Examination of the Act.

Section I--

Title.

Section 2(3) ' ' Director Sections 2.(d), 10 (I). Is, 379 _ Explanations 36 (I), and 46 (r)--Rc-

ferences to HerMajesty's Govern-

IDCIII, etc. 4 (3) The Post Office Cash Certiﬁcates Act, 1917. (4) The Indian Wireless Telegraphy Act, 1933.

(5) The Telegraph Wires (Unlawful Possession) Act, 1950. r This Report is concerned with revision of the Post Ofﬂce Act, and not with the other enactments mentioned above. .We have, however, considered section 5 of the Telegraph Act, which is analogous to section 26 of the Post Office Act'. - We may also note, that we were requested to con- sider that section'. .

7. We now proceed to consider the important points in connection with the Act which require examination.

8. In sub-section (1) of section 1, the word "Indian" may be omitted, in accordance with recent legislative practice.

9. In section 2, with reference to the deﬁnition of "Director General", it has been suggested', that Members of the Posts and Telegraph Board should be nominated as ex oﬁicio Director Genera-1, so as to be included in deﬁnition of "Director General". The Board, it is stated, is an entity above the Director General, and exercises the powers of Government over the Directorate. Members of the Board are, (it is stated), new full time Members, (and not ex oﬂicio Members holding other posts in the Directorate and functioning as deputies to the Director General). The proposed change concerns the administrative set up of the Department, and we make no recommendation thereon.

10. A suggestion3 has been made to remove references to "Her Majesty's Government", and "British possession", etc., in the marginallr noted sections (i.e., only the words "foreign country" may be retained in these sections). The suggested change could have been made by the Adaptation of Laws Order in 1950. As it has not been made so far, and as the whole Act is not being re-enacted, this verbal change is unnecessary. We do not, therefore, accept the sugges- tion.

11. As regards references to "Her Majesty", etc., and to "British possession", the comment of a State Government"

on our draft Report was as follows: --

"As to the two expressions objected to-, "British possessions" may perhaps be allowed to remain, since some overseas possessions are still left to Great Bri- tain. Retention of "Her Majesty's Government", is,

1. See paragraph 93, infra.

2. S. Nos. 40 and 53 on Law Commission ﬁle.

3. S. No. 96 (Suggestion of the Department).

4. S. No. 170 (ﬂamment of a State Government).

nowever, wholly indefensible. The impression created is that the Queen of England is being referred to as India's Queen as well. In the opinion of the Govern- ment, the references to "Her Majesty" should be de- leted from the Act, wherever they occur."

Our view is, that no change is needed. Deletion of the references might lead to misconceptions. The apprehension expressed in the comment (about an impression being created about the Queen of England) is not shared by us.

12. (a) Regarding "mail ships" deﬁned in section 2(d), Section; a recommendation has been made in a previous report' tc§f1%"--M3"

the effect, that if India is enjoying the powers and priv1- W' Ieges under the Mail Ships Act, 1891, we should have a legislation of our own after enterin into direct conven- tions with foreign countries (if In ia is not an original party to such a convention) . This can appropriately be the subject-matter of a separate legislation, and need not be considered for incorporation in our Post Office Act.

13. We have considered a suggestion' to include "im- §€;ti°ﬂ='v(g)-- pressions taken through {ranking machines authorised by Staﬂgfﬁ the Director-General" i11 section 2(g), which deﬁne and ffankijjg "postage stamp". This seems to be covered b the existing machines. words "impressed . . . . . .or otherwise intimated '. No change is necessary.

14. In this connection, the following comment on our draft Report was considered by us' :--

"It is doubtful if impressions taken through frank- ing machines are so covered, (by the words "impressed . . . . .. etc."), because all the stamps and marks, re- ferred to in the existing deﬁnition, seem to be indica- tive of payment of' postage or other fees, whereas im- pressions made through franking machines seem to authorise and indicate despatch by post, free of charge."

The matter was further considered by us. In our view, no change is needed, and the existing language is wide enough to cover franking machines.

15. The following suggestion, regarding surcharge on 5°Cli°II 2(3)

-stamps, was made by the Department in its comment on "' 5""

the draft Report"---- _ :t]?r§,%,:,°n

1. _Fiﬁ_h Report of the Law commission {British Statutes applicable to India), page 56, bottom, and 57, top, entry No. 144 relating to the Man Ships Act, 1891, etc.

2. S. No. 96 (Suggestion of the Department).

See also section 17 (2)

3. S. No. :70 (Comment of a State Government).

4. S. No. :59 (comment of the Deparuncnt).

_ "This Department has had under consideration for some a proposal for issue of stamps with sur- charge. ' The intention is to enable this Department to issue such stamps for' collecting money for benevolent funds, such as children's fund, etc. There is at present diffi- culty in the issue of such stamps as the existing pro- visions of the Post Oﬂice Act do not permit such stamps being brought out, It is, therefore, suggested that sec- tions :?.(g) and 16 "of the Act may be suitably amended to permit, the issueof such stamps." -

In our view, this is amatter of policy. We do not ex- press an- opinion in the matter.

Section 39,) '16. Section 2, clauses (h) and (k), contain two deﬁni- Bnd (_Ie)-- tions of "the same expression "Post Oﬂice", as spelt with Df°'},'""°" small letters and with big letters respectively. Sir James ° °ft Westland, while presenting the Report of the Select Com-

was a certain incongruity in this', but he said, that there was no diﬁiculty in distinguishing which of the two ex- pressions is used wherever they occur; one refers to a par- ticular building or place, and theiother refers to the De- partment of the Post Ofﬁce. Sinc_e no difficulty has been experienced on this account, the deﬁnitions need not be disturbed.

Sectienz 17. It has been suggested", that in the deﬁnition of 03' P°''"1 "postal article", "money orders" may be added. We are Am-de"' not, however, inclined to disturb the existing deﬁnition in theabsence of any diﬂiculty experienced in practice. 5°°"°"2 18. A suggestion has been, made" to re-deﬁne the ex-

Sijﬁgstmaster pression _"Postmaster General", inlview of certain changes General". In the instructure of the Department and in the nomencla- ture of its ofﬁcers.

The suggestion states----

(i) that there are no longer any "Deputy Post- master-General", who are replaced by "Directors", and

(ii) that the Postmaster General is incharge of a Postal Circle, and further, that in some circles, there is no Postmaster General, but only a Director of postal Services or a Director of Telegraph holds change. In order, therefore, to have a better legal authority, the expression "Postmaster General" should be. redefined, r.Gazettc of India, March :9, 1898, Part VI, page 99. 3-S- N°- 95 (Suggestion of the Department). I mittee on the B-ill which led to the Act, admitted that there ' 7 'as the "Head of a Postal circle including a Director of Posts and Telegraphs or any other officer exercising the powers of the Post-inaster--Genera1."

This is an administrative matter. and we make no re- commendation '_thereori. _

19. It has been suggestedi, that it should be provided Section 4. that the exclusive privilege under section 4 is in the Central Government "in t e Posts and Telegraphs Board". We are not in favour of the suggested change. The "Central Gov- ernment" is the only expression that can be used in the Act; which particular Department of the Government should deal with a particular subject, need not be men- tioned in the Act.

20. We have considered a suggestion' to provide that 5'=°ﬁ°"-5 4 the monopoly under section 4 shall extend to transmis- an 5' sion by air or through air carriers. No such amendment appears to be necessary, as, in section 4(1), the words "by p_osét" seem to .be wide enough to cover transmission by a-ir. .

r ' I I I a a S t.' 6i to-gl. (a) Section 6 makes certain stringent provisions as Lggbﬁiliy of ' Post Oﬂioe.

(i) liability of the Government, and '

- (ii) liability of the Post Ofﬁce employees, as to"- loss, delay, inisdelivery, damage, etc., of postal articles in course of transmission by post.

As to the Government, it provides, that the Government shall not be lia-ble, except where the liability is expressly undertaken under the Act. As to officers of the Post Oﬁﬁce, they are liable only if they have caused the loss, etc., frau- dulently or by wilful act or default.

22. In the notes on clauses to the Bill which led to the Act3, it was stated, that in this clause the provisions of the corresponding section in the Post Oﬂice Act, 1866 (section-

65) had been "amended"-". No further explanation is given there. But it would appear from the proceedings in the Council after presentation of the report of the Select Committee on the B1115, that some persons, mostly, strange I. S. No. 96 (Suggestion of the Deparunent).

1. Certain other provisions-sections 4. (r)(c) and 5 (b)----are proposed to be sections extendcdroaircraft, by amendments as proposed in :1-ﬁg' vefy Report, to 4 (r)(c) and section 5.

3. Gazette of India, November 6, 1897, Part V, page 335.

4. The earliest section was section 9. Post Oﬂice Act I f 3 - See. Winter v. Way. (I863) i ICR 200, 202. ' ( 7 0 I 54)

5.. Gazette of India, March 19, 1898, Part VI, page 99.

to say, officials, had desired to fasten upon the Post Office Oﬁlcials a greater responsibﬂi than the Bill originally provided. Sir James" Westlan , referring to these sugges- tions, replied, that the clause deﬁned the responsibility of the Post Office officials "in'terms which has nearly as possi- ble expressed the English law on the subject". He stated that the diﬂiculty of making a Post Ofﬁce oﬁicial liable for more neg ' 'T _ e, that is to say, for doing something which, if the oﬁcal had taken better care, he would not have done, arose out of the circumstance that Post Office business has always to bedone at enormous pressure. In the despatch

-of letters and in their delivery, "any extremely careful

-sorting of letters is a practical impossibility."

23. The apparently sweeping exemption from _liability, embodied in section 6, has to be read in the light of the judicial decisions thereon, Thus, it has been heldl, in one case, that the word "loss" does not mean "pecuniary or other loss to the owner of the goods sent by poet", who has been wrongfully deprived of the possession or enjoyment thereof. It means loss to the Government of the article sent by st. In that case, a V.P.P. parcel delivered to the Post 0 use was not delivered by it, and the Governmeiit was held liable. The court observed, that a loss occurs where the department involuntarily or through inadvert- ence loses possession of the goods. If the Government does not prove that the article has been lost, it cannot escape liability to pay compensation for loss caused by non-

delivery.

Similarly, it has been held", that, where, by reason of a label having been torn-, it is not possible to deliver a V.P.P. article, the post office is not exonerated by section 6 or section 34.

24. In an Allahabad case", which contains a lengthy dis- cussion on the subject, it has been held that the exemption in section 6 does not give the Government the right to do what it likes with the articles entrusted to its care. The Post Oﬁce, if it accepts a V.P.P. article and does not realise the price at the time of delivery, is liable in damages to the sender. Section 6 was intended by the legislature to serve as a shield tor the post office and its officers "in the legiti- mate discharge of the functions", but the shield cannot be converted into a weapon of inequity in- the hands of a gov- ernment department enjoying a monopoly of essential

1. Union of India v. Norayan, A.I.R. 1955 Cal. 371, 372 (1113,).

2. Sears ofszatefor India V. Radhey Lol, I.L.R.46 All. 455 ;A..I.R. I9'-*4' - 692 (D.B.)- .

3. Union of India v. Firm Ram Gopal, A.I.ll. 1960 All. 672., paragraph 17 19 and 4° (Dhawﬂ I-). But see Umon of India v. Ramji Lot, A. LR. 1955 All. 183, :86. paragraph to.

-service; the section does not empower the post office or its officers to do what they. like with articles entrusted to their care or commit wron 1 acts against the owners of these = articles. The courts ed at length and followed the 'obsecvat1ons.oi the? Supreme Court in C.I.T. v. 'P. M. Ra:thod' to the eﬁect. that the post oﬁce becomes an agent

-of the seller for"the«-recovery of the price and if it fails to recover the price and delivers the goods, it i liable for the damages to the seller. In the Supreme Court case, the facts were these: The assesses was a manufacturer of per- fumery at Rathlam (in Madhya Bharat---a Part B State) and sent out goods by V.P.P. to various customers in Part A and C States, and the question was whether the in- come from these" sales accrued in the Part A and C States, where the payments were made, or in Ratlam where the .proceedings were handed over by the post ofﬁce to the assessee. (In the latter case, the concessional rates of in- come-tax then applicable to Part 13 States would come into play). The Supreme Court held, that payment to the t oﬂicei was a payment to it as agent of the seller and no as agent of the buyer. The Supreme Court pointed out, that goods handed over to the post office could be delivered to the buyer solely against payment-, and this payment is re- ceived for the seller. Once the buyer paid the price, it is the post office that is responsible for the payment of the money to the seller. Therefore, payment to the post ofﬁce is payment to the seller at the place where the goods are delivered. This would negative the post oiﬁce being an agent of the buyer. "This shows that whatever he the jural relationship between the seller and the post oﬁice in res- pect of carriage of goods sent by the seller under the V.P.P. system, it becomes the agent of the seller for the recovery of the price and if it fails to recover the price and delivers §:edgoo1c:l3s,, it is liable for damages to the seller, I.L.R. 28 a . 2 .' . -

I Now, the decision in 28 Madras 2131 referred to by the Supreme Court was to the effect, that the post oﬁice, when it accepts an article as _V.P.P. is bound by contract to deliver the article to the addresses and to recover the price. If it does not do so, it has committed a breach of contract, for which it is liable in- damages. In that case, a parcel con- taining jewellery was delivered for transmission to Colombo as a V.P.P. article, but it was, by mistake, de- 7 livered. without collecting the amount from the addressee. The Post Oﬂice neither paid the money nor returned the article to. the sender, who thereupon sued for recovery of the value of the parcel. Section 34,of the Post Ofﬁce Act, proviso, was relied upon in defence, the argument being

1. C.I.'1"..v. -P. M. Rathad, A.I.R. I959 S.C. 1394, I397, r398.

2. (gfggizesghgéwsv. Sursﬁeiroglgtcte, (I905) I.L.R. 28 Mad. 213, 215 Engli sh ls*H--

statutory provisions regarding Crown lia-

hﬂity.

lll that actual realisation »:Er_om the addressee is a condition precedent to the State's liabiliqr to pay the amount .to the sender.» This contention was rejected, on the ground that the "ti": as i';"*..i1*b......1*"*='°*-*.3'1.° st cc.-to "y" an-rages or» 3 very . E W1 - mt-coliectingsthe mo.ney"1. The court observed,.ihat the Post Oﬂlceis bound by contract to-collect the money when it delivers the article. - ' 'The Madras decision is. thus, expressly based on con- tract. . . -

26. Iiifan Urissa case'*', the liability of the Post Office for insured articles was regarded as statutory and not contrac- tual. Whatever be the basis of the liability, it is clear that the sweeping provisions of section 6 and section 34, proviso, would not come in the way of recovery in such circum- stances.

2'3'. As regards the contractual element, it may be in- teresting to note an English case", in which it was held. that the "Postmaster General is in a quite diﬁerent position from a private individual. He is responsible to the Crown for running a 'public service and incidentally a monopoly. In accepting postal articles, he does not enter into a con- tract for carriage, and the mere acceptance of a postal packet does not create any contractual tie. (That case re- lated to a registered postal article sent for lliternational transmission, and there were provisions in the Post . Office Warrant and in the certiﬁcate of posting which excluded a right to compensation).

28. In England, under section 3(2) of the Post Oﬁce Act, 1353, the "re 'stration'* of or giving of a receipt for a postal pocket? or t e giving or obtaining of a certiﬁcate of posting or postings or delivery of a postal packet shall not render the Crown in any manner liable for the loss of the packet or the contents thereof. Under section 2(1) (a) read with section 17 of the Crown Proceedings Act', 1947, the Crown is liable inirespect of certain acts of its servants or agents. But this does not-'ap ly in matters relating to a postalpacket, under section 9 1) of that Act. Section 9(2) or that Act, however, provides, that proceedings may he brought against the Crown in respect of a registered in- land pocket for the loss or damage due to any wrongful act done or any default committed by a person employed as a servant or agent of the' Crown while performing functions in relation to the receipt, carriage, delivery or other deal- ings with the packet. The amount recovenible is limited so I. No "ages were cited. _ g - -

2. Defaaxnarndo 1'. Union of India, A.I.R. 19:55 Orissl :18.

3. T:-ggfus &. _(,."o..Lad. v. Office. (1957) 2 All ER. 387, 394(C_A_)

4. See also 28, _ _

5. The Crown Proceedings Act, 1947 (re and 1; VI 4;», 4,";

.11 as not to exceed the,ma_rke-t value of the packet, and cannot also exceed the maximum" amount available under Post Oﬂlce Reguictionsghaving, regard to the fee paid for -regis- tration}. Relief is available only on a claim by the sender; or the addressee- 'There are other detailed provisions, which need not; beconsidered.

29. The basis of the cause of action for registered in- land postal packets, by virtue of section 9(2) (13) of. the Crown Proceedings Act, 1947', has been described as "statu- tory, but resembling bailment"-. The history oi.' the law, as explained by Lord Denning in a recent decision, may he referred toz. ' a Before 1947, when you sent a letter by post and it was lost or damaged in transit, you could recover nothing. You could not recover in contract, because it was held that neither the Postmaster General nor the Post Office, made any contract to carry the letter5_ You could not recover in tort, because the Postmaster General was not liable for the torts of his subordinates'. Even when you sent a registered letter, f,rou_could. recover nothing for -the loss of it, because- any claim was excluded by statute".

Since 1947 you-can still recover nothing for ordinary letters; and nothing for registered letters sent overseas. It. is still the case than no action lies in contract'. Nor in tort"- But the law has been changed entirely as to registered in-r land postal packets. By section 9(2) of the Act of 1947. it is enacted that 'proceeding shall lie against the Crown under this suh--section in respectiof loss or damage to a. registered inland "ms-ta-1 packet" '. _'I'he cause of action is, to my mind, entirely statutory. The section does not merely:

lift a barrier to proceedings against the Crown {as it does- in cases under sections 1 and 2 of the Act}. It gives a new statutory cause of 'action.

One thing is quite clear. The Post Office is a beiiee of the registered' packet and when you examine this new statutory -cause of action you will ﬁnd it is very like the I. For details,-"sea Haishury, 3rd 1, Vol. 30, page 173, paragraph 3'33-

2. Buildings and Gin'! Engi ' Holidays Scheme Mm-uigemem' Lad.

_ v.PrO',(19s5)2W.L.§.z , ' 3 p_11B,R_ (C.A?)5, dgleﬁsscd in 235 Law Ti7;n'es7i137?' {I965 I I63'

3. I.'Wn': eldlv. Lord Le Despemer (I-;:r8} 2 Cowp, 754, 754, (per Lord:

4. Baaoisdge v. Postmctmr-General', (1905) x KB. 173 ; 22 T.L.;R-' 7°: - -

5. See: section 13 of the Post Office Act, rgos.

6.Tri¢' v.Po:¢O {1i),2 .B. - W..R. '. 1 M BR' 387, 95'.' Q 353 a E1957') 3 I L I.fI957}J section 9 (1) of' the Crown Proceedings Act, 1941.

'Whether changes neocssaryi 11 section 6.

. be expected Liability for m 3 articles.

action which the common law gives on a bailment. So much so that, in matters not specifically covered by the action recourse may' be had, I think, to the genera]. prin- ciples governing t e law of bailme-nt. At common law, bailment is often associated with a contract, but this is not the casel-2. An action against a bailee can often contract, nor in tort, but as an of the possession incidents of this always be put, not as an action in action on its own, sui generis, arising out had by the bailee of the goods''-*. The cause of action are not to be' found by lookin at the old books on detinue and trover. We have outl'v those forms 01 action, together with trespass and case". Suﬂice it to say at the present day that if goods, which have been delivered to a bailee, are-lost or damaged whilst in his custody, he is liable to the person damniﬁed (who may be the owner or me bailor) unless the bailee proves that the loss or damage is not due to any fault on his part". Likewise the Post Office (when they have accepted a registered packet, and it is lost or damaged whilst in their custody) are liable to the person damniﬁed unless they can prove it was done Without any fault on their part", but as a matter of machinery the action must be brought in the name of the sender or addressee".

30. -The language of section 6 may thus create problems as discussed above"'. But it does not appear to be desirable to make any verbal amendments in the section, the reason being that, in the first place, it will be better to wait for some time and to see if difﬂculties arise; and,-in the second place, the law relating to State enterprises in general may to . develop in the near future, and if any points arise, they could be dealt with on a study of the concrete points. _

31. As regards insured articles, under section 33 of the Indian Act, subject to the prescribed -conditions, the Cen- tral Government is liable to pay to the sender compensa- tion not exceeding the amount for which the postal article has been insured, for the loss of the postal article or dam- age caused in transmission by post. But the compensation I. Reg. v. Mcﬂorzald, (1335) x5_ Q.B.D. 323 ; x" T.L.R. 561.

2..é'l:I§ux. v. Great Eastern Railway, (I895) 2_Q.B. 387 :1 R.L.R. 517

3. Winﬁeld on the Province of the Law of Tort, page mo.

4. Fif00t's History of the Common Law, page 24, Midland Sizmmes v. Scrumm, (1961) A.C. 44.6 (1962): W.L.R. I86 5 (I962) ; I All E.R. 1 EJ... (E).

5. Lawn; V. Cooper, (I964) 2 All ER. 929, C.A. 5 (1964) 3 W.L.R. 573.

-6. Goldman v. Hill, (19:90 I K.B. 4.43 ; 35 T.L.R. I46 C.A.'

7. Goldman v. Hill, (1919).: K.B. 4.4.3, 455, (per Scrutton LL).

3. See section 9 E2) of the Act of :947 at the beginning and end,

9. See section 9 3) and (4).

I0. Paragraphs z2.--2§, supra.

is not to exceed the value of the article or the amount of thejdamage. This pmvision seems to heve worked srnoothlzv'. and need not be disturbed, so far as its substance 13 con-

oeruecl.

32. (:1) So far as the eﬁicers themselves are concerned. section 5 of the Indian Pest {Jﬁice Act pravidee, tliat an thBmse'lm_ DfE:CE'.'l' oi thepoet omce shall not incur any habilaty by 1,,,1;,,,, and reason of loss, misdelivery or delay of or damage, . to B. English postal article in course of transmission by post, unless he LEW'- has caused the same fraudulently or by his wilful default.

"Default" has been interpreted as failure in duty, care, etc. which is the cause of some untoward eve.-ntl.

[b} In England, an officer of the Crown is not subject to any' civil liability for anything done or omitted to be ' done in relation to postal packet, except at the suit of the Crown".

The English Act gees too far in excluding liability even of the servants for a postal packEt'«'.

In this respect, the Indian Act is more just and fair to the sender, as section 6 preserves the liability of the postal ofﬁcer for wilful eats.

33. While on section 6, we may draw attention to a pre- Swim 6 vious report of the Law Commission', in which the general md 13,:

question of l.iabiIi_t:,r of the State in tort was considered. general question of The recommendation made there was, in substance, to §;§§'?:.1'§'m""€. the effect that (so far as is material to the subject under discussion) while the State should be generally liable for the torts of its servants and agents, the existing immunity under the Indian Post Office Act, 1398, may be preserved".

I' p . Rikhdn La! v. Bammasi Singh, A.I.R. 1932 A11. 139. . Section 9 (1), Crown Proceedings Act, 1947.

See Gamer, Administrative Law, (1953), 131332 2.15. Winﬁeld on Tort, (1963), pm.-. 53.

. See alse Wade, AcImin:is1rativ-e Law, page 220.

First Repart (Liability of the State in Tort) page 42 pafagra 11 55

5|-lb-Pﬁrilcraph 'V.--Exeeptions-Item (tr) (hﬁecellmeotisl. P

7. Qftmlﬂart: the '§edm~a1'ron Claims Act, 221 U.S. Code (1943 ed) [Judi-

cxery and Judicial Proceqm-e. ye-ction 2530 {bl} which barred "Any claim gtﬁtgfrrlie loss, miscarriage or negligent tmnsmissien of [em-13 or a. Title. 28 E18. Cod: (I964 Edd) deals with the question.

I-I .0"-"*9-'-_|-In "£4 'l'°=it1'¢ﬂ 3%.". It would' he an-interesting inquiry --'to man . 53 '-0 jg:-',',,";";£§y°"' whet wouldebe the position of the Post Oﬂice. apart rum gm,-5,-,,,,_,. statutory provisions. The following points maybe ma :-

(i) The Post Oﬁice is not perhaps a "common carrier" as known to the common Law.'-2 Therefore, the oommorl law rule of abso]ute'J.ia'biliE.r of a carrier séith certain qualiﬁcations} may not apply to the Post ce.

(ii) The Post Oﬂice is not {apart tram V.P.P. and insu.reci- articles) a bailee by contract, because, (apart from V.P.P. and insured articles), it does not receive any consideration from the sender, and 'what it receives 'is merely _a statutorily ﬁxed fee. It. is, of oourse, possi-

ble to ergue, that such fee' is the consideration for carrying all kindslof postal articles, but the position?' is not very clear as to how far there is a contract. If there is no contract, the Poet Ofﬁce is not a bailee, by contract, because hailment requires delivery of goods "on contract" under the Indian Contract Act', Hence the obligation of a baiiee to take as much care of the goods as a men of ordinary prudence would take of his

-own good:-:5, may not apply. It must, however, be noted, that in an English case--the Winkﬁeld---the Postmaster General has been held -to be entitled to sue for damages for loss of mails due to collision of ships

-caused "by the defenciant's negligenceﬁ-7, apparently as a '.5-ailee in goseessinn'-'.

Winﬁeld gives this summary of the case" :--~ "When conversion of a thing 'bailed is C0111- mitted by a third person (i.e., one who is neither baiior nor the baileej, the 'oailee can recover the Iuli value of the thing from the third party. although

1. Cjf._section 2, Carriers Act, I855, which, while deﬁning "common carrier", excludes the G0\re1'EIn1ent-

:2. See also Lane V. Cotton, (1701), I Ld. Raym 645, where it was held that th: Pasunaster General is not 3 common carrier. In that case, he was held not liable for the toes of Exchequer Bills in the post, though there was a powerful dissent of Holt C._]'. Set Winﬁeld, Selected Legal Essa:-*a,'(:9s2), past 36.

3 See paragraphs 24-30: mimi-

_1. Section I48, Indian Connect Aer, I372.

5. Section 151, Indian Ctlntract Act, 1872.

=6. Sea _the I-F'iJ1!ui'eJa'.(J9::-2.}P:;'bate 411 (1900-1903), All Eng. Report:

Repnn: 3.45, 3.19 (C.A.].

*7. Sixcct, Tons £1959»), page 35.

8. Se: Halsbury, 3-rd Edn., Vol. 30, page :76, footnote {m}, and Vol. 2, page 144.

-3. Also see Winﬁeld, Tort,_(I963), page 52.

mo. Wiziﬁeld, Tort (1963), pages 515-546.

he {the bailee] wouid have a. good answer to the hnilor if he were sued for the loss of the chattel. Thus. in the Winkﬁeld', mails were lost in a colli- sion between ships one of which was carrying the mails. N ow, the Postmaster General was not liable to the -senders of the letters and parcels for their loss. Yet he was held entitled to recover their value -from the owners of the ship responsible for the accident. But he was also bound to pay to the bailors any excess above his own interest and this "serves to soothe a mind' disconcerted by the notion that a person who is not himself the complete owner should be entitled to receive back the full value of the chattel converted or destroyed.''",

(iii) The Post Oﬁiee is not an "involuntary bailee". It gets possession by choice? '

(iv) Since, however, the Post Oﬁice professes to accept goods of a certain description for conveyance to the addressee, it must be regarded as standing in some position akin to a bailee'. As a matter of fact. there is -on-e view, that a baihnent can exist independently of contract? But, apart from that, a person who receives goods knowingly, and for certain service to be per- formed thereon, cannot remain absolutely without legal obligation. -On this reasoning, the duty to take reasonable care may arise, and an action may lie in tort irrespective of contract. The relationship existing be- tween the sender and the Post Oﬂ-ice, and the nature of the -service performed by the Post Office (apart from statute), might impose on the Post Cliﬂce the obligation to take r-easonablecare of the goo-:15'-. This is nearest to the position of a private carrier, i.e. a carrier who is not a common carrier.

(V) The discussion may appear to be academic in view of the express provisions of section 1'5. But it is useful to bearthese points in mind, in order to appre- ciate hovv section-6 has changed the rules that could otherwise have prevailed.

I The' Winﬁeld (1992), Probate 42, overruling Clo:-idea v. Sn-ugh Sings Tramw:I_:9 CE; (1393) I5 Q-B. 432. See :_FI'3lI2I3lJi'|3'E".'!'L, ]-ILs:or3-' of English Law, on, pages .148 as see, for the roster? of the matter.

2 Collins M.R. in The Wimkﬁeld, (1902), Probate 42,6n_ 3, As to involuntary bail-ees, see Winﬁeld on Ton: (I963), page 532: by Ha1sI:n.Iry,_ 3rd Edit, Vol. 2, page 98, paragraph [971 Bu;-neu;

" Conversion by an Involuntary Eailee ", [1960 76 L.Q.R_ 354.

4 Compare the discussion by Lin} Dennirig in the one cited in paragraph 29, supra.

5 Winﬁeld on Tort (1963), page 7, citing his "Province of the Law of Tort " (1931:), pages 93-399.

-5 As to the tlieorgnhal there is a general oanmpniuon of the relations giving rise to a d.'I1t}' of care', see Lorri At.kin's judgment in Donogfnre _ V. _ Sfepemovi, (1932), A.C. 562, and the discussion in (1953), Curran; I.egaIP:oblems, 236, 238.

Sections 6, and liahilitlf or rcgia-' zered sni-

clcs-.

35. It has been suggested', that the Department should be empowered to make rules to impose time-limits for com-

pensation for loss or damage in respect oi postal articles.

The s'|1B'E*!€-tion states, that sections 33. .34 and 48 "give power to t.he_Centr-al to irame rules about the liability of:the.Cen»tre1 Government". It 9-353.. that the De' partment has prescribed certain time liJnit_s within which it will accept complaints and claims in-respect oi payment of com {nation with regard to loss or-_¢a_tn_age in respect of post articles, but it has been found that the courts. have rejected .--the cases on the ground that the time limits fixed by the -Department had no la a1 force as these sec--- tions do not empower the Central verznment to ﬁx time limits. The suggestion, therefore, is, that section 6 may be amended to empower the Central Government to ﬁx time- limits for the receipt of complaints or claims of compensa- tion in such cases.

36. On a: study of the rules, we ﬁnd that there are certain rules? prescribing time limits. Thus, rule 31(d) provides- that no compensation should be payable to the sender of the insured articles, where the sender has not given inti-- mation of the loss within three months from the date of"

posting. Rule 102 provides, that the Central Government shall not incur any liability in respect of the sum speciﬁed for remittance to the sender in respect of a value-payable postal article, unless and until that sum has been received from the addressee and unless a claim for that sum has been preferred within one car from the date of posting:

of the article. Rules regarding various postal articles can be made under sections 33. 35. 36, 43 read with sections 48(a}, and 74(1). Section 48(d) is also relevant as to wrong:

payment of a money order. ' It is not necessary for us to express any opinion as to- the validity of some of these rules, or to discuss the eﬁect of the provision in section 74(3) under which rules made under the Act "shall have effect as if enacted by this Act." We are conﬁning ourselves to the question whether the suggestionjo amend section 6 on this point should be accepted. We are not inclined to accept the suggestion. A rule of limitation annexes a condition to the exercise of a right?-4. Ordinarily, a power to impose a period of limita- tion should not be made exercisable by subordinate legislation.

I. S. No. 95 (Suggestion of the Department).

2. Rules Sr (:1), ro:-*'& r3oD Indian Post Qﬂioc Rules 1:933.

3. Cf. E.S.I. Carpn. v. Government of Madbya Prad'erf:, A.I.R.. 1964 M.E' 75, 77:. see also Solar Works v. E.S.I-, A.l.R. 1964. Med. 375.

4. See also"M:'sr Maria V. B.R. Ba1'1'gr1, A.I.R. 1967 Born. 472, 17_ 3'1'. It has been suggested' that the liability of the Gov» ernment shouid be extended to registered, articles. It would not, however, he practicable to accept this suggestion in toto. Certain facilities are given in respect -of registered artictlesf To make the Post Uﬂice liable for the loss of registered ai"tic_les would practically amount to placing re-

gistered articles on the same foozing as insured articles. We are, however, recommending a limited provision3 in this respect.

38. A State Government'* has suggested that a liability for liquidated damages be imposed for negligence in the delivery of lettezra We think, that it would be impracti- cable to impose such a liability. We are not, therefore, in favour of the proposed change.

39. With reference to section 6, a High Court has ex- pressed this vie-W5. "The existing section 6 of the Indian Post Office Act, I398 gives complete immunity to the Gov- ernment. In the opinion of the Court the principles laid down by the Single Bench of the Allahabad High Court in A.I.B.. 19% A11. 6'12, should be given statutory recognition"

by amending section 6 of the Act so as to make the Post Office liable where misdelivery, delay or damage to any postal article is due either to negligence or dishonesty on the part of the postal employees. The necessity of givine the principles laid down by the Allahabad High Court a statutory basis arises because it is a judgment of a single Judge and may not necessarily be followed by the other High Courts".

This suggestion may be examined with reference to the various categories of postal articles, nan1ely'.-- {i} ordinary;

(ii) registered;

{iii} V.P.P.; and

(iv) insured.

For ordinary (unregistered articles). no change is desir-- able. The Government cannot be made liable. having re- gard to the voluminous business that is transacted by the Post Office. For insured articles, no change is needed, as there are speciﬁc provision.' As to regist-'cred articles, we are necornmending certain Changes? As to V_'P.P_ articles, the changes which we are recom- mending will sufﬁce."

. SJ-l'o. 1:02 (Suggestion of a High court). . Indian Post Oﬁioe Rules, 1933, rules 58 to 65.

. See section 28 (as pi-oposrd).

S.N'o. 97 (State Government).

. S.No. 167 (Suggestion of a High Court).

. As E0 the Allahabad case, see paragraph 2.0, supra. . See section 33.

. See section 28 as proposed.

. Sea sectiﬂn 34 as proposed.

Hana--.'l O\m._n.L.u uu 8--61 Law.

Sligﬂtation rt: ing lial:-ilit.:'.'.

Section 6 and sugg es-

tion to make Po stoffice liable for misdelivery, etc., due to 'dishonesty, BIS.

Section 7 and peti-

tions t0 President, Parliament, etc. Section 9- Renewal of registration.

Section 9 foreign newspapers.

40. Under the English Act} there is an exemption from postage in respect of petitions to the Queen, Par- liament, etc. (provided the conditions mentioned in the section are fulﬁlled). We considered the question whether the adoption of such a provision would be desirable. We decided not to recommend any such change, as the exemp- tion might be found to be unworkable, in practice.

41. Section 9, dealing with rules for the registration of newspapers for transmission by inland post, has ﬁgured in certain decisions. In one case? the main point related to the power of a Postmaster General to cancel registration under the Rules. It was held, that if the Postmaster Gene- ral once holds that a magazine comes within the purview of section 9, then it is not open to him, on the some set of facts, to come to a different conclusion afterwards, during the ieriod when the registration is in force, and to Cancel re- gistration on that ground. Every successive Postmaster General cannot, while the registration is in force, cancel it on the ground that the newspaper does not satisfy the pres- cribed conditions. There is also a discussion in this case about the meaning of the expression "current topics", used in section 9(2), openin paragraph. No amendment of the section is, however, ca led for.

In a Bombay case} it has been held, that the right to concessional rates under the Act and rules thereunder is not a fundamental right under article 19 of the Constitu- tion, where registration as a "newspaper" is denied to a short-story magazine.

42. A reference has been made in a previous report of the Commission' to the Post Office Act, 1913, which enables newspapers published in the British Dominions to be regis- tered in England as registered newspapers under the Post Oﬁice Act", 1908. The Act merely confers a privilege upon newspapers published in India and circulating in England. A suggestion, however, has been made in the Report that the Ministry concerned may consider this statute along with other postal arrangements between India and the U.K. Attention may, in this connection. be invited to the power of the Central Government to make rules under sec- tion 9 (providing for registration of newspapers for trans- mission by inland post as registered newspapers). The signiﬁcance of registration is mainly for the purpose of postal rates, because, as would appear from section 7(1) and

1. Section 5(1), proviso, English Act.

2.Ka1.E Chm-are v. Postmaster General, A.I.R. I956 All. 87, 39.

3. Sevantila! v. I»'. 1). Delta', -A.I.R. 1961 Born. :05, 110, paragraph

23.

4. Fifth Report of the Law Commission (British Statutes applicaI:i'e to India'), page 65, bottom, and page 66, top, entry No, 220.

time lﬁrst Schedule to the Act. the Central Government, in ﬁxing the rates of postage, ﬁxes different rates for register- ed newspapers as a class of postal articles_ as contrasted with other postal articles. Now, the conditions for regis- tration in section 9(2) do nu; require that the newspaper must be published in India. Accordingly, there is nothing in the Act itself to bar registration of foreign newspapers if otherwise permissible under the Act and the rules made thereunder. Reference may also be made to section 10 of the Act, under which, when arrangements are in force with the U.K_, or with any British Possession or foreign country' for the 'n:an§.rr_issi:-n by post of costs] articles between India and that counirfa the Central Governnieiit may, in conjur- mity with such arrangements declare the postal rates and other sums chargeable in respect of such postal articles.

43. The matter would not, therefore, require an amend- ment of the Post Oﬁice Act. The relevant provision in the latest Act on the subject in the U,I{.--the Post Office Act, 19:33~i5 section 13(1)[b), under which a publication is re- gistrable under section I2 as a newspaper if it is printed and published in "the British postal area or some other part of Her Majesty's Dominions or. . . .India (provided 1":

satisﬁes the other general conditions of registration). Under section 15 of that Act, where arrangements have been made with the Government of any other country or postal admin- istration for the conveyance of postal packets between the British postal area and places outside the area, regulations :-nay be made in:-r carrying the arrangements into effect and other matters.

44. The constitutional aspects of section 9 have been dealt with separately}

45. With reference to section 9(2){a), the following suggestion was made? in the Department's commence on our clraft Report I ---

"Une of the conditions provided in section 9(2) of the Act is that the publication applying for registration for concessional rates of postage, should come out at intervals or not more than 31 days. There may he need for reducing the is-equenc§'. I: is felt that A r:-:-

periodicity tegarding the intervals withinsvhich a 'pub- lication should come out, need be stipulated in the Act. This may be left to the Central Government to pres- cribe by framing necessary rules under this section. It is suggested that this section may be SllllalJ!.__'§J' amended".

1:. See Appendix 4.

2. No. :69 (Suggestion of the Department} S'E'Ct in [1 9---

Coast Etu-

tional aspects, Section {9} _'2)raj---I rite r-

ralcf 3: days, 20 In_ our view, this is a matter of policy, and we would'. express no opinion thereon.

S°°'i°" "" 46. With reference to section 11, the following sugges-

S ' . .

3::-.];§, tton has been made relevant to service stampsl:---

"Under section 11 of the Act, addressees of the articles sent under deﬁcit service postage are liable to- pay the deﬁcit postage with such extra postage as is.

charged by the postal Department before the postal article is accepted, or to refuse payment of the postage and return it to the sender. In View of these provi-~ sions, even important and urgent articles may some--

times go undelivered for fault of the sender if sufiicieut postage is not afﬁxed. It is, therefore, suggested, that in regard to postal articles sent under service postage. postage should not be collected from the addressee, but it may be delivered and the postage so collectable from the addressee may be collected from the sender only, following the same procedure as provided under section 27(2) of the Act.".

The position, as stated in the suggestion, is true3. It would not, however, be practicable to collect the deficiency, once the postal article is delivered.

(The suggestion states, that the procedure in section 27(2) be followed, but that would be cumbersome). The suggest- ed change cannot, therefore, be adopted.

47- A State Government had, in its Comment on the draft report, stated as fo1lows3:--

"It appears to this Government, that great incon-- venience and at times great prejudice, may be caused, if the provisions of section 11 are followed even in the Case of postal articles sent under service postage, but insufficiently stamped. The postal articles concerned may be a letter summoning a candidate for a post for an interview or a letter addressed to the Public Works Department Of a State for arranging the accommoda--~ tion of some Minister or superior officer of the Central Government in the State Guest House or a dak bun» galow. It appears to this Government that in the case of insufficiently stamped postal articles sent under Ser- vice Postage. it will be quite easy to make a note of the particulars of the sender by the Post Oﬁice at the delivery and then to recover the deﬁcit postage-

from the office which had sent it. The collection win he by Way of _mere book transfer_''.

1. S.No. 1'14 (A State Government). . 3- RU!" I31-'(I}(3) and 132; Indian Post Oﬁice Rules, 1933.

3. S.No. 170 (Comment of a State Government).

We considered these points, but we came to the conclu- ;-sion that no change is possible. It would not be practicable to recover the deﬁciency, as elaborate records will have to be kept before delivery.

48. It has been suggested1 that v.fe_ should insert, in the Post Office Act, a provision authorising postal oﬁicials 'Lu detain articles Liable to customs duty for examination and assessment. Existing provisions of the law" are, in our opinion, adequate, and no change appears to be necessary3.

49. We have considered a suggestion' to add a provision as to forged money orders and ﬁctitious stamps. The exist» ing provisions of the law appear to be adequate? and no change is necessary.

50. Section 18 deals with the re-delivery to the sender of postal articles, and with the "recalling of postal articles. As has been held by the S-uprenfe Court," the right of the sender to reclaim a letter is not an absolute right, as it is left entirely to the postal authorities to decide whether a "letter once posted should be returned to the sender. The "negative proposition given in section 18(2) sufficiently brings out this aspect emphasised by the Supreme Court. 'This section need not be disturbed. 1

51. With reference to section 13, We have received a suggestion7 to empower the Government to make rules for changing the name and' address of the addressee. We feel, that a wide power to change the name and address may be abused. The suggestion has not, therefore, been accepted.

52. The constitutional aspects of section 19 have been dealt with separately?'

53. It has been stated," that there is some repetition be- tween sections 19(1) and 19(2), and that the section should be recast. It may be that there is some overlapping. But. in thedabsence of any practical dilﬁculty, no change need e Ina e.

54. The constitutional aspects of section 19A have been

-dealt with separately."

55. The constitutional aspects of section 20 have been 'separately dealt With." 1 I. 5.510. 96, last paragraph (Suggestion of the Deparn-nentj.

2- Sections 13,24. 24A. 25, Post Oﬂice Act, and sections 32 to 34, Cus- toms Act, 1962 (52 of 1962) may be seen, . See also paragraph Eo, infra.

. S.No. 88. .

. Section" 46' 7: 26 Post Office J 3A' .Income-tax Commissioner V. -Ogala Glass ll'/or.-in Ltd., (1 955) 1 185; A.I.R. I954 s.C. 429.

7. S.No. 96 (Suggestion of the Department).

8. See Appendix 4.

9- S-N0 - 9 ((31;lgg*:stion of the Department).

10. See Appendix 4.

Indian Penal Code, read with section 17(1), <5'. U\.l*;.L..'\ s.c.R., Section I 3 -

Customs dunes.

Section 17 --

Forged money or-

ders and ﬁctitious stamps.

Section 18.

Section I 9.

Section 19.-'\..

Section 2o Recommen-

dation re-

garding destrucﬁon of obscene article 5.

56. We apprehend that, with reference to clause (a) of section 20 {obscene articles, etc), the power to ¢;1esti'(}5;' the obscene article under section 23 (3) (in) of the not read with the rules} as exercisable under the existing procedure, may perhaps be invalid, as such a restri.-zztion may not be consi- dered "reasonable" within article 19(2) of the Constitution. Reference has been separately made" to the caso--law relat- ing to analogous Acts and to comparable provisions in the Y-:.U:.g Persons, eI;c., Act, the IIliner:.a:ographe Act, et-c_, which provide for review or other suitable sategiiartl-s. Notice to the sender and to the addressee seems to the minimum safeguard which can be devised from the point oi View of procedural reasonableness. We, thereto:-e, -re- commend, that, before destruction of the obscene article under section .'2.3i3)[b) read with section 2D(a]. notice should be given to the sender} and to the addressee.

We think that the new proviso should be conﬁned to action under section 20(3).

5?. In its comment on our draft Report, a State Govern- rnent' izzad stated:---

"From the point of slew of an invasion of the sen-:1-er's freedom of speech and expression, the two clauses of the section {section 20} stand on the sonar:

footing', and action, which may amount to destruction, can be taken under section 23(3)[b} in respect of arti- cle sent in contravention of clause (a). . .. In the opi- nion of this Government, the proviso suggested to be inserted after section 23{3){h} should refer to clause Co} of section 20 as we11....The Postmaster General is the sole and ﬁnal judge whether an article comes '.oi:l:ain :he mJ"s:'::.e:' of section 115 or 195. 1".-its '3~:'.re1'::.-- merit, therefore, thinks that. the proviso suggested by the Central Commission should be rc--:c-ast so as to- rnalte it a proviso to the whole of section :?.3(3} and to include '11: it a reference to all the Sections concerned: namely, section 19, section 19A and both the clauses of section 20.".

A High Court? had also suggested", that clause Kb] of sec--- tion 20, should be mentioned in the proviso to section 23(3)(b'_1 as proposed to be added by us.

59-. In our view, however, no such change is required.

Cases 'under section 19 and 193 would hardly raise ques- tions of freedom of speech. As regards section 2!} (b), it is

1. Rule zrgr, Indian Post Difloe Rules, 1933.

2. See Appendix 4 (Constitutional aspects of certain seciicr

3. Cf'. section 24, Post Oﬁice Act.

.4. 5; No. no (Comment or a State Government}.

5. S, No. 167 :_Don-mient of a High Coon',-.

5}.

not necessary to provide for notice, etc., because section 20(b) relates to postal articles containing on the cover, etc-., obscene, etc., writing, and the present procedure is not likely to be regarded as unreasonable.

59. The following suggestionl relevant to proposed sec- tion 23(3) (b), was made in a comment on our draft Re- poi-t:--

"As regards sections 24, 27 and 27B, in each case, it is a provision for a notice on the addressee and not on the sender. Of the three sections mentioned above, section 27B also provides for an opportunity for test- ing the validity of the action of the Postal authorities, for it gives a right to "any person interested in the article" to apply to the State Government for relief and if that application fails, to apply to the High Court. Further, it is to be considered whether express provi- sion should not be made for a right of the person notiﬁed to seek relief from other authorities. To this Government it seems that it will be better and more in conformity with the recognised method of amending statutes, to adhere to the scheme of the Act and frame this proposed proviso on the lines of section 27B(2) and 3 .".

We have carefully considered the comment.

In our view, section 27B is too cumbersome, and need not be followed. Moreover, section 27B is mjeant for sedi-- tious articles, While section 23(3) (10), provise (proposed) is intended for obscene articles.

60. With reference to proposed proviso to sectior. 23 (3) (lo), the following comment has been made? by the Department:

"The proviso to section 23 may be amended to prescribe a period of less than one month in respect of explosive or obnoxious or deleterious substances, as, for obvious reasons, i 1; would not be possible or desir- able to léeep such sltlibstances in the post oﬁice up to a period 0 one mont . .

It may, however, be pointed out, that the proposed pro- viso3 is not relevant for explosives, etc. No change is, therefore, needed in the proposed proviso.

61. We have received a suggestion' to add a new clause 3"8B=5_U""'5 in section 20, to the effect, that no person shall send by post '°g"rd""=' section :40, "*-

. S. No. 170 (Comment of a State Government). . S. N0. 169 (Comment of the Department).

. Section 23(3)(b), proviso (As proposed).

.S. No. 81 (A State Government).

-huJk~JH Section 20 and com-

cmnications with the enemy and oiﬁcial secrets.

Section 2:0 (11) and 1:-biectioni_ able matters.

Section 21.

any article which is prejudicial to the security of India, or which is likely to bring India into d?'.S?'eput|!' with other countries or which questions the territorial integrity of India. We think, that the existing provisions of sections 2003) (read with section 61), 26 and 2-TB (i)(ii), Post Ofﬁce Act, and section 124A of the Indian Penal Code, and the genera] law of abetment and conspiracy under the Indian Penal Code and the Criminal Law Amendment Act,' deal- ing with writings questioning the territorial integrity of India, are enough. In the absence of any practical diffi- culty; it would not be advisable to insert a with; section in the Post OH-ice Act, particularly when there is no such gene- ral crime of "acts prejudicial to the security of the State"

(apart from the provisions in the Defence of India Rules and other similar special or temporary laws).

62. We have received a suggestion" to add, in section 20, the following, namely :--

(i) communication with the enemy, etc., and

(ii) communication in the nature of disclosure of_ ofﬁcial secrets.

As regards communications of the first type, section 26, Post Dﬁce Act_ is the appropriate section, and section 20 need not be amended for the purpose.

As regards communications of the second type, penal provisions of the Official Secrets Act," appear to be sulﬁ- cient. That Act. it is true, does not empower the intercep- tion of communications.' If the sugges'l:ed'adclition (in section 20) is intended to attract the provisions of section 23 (under which the articles can be destroyed), then the power is likely to be abused. The suggestion has not, therefore, been accepted".

63. It has been suggested? that in section 21) (lo), the Words "objectionable or any matter which is an offence under lndian Penal Code or any other law" should be add- ed. The expression "objectionable matter", however, would he very vague, and the wording "any matter which is an offence under the Indian Penal Code, etc." would he very wide' We have not, therefore, accepted the sugges- tion.

64. The constitutional aspects of section 21 have been %parately dealt with?

1. The Criminal Law Amendment Act, :96: (23 of I961).

2. S. No. '[08 (Suggestion of a Deputy Inspector General oi'Po1ice)

3. The Oiﬁcial Secrets Act, 1923 (19 of 1923}. sections 3(1)(c3,5(rjn(a), SCI}, 6'13), etc.

4. The power under section II, Oﬂicial Secrets Act, 1923, is ofa Iimil-ed niltl-IIE.

5. As to general power of interception, see section 26, Post Ofﬁce Act.

6. 5. N0. 108 (A.D.'i'.G. Hf Police].

7. See Appendix 4.

55. We have received a suggestionl to insert a provision regarding the maintenance of a register in the Post Office for articles sent under a certiﬁcate of posting. This would unnecessarily increase work, for which the fee charged would not be commensurate. A change in the law is not needed. If unscrupulous persons succeed in getting a cer- tiﬁcate without actually posting a letter (as stated in the suggestion), the proper remedy would be to see that the letter is posted before the certiﬁcate is issued. In fact, the rules" do provide that the certiﬁcate shall be presented to the officer on duty at the post office atongwith the article to be posted.

66. With reference to articles sent under certiﬁcate of posting, a State Government has, in its comment on the draft Report, stated":-

"In the opinion of this Government, the Rule re- ferred to (Rule 195) constitutes no safeguard at all, because the guarantee of a certificate of posting where it is abused, abused in collusion with the oﬂicer who stamps the postal seal on the certiﬁcate. If he is a colluding party, he cannot be depended on the insist on strict compliance with the Rule. A register in which all articles sent under a certiﬁcate of posting would be entered serially and in a chronological order would, on the other hand, make such abuse almost impossible, because tampering with such a register or making ﬁc- titious entries in it, would not be easy. Nor can it be said that the work of maintaining such a register will be unduly heavy." ' ' We have carefully considered the point raised in the comment. But we think that no such change is needed.

Even if it were practicable to provide for a register of articles posted under certiﬁcate, that cannot constitute a

-safeguard against collusion. An entry can be made ﬁcti- tiously even in the register which is suggested in the com- ment under consideration.

67. It has been suggested,' that section 22 (2) be deleted,

-as there are no separate parcel posts. We have not accept-

-ed the suggestion, as the existing provision is harmless.

68. The constitutional aspects of section 23 have been

-separately dealt With.5 . S. No. 108 (A D.I.G. Police).

. Rule '[95 (1), Indian Post Office Rules, 1933.

. S. No. I70 (Suggestion of a State Government). . S. No. 96 (Suggestion of the Departmcr.t)_ . See Appendix 4.

U":-AV-'N|-I Section 21 (I}(b_J-

Certiﬁcate of posting.

is, -

Section 22.

Section :3.

Stction 23 {Elia}-

SE_CTi0I1 23 em.

39. We has r ' cl _' i. _ merit to add "§u1::(;':'1:1¥t':-ndaeifiligeslgrgg $"mfl1 n 33L3"J(a1I« H-swing regard to the fact that under section 23 (3) [E3 any postal article sent by post in contravention of the provisions of sections 19 and 191%. can (under the authority of the Postrnaster General] be opened and ilestfoytfd', :_it is not desirable to extend the scope of the section in this manner. We have not, therefore, accepted the suggestion.

_'iEI. In its comment on the draft Report, the Department iﬁitefafed its suggestion, stating that "leaky articles are received in a large number in post offices and every case of destruction of such articles has to he referred to the Post- itnasteg General and this unnecessarily takes considerable line".

We do not, however, think that it is wise, to give the _ power of destruction to lower oiﬁcers. Delay should not be caused even by the existing provision, because in cases of urgency, instructions can be obtained by phone.

71. In its comment on our draft Report, a State Govern- ment' had stated that section 19 prohibits the transmis- sion by post of, inter alto, explosive, dangerous or deleteri- ous substance and also of living creatures and things. like- ly to injure postal articles or oiﬁcers of the Post Oilice. If a postal packet was found to contain such substances or creatures or things, it would [it was stated) be dsn,-gercus io wait for the direcljon of the Postrnasier General before the articles were destroyed. 'in the opinion ol the State Government, thjerefore, the suggested ad-:1ition5 oi the Superintendent of Post Offices should he made to section

-'33 (3) (al -

The Comment was discussed before us at Ietigth-. In our view, no such change is needed. It may he noted, tnat even under the suggested change, the directions of the Superintendent would have to be awaited. so that the pos- tion may not he better.

'F2. We have already recommended" a suitable amend- ment in section 23 (3) {lo}, with reference to the power to destroy obscene articles.

1. S. No. 95 (Suggestion _ot the Deoqmnentl. , _ 3_ Secﬁgn 1.; deals With 1r1;Lis:LO|'.Is articles, and_ EECUOD 1 A_deala with tickets, advertisements; =to.r=lat1nst°1°ttm=5 mi "1 me" 733' 'hi' 2mm :1.

3. 1:59 (sugesliezi of the lJc13'llfﬂ"-€"f.?- 4_ s. No. no [Gmrirncnts of 'a State Government).

5. Paragraph 71>, mom.

6. See paragraph 56; at ml-~ WT"

Such a provision appears to be necessary, having re- gard to the consideration that a determination as to whe- ther an article is or is not obsclene should not be left to the Postmaster General without some such safeguard.

73. We have considered a suggestion1 to add "police officers" in sections 23 and 27. It is not in our view desir- able to confer the powers under these sections on police oﬂicers. We do not, therefore, accept this suggestion.

74. The constitutional aspects of section 24 have been separately dealt with."

75. Sec_tion 24 does not, in our view, apply to action under other sections. of the Post Office Act r£tsel§j'.3 In its comment on our draft Report, a State Govern- ment' had stated as follows:--

"This Government cannot agree that the opening words of section 24 exclude its application to cases under the different clauses of section 23, though it may be otherwise 'excluded. So far as opening words of sec- tion 24 are concerned, they constitute an all-embracing provision for a notice in all cases of receipt by Post Office for delivery of articles sent in contravention of the Post Office Act as well as other Acts. The notice, however, will have to be a notice to the addressee... .."

The State Government, further, observed that the real difficulty is that the opening Words of section 24 cannot, at least in tl'1-3:9 case of some of the postal articles, be reconcil- ed with the second proviso, and therefore how those general words are to be construed in their bearing' on the duty of giving notice, is a question.

76. The matter was discussed at length before us. The history of the opening Words of section 24 (substituted by the Amendment Act of 19-12) was looked into. In our view, section 24 does not apply to the mattjers provided for in sections 19 to 23, having regard to its history, and also having regard to the consideration that the words "Except as otherwise provided in this Act" are adequate to ex- clude the operation of the section in relation to cases speciﬁcally provided for.

. S. No. :08 (A D.I.G. Police).

. See Appendix 4.

. See also Appendix 4, under section 19A.

. S. N0. 170 (C ommcnt of a State Government}.

.pI_gj|\ID-O Sections 23 and 27, and Police Oﬁioers.

Section 24..

Section 24 and action under other sections.

:Section 24- Power uncle r lﬁrst proviso.

;Section 24A.

Section 24A and Gus-

.toms Act.

We may, in this connection, refer to the relevant part of the statement of Objects and Reasons to this Amend- ment. Act of 19l2'--

"Clause 5----The absence of any deﬁnition of "con- traband goods" in the existing Act has been repeated- ly felt, and it is proposed to substitute adeﬁning phrase making it clear that the provisions of section 24 are applicable to goods of which the import or transmis. sion by post has been prohibited under the Excise, Opium or othler laws."

77. It has been Suggested", that the power under section 24 be delegated to the Postmaster General, instead of the Director General. This seems to refer to section 24, First Proviso. This is an important power, and no change is de-sirable.

78. In its comment on our draft Report, a State Gov- ernment had stated"':----

"This Government thinks that the first proviso to section 24 should' be so amended as to make the calling in of two respectable witnesses, whenever a postal article is. opened in the absen-ce of the addressee or his agent, a universal rule, compulsorily to be followed in all cases without any direction of any higher author- ital')! In our view, no such change is needed. In a small vil- lage, it may not be practicable to call witnesses.

'79, The constitutional aspects of section 24A have been separately dealt with'.

80. With reference to section 24A and the Customs Act, the following suggestion5 was made:------

"Section 24A of the Act empowers the Department to hand over postal articles for customs examination to customs authorities. In actual practice the articles are being detained for customs examination in foreign post offices, but there is no provision for this in the Act. The Sea Customs Act, 1878, does not provide for the delivery of articles to the customs authorities, but provides that articles may be kept in the custody of the post oﬂice. The provisions in the two Acts are not consistent. It is felt that the law must be consistent, 1'. Extract from the Statement of Obiects and Reasons to ihc Bill wl1i;:h led to Act 3 of I912.

. S. No. 96 (Suggestion of the Department).

. S. No. 170 (Suggestion of a State Government). . See Appendix 4. _ .5. S. No. 169 (Suggestion of the Department).

-DI-UON 29 and there should be no conﬂict between the two- eﬂactmellts and, therefore, this discrepancy is pointed out to the Law Commission for such action as may be deemed proper.'-' T The statutory provisions on the subject were examined 13:: us. It appears to us, that there is no discrepancy. The subject is mainly governed by section B4 of the Customs Act. 1962, which leaves the matter elastic".

81. The constitutional aspects of section 2521 have been separately dealt with'.

32. Section 26 of the Act provides, that on the occur- rence of any public emergency or in the interests of the public safety or tranquillity, the Central Government or at State Government or any authorised oﬂicer may, by order in writing, direct that any postal article or class of dc-scrip- iion of postal articles in course of transmission by post shall be intercepted or detained or disposed of in such. manner as the authority issuing the order may direct.

83. Section 26, thus, imposes a restriction on the right of freedom of speech and expression, guaranteed by article- l9(1) (a) of the Constitution, and the question has to be considered whether the restriction would be valizl. The permissible heads oi restriction under article 19(2) of the- Constitution (so far as is relevant] are----"securit'y of the State". "public order", incitement to the commission of an oiience, and friendly relations with foreign States. It would be desirable to bring the language of the section in line 1::-ith the permissible heads of restriction. The expres-r sion "public emergency" in section 26 appears to be very' wide, because, if the "e1'ne-rgency" is not of such a nature as to affect the security of the State or public order, the provision would travel beyond the permissible heads of restriction.

84. It may be of interest to know the history of section

26. In the Bill which led to the Act; in the notes on clausesi, it was merely state, that the clause was based on the analogy of the Indian Telegraph Act, 1835 (ohvi:-Lis- ly, the reference was to section 5 of that Act). When, how- ever, leave to introduce the Bill was sought for, Sir James Westland explained, that "in this respect we copy the English law". Referring to a Bill which had been intro- duced in Parliament two years earlier, he said, that the English Bill did not directly make any special provision of t. See section 84(b)_. Customs Act, 3962 {52 of 1952}.

2. Sets also paragraph 4.3, supra.

3. See Appendix A. .4. Gazcttﬁ of India. November 6, I967, page 385.

Section 253..

Section 26..

_Reqon:m:|en-

.dano_n re-

icion 26.

'-this kind but it implied it in imposino'

- * ' a penalty upon a Post Oﬂice °fﬁ°e1"> Whcl delayed or mtertcepted any article mherwjse than by direction of the State. In the Report of the Select Committeel ' . - -

of dissent, said, that aitgﬁuicﬁéﬂaifﬁeﬂﬁfigi lrisiigfee the grounds for it should be published; to hush up an attain W35: hf' 331d: bafi POIJCY, Ifrlule to give publicity would be a tangible warning to similar offenders. He stated, that the balance of advantage to this public, for whose protec- tion the power was being taken, was to place even the Government under the reign of law.

85. When the Report of the Select Committee was dis-

-cussed in the Council', Shri P. Ananda Charlu repeated his objection to the clause. He said, "a strong and just Gov- ernment, above all _others, must not shrink from daylight. The power in question is one which, it seems to one, must be as abhorrent to good Governments as to the public, and good Governments should themselves provide effectual checks and safeguards to render it impossible for bad Gov- ernment . . . . ..readily to resort to arbitrary or high-handed proceedings." Shri Bisharnbar Nath also pointed out, that without due publicity about the occurrence of any "public iemergency"; the power may be regarded as arbitrary. The clause was, however, passed without amendment.

B6. A detailed note examining section 26 in the light of article 19 ('1i):'(a} of the Constitution, and discussing other relevant aspects, is attached to this Reporta.

The important points indicating our -conclusion on the subject are;--- -

Point No. (1].---The expression "public emer- gency" in section 26(1), Post Office Act, may not be enough to make the power of interception of postal articles valid with reference to the freedom of expres- sion, as it may embrace situations not falling under article 19(2) of the -Constitution'.

Point N o. (2) .--In order to bring section 26 into conformity with article 19(2) of thie Constitution, it is necessary to conﬁne the section to the various heads given in article 19 (Z) of the Constitution, so far as its

-operation in respect of letters, books, postcards and newspapers is concerned.

[Other postal articles would not ordinarily raise questions of freedom of expression, (when the articles I. Gazette of India, March 12, I898, part V, page H2.

2. Gazette of India, March 25, 1898, part VI, pages' 235 to 287.

3. See Appendix 5.

.4. 899 paragraph E3, also.

are intercepted in post). Hence, it is not necessary to disturb the operation of the section in relation to them.] Point No. (3).--Section 26(2), Post Office Act, may be omitted, as the legislature cannot bar judicial review of unconstitutional action taken under a sec- tion. The wires of an interference with the freedom of expression, when chailenged, have to be examined on a consideration of the question whether, in point of foot the interference is attributable to a permissible source under article 19(2) of the Constitution.

Point No. (4).--Section 26, sub-section (1) need not be disturbed. Our recommendation to bring it into conformity with article 19 (2) of the Constitution, recorded above', should be implemented by adding a new sub--section in section 26, to the eﬁect that the power of interception, etc., shall, in respect of letters, books, postcards, and newspapers, be exercised only ;_n the interest of the security of the State, public order, frien:ll_'f relations with foreign States or preventing incitement to commission of an offence. (Other heads of article 19(2) will not, in practice, be important for the present purpose).

3?. With reference to section 26, it was noted? that the amendment is acceptable to one of the Ministries of the Government of India. '

88. With reference to section 26 (as proposed), the comment of a State Government3 on our draft Report raised certain points. The first Was-------

" (1') This Government doubts whether it is at all necessary or propjsr to attach to section 26 (1), in ex- press terms, the limitations imposed by the Constitu- tion."

In our view.

it is necessary to amend section 26, as proposed.

89. The comment of the State Government', further, saj,:s--

"In so far as the proposed sub-section ignores the other freedoms of which also section 26 (1) is restric- tive, it is defective."

The point had been considered by us before formulating our proposals. Ordinarily, it is letters or newspapers which would be intercepted, under section 26, and their intercep- tion would not affect the freedom to carry on business, the . See Point No. (2), above.

. S. No. 169, read with S.No. I74.

. S. No. :70 (Comment of' a State Government). . S. N0. 170 {Commert of a Sttcn Government] ..'a.L»JNr-I Section 26 and com-

ments re-

ceived on the draft Report.-_ 32 freedom to hold property, etc. Hence, the other fundamen- tal rights are not of practical rrnnorta-nce in relation to section 26. In any case, so far as the other fundamental rights are concerned, the permissible restrictions under article 19 are wider, than those under freedom or expres- sion.

30. The State Government', in its comment, has stated-

"One of the occasions on which the power under section 26(1) can be exercised, is occurrence of any "public emergency". But it seems to have been overlooked that the words "pulzli-2 emergency" used in section 5:6 (1) are perfectly general and must also include an emergency proclaimed under Article 352 of the Constitution-"

The comment is not acceptable to us. It is precisely be- cause the expression "public emergency" is very wide--- much wider than the language of article 19, and that is why a difﬁculty may arise".

91. The State Government'; comment', further, says»-

"(iv) Section 26 (1) authorises interception or de-

tention of a postal article in the c»:-arse of its transrr_;s-e sion by post. It is not clear to this Government why, it a notice to the sender was considered necessary in the case of action taken under Section 23(3) (b), no notice should he considered necessary in the ease of action taken under section 26 {1)."

Now, we should point out, that there is a distinction between the situation envisaged by section 26, (on the one hand) and the situation envisaged by section 23 (in rela-- tion to obscene articles) {on the other hand).

Aiction under section 36 is taken in urgency and, (usually) for reasons of security of State. Notice to the sender would not be practicable. In our view, in consider- ing the constitutionality of section 26-~if it s'|o1ou'Ld ever be contested on the ground of want of notice---- this distinction. could he very properly relied upon.

92. Another point made by the State Goveriimeiit' Wi:h reference to the recommendation for deletion cl? subsection {2} of section 26 is this----"This Government is unable to support the recommendation. Whether a public einergencgr existed at a certain point of time or did not, cannot be jus~ ti-ciable by "he Court nor can a Court decide whether a- particular set was done in the interest of puolic safety or .1-.._ _ . S. No. 170 (A State Government). . See paragraphs 33 to 86, score.

. -See also Appendix 5.

. S. No. 170.

. S. No. no (A State G-ovcrfnmcnt), Ult-Nu N H 33 tranquillity, except perhaps 'when malice is alleged. It may further be pointed out, that whatever an Act of a legislature may say, the jurisdiction conferred on the High Courts by Article 226 oi'. the Constitution and that con- ferred on the Supreme Court by Article 32, can never be

-taken away and, therefore, no uneasiness need be felt about

-Sub--section (2') of section 26."

We do not agree with the comment. The vires of an action (When challenged) have to be examined with re- ference to the question whether, in point of fact, the action is constitutional.

93. We have considered the provisions of section 5, Tele- graph Act, which are similar to section 26, _Post Office Act.

-Our recommenlatton as to section '5 of the Indian Tele- graph Act' is as follows:--

(a) Section 5 (1) (b) of the Telegraph Act may be similarly amended, i.e. on the lines on which section 26, Post Office Act is to be amended'-'.

(13) Section 5(2) c-£ the Telegraph Act may be omitted, for the same reason for which section 26 (2)-, Post Oﬂice Act is to be omitted.

(c) As a result, section 5, Indian Telegraph Act"

should be amended to run somewhat on these linesi.---

"5. On the occurrence of any public emergency, or in the interest of public safety, the Central Gov- ernment or a State Government or any ofﬁcer specially authorised in this behalf by the Central Govermnent or a State Government, may»-

(a) take temporary possession of any telegraph established, maintained or worked by any person licensed under this Act; or

(b) order that any message or class of messages to or from any person or class of per--

sons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be trans- mitted, or shall be intercepted or detained, or shall be disclosed to the Government making the! order or an officer thereof mentioned in the or er:

Provided that an order under clause (B)

-may be passed only when such order is re- quired in the interests of the seciwity of the

1. The Indian Tclegraph Act, 1835 (13 of 1885).

2. See paragraphs 33.36, supra, as t0 the section 26, Post Omce Act.

3. Indian Telegraph Act, 1885 [(13 of 1835).

4. This is a rough draft only.

5-43] Law.

Recommen-

dation re-

garding sec-

HOD. 5, Telegraph Act.

Power for Government to take pos-

session of licensed telegraphs and to or-

der inter-

ception of messages.

State, friendly relations with foreign States or public order or for preventing incitement . the commission of any offence."

-u 2-! Section 27. 94. As to section 2'1', the discussion regarding section 28 : be seenl.

Section 27B. 95. The constitutional aspects of section 2".'B have been separately dealt with?

Sections 28 96. The following suggestion-'*, relevant "to section 28, and 29- was considered by us-

Qourt No-

';}$°;,;,5:,I_1t . ' "Sometimes certain notices sent by the Courts or Government Offices are returned back on the plea of non-availability of the parties which indirectly helps the parties in delaying matters or escaping appearance. To avoid such recurrences, in every case of non- delivery or by non-availability of the addressee, it is suggested that a certiﬁcate may be obtained from the village M'u.nsi)° and Sapanch of that particular place to that effect, and the certificate so obtained may be pro- duced acliongwith the letter or notice which is to he returns ."

97. Our conclusion on the point raised in the suggestion' may be thus sum1narised--

(a) The necessity of ensuring proper delivery of court notices cannot be den.ied.- It may not, however, be practicable to require the postman to go to a village Munsif (or other corresponding authority), and it is also doubtful if the suggested provision will improve matters much. Hence, the suggestion 'could not be accepted in toto. .

(b) But, the question of requiring a le-gibly written endorsement by a higher postal official in the case of all registered articles which are unservecl or returned as "refused", was considered by us. We: think, that such an endorsement, specifying the name of the post- man who gave the report, would be useful, as a safe- guard . for ensuring that proper eﬂ:'orts were r_nade_ to eﬁect delivery. We recommend that the rules "under section 29 be amended for the purpose. We may note that this recommendation of ours has found the approval of one High Court? in its comment on the draft Report which we had circulated, and has no-t been objected to in the other comments.

I. See paragraph '73: supra.

2. See Appendix 4.

3. S. No. II4 (A State Government). ,1. Paragraph 96, supra.

5. S. No. I63 {A High Court).

There should be no special fees for such an endorse- merit. The intention is, that the fees for registration (which are charged at present) should suﬁce for this extra facilityl.

[With reference to rules under section 28, the fol- lowing suggestion has been made" :---

- s "As regards section 28, the suggestion of the Commission in case of non--delivery is acceptable with this proviso that the name of the witness before whom the article is tendered should be mentioned and his signature obtained, wherever possible."

In our view, this would not be practicable]

(c) Further, in the case of summonses, notices and other similar documents sent by courts or other autho- rities empowered to issue them, where they are sent by registered post, a special form should be obtainable by the sender on payment of an extra fee. This would be something like a "declaration" by the postman, analogous to the aﬁidavit of a process--server required under the Civil Procedure Code".

We recommend, that necessary amendment be made in the rules made under the Post Office Act.

98. The comment of a State' Government as regards our suggestion" in case of delivery for a declaration by the postal peon was----"the affidavit of the postal peon as in the case of process server under the Civil Procedure Code should he insisted upon so, that it may be evidence in Court till rebutted".

In our view. however, an afﬁdavit would not be practi- cable in the case of postal peons.

99. We have considered these points" in detail, in View of the fact service of summons, etc. by post is now in- creasingly employed".

1. As to the existing facilities for registered articles, see Rules 62, 63 64(1) and 65, Indian Post Office Rules, 1933.

2. S. No. 170 (Comment of a State Government}.

3. See Code of Civil Procedure, rgoﬁ, Appendix B, Form No. 11, pre-

scribed with reference to Order 5, rule 18 {Aﬂidavit of process-server].

4. S. No. :70 (Comment of a State Government).

5. Paragraph 9-}, supra.

6. Paragraphs 96 to 98, supra.

7. Cf. Code of Civil Procedure, 1908, Order 5. Rules 9-10 (as amended locally), Order 5, Rule 20.-"L (as added by local amendments) and existing Order 5, rule 2QA(2).

3. See also 'I'v.renl:y-seventil Report of the Law -Cnmtnission .(Oodc of Civil Procedure 1908), page 46, Order 5, Rule 19A, (Proposed and Notes at page 136.

Section 28 and liability of the State for regis-

tered arti-

cles.

Occasions for setting aside an ear: parte decree on the ground that the defendant did not actually "refuse" the summons served by registered post, often arise'--2, and in the absence of some reliable evidence it is difﬁcrult later to prove the_ refusal. The proposed changes may be of help in bringing some proof into existence.

100. Reference may also be made to the vario-us statutory provisions as to letters sent by post"-4-5.

101. As to service by registered post, the under-mention- ed cases may be seen "-7-3-"-10-".

102. In the comment of a State Government" on our draft Report, the following suggestion was made (The sug- gestion was made under section 6) :------

"It appears to this Government that some relax- ation of the absolute terms of section 6 is called for. It will not make any extreme suggestion, but thinks that the law in this country should at least be brought into conformity with the present law in England in this re- gard. In the opinion of this Government, section 6 of the Indian Act should be amended so as to provide for an exception in the case of registered articles on the lines of the British Statute."

A High Court'? has also made a similar suggestion (on the assumption, that in England the Post Ofﬁce 1s liable to pay compensation in respect of registered inland packets where loss or damage is caused by any wrongful act done or any default committed by a person employed as a ser- vant or agent of the Crown).

1. As to such instances, see (a) Sunder Spinner v. Maker: Blmla, I.L.R 46 Bom. I30; A.I.R. 1922 Bom. 377, and i

(b) Appibai v. Lakshmi Chand, I.L.R. 1954 Born. 243$ A.I.R. Born. I57.

2. Also see Burro Krista v. Gamindaram A.I.R. r939 Pat. 540, 547 (Harries CJ. and Chatterji J.).

3. Section I6, Indian Evidence Act, 1372.

4. Section II4, Indian Evidence Act, 1872 [illustration -(f) ].

5. Section 27, General Clauses Act, 1897.

6. Teja Sfrzgh v.3"asw.:zm, A.I.R. 1935 L311. 171, I72. (0. 5, R. 10, C.P.0- A-Lahore).

'7. In re De'fSonza_. A.I.R. 1932 All. 374 (s. 27, General Clauses Act).

8. Ramesh Chandra v. Natz'or;a1 Tobacco Co. A.I.R. I940 Cal. 36, 537, 538 (s. 27, General Clauses Act}.

9. Raopchand v. Range Lal A.I.R. 1914 Bom. 31, 32 (s. 27, General Clauses Act).

IO. Marihar v. Ram Sham-z', A.I.R. 1918 P.C. 102., III, 112 (Notice under s. 106, Transfer of Property Act).

II. Sundamm v. Sasha Ayar, A.I.R. 1957 T.C. 208 (0, 5 R. as amended in '['ravan0rce--C0chin) (Reviews

12. S. No. 170 {Comment of a State Government). 13, S. No. 167 (Comment ofa High Court).

1954

I0, C.P.C.

Bombay cases).

37.

103. The question of liability in England for "registered" articles was considered by us in detail. It appears to us, that "registration" in England really corresponds to "In- surance" under the Indian Post Office Act'. Hen.ce the analogy of the English Act would not be appropriate, in this context.

104. The matter was, however, considered by us on the merits. It was felt, that having regard to the high fees now charged for registration, some liability for registered articles should be imposed on the Post Oﬂice. A modiﬁed proposal was submitted to us, namely, a statutory maxi- mum for registration fee. But that was not approved. We think that a ﬁxed liability of (say) Rs. 50 should be im- posed. To implement this, we recommend a suitable amendment? of section 28.

105. It has been stated", that sections 30 and 32 are re- petitive, and may be re--cast. Bu-t the sections appear to be complementary to each other, and need not, therefore, be disturbed, in the absence of any difficulty caused in practice.

106. Section 33 deals with insured articles'. It has been suggested-5 (apparently with reference to section 33'), that besides the sender, the addressee must also be entitled to recover compensation (in respect of insured articles). Now. as between the sender and the addressee, this has to be worked out according to the contract between the sender and the addressee. On that point, the Post Office Act can- not appropriately make'a provision. But, as against the Government, only the sender is-, as the law stands now. The addressee can (if so advised and if so permitted' by the contract), sue only the sender, at present.

We think, that where the sender has assigned his rights to the addressee, the compensation should be payable to the addressee, by the Post Office.

To put the matter beyond doubt (particularly because the liability may be only "statutory") 5 section 33 should be suitably amended to provide, that where the sender has assigned his rights to the addressee, the compensation shall be payable to the addressee.

An express provision is desirable in view of the restric- tive language of section 33, which refers to the sender only.

1. For a detailed discussion, see Appendix I4.

2. See section 28 as proposed.

3. S. No. 96 (Suggestion of the Department).

4. See paragraph 3:, supra.

- 5. S. No. 102 (A High Court).

6. See paragraphs 2.4, 25, :9, supra.

Sections 30 and 32.

Section 337- insurcd arti-

cles.

Section 34 and V.P.P. articles.

Section 34 and cases of non-deli-

very.

10?. For the present purpose, it is unnecessary to consi- der whether, apart from such a provision as is. proposed,' the right to compensation, under section 33 would be assign- alble rig a beneﬁt of contract and therefore as an "actionable c aim -".

108. As regards V.P.P. articles, under section 34 of the Indian Act, the Central Government may direct that, sub- ject to certain provisions a sum of money spe-ciﬁed in writing at the time of posting by the sender of a postal article "shall be recoverable on the delivery thereof from the addressee, and that the sum so recovered shall be paid to the sender." There is, however, a proviso that the Cen- tral Government shall not incur liability in respect of the sum speciﬁed for recovery unless and until that sum has been received from the addressee. Though the proviso is expressed in rather wide terms, the cases already cited' would show, that if the post office delivers an article with- out realizing the price of the V.P.P. it is liable to the sender for the value of the article. In view of this inter- pretation, the question arises whether the proviso requires any modiﬁcation. Recovery of the price is a condition precedent to delivery, and if the post office does not carry out the condition which is meant to protect the sender, it is just and fair that the sender should not suffer damage. This principle, applied by the courts, should ﬁnd a place in the proviso to section 34. We recommend that the provi- sion should be modiﬁed accordingly".

109. Originally, this was the only change that we had proposed. But, regarding liability where the article is not delivered. the following suggestion was made in a com- ment" on our draft Report; sent by a State Government.

"In the opinion of this Government, the proposed amendment is a very reasonable one, but it might go further. This Government . . . . . . . . ..thinks that not merely in the case where the postal authorities have delivered an article sent by Value Payable Post, to the addressee. but also in the case where they have failed both to deliver the article to him and to return to the sender they should be made liable under a direct pro- vision made in section 34".

I. See paragraph 106, supra.

2-3. As to assignment in English law, see--- (3') Bailey, articles in 47 L.Q.R. 516 and 48 L.O.R. 248.

(ii) Chitty on Contracts (1961), Vol. 2, paragraph 867.

(iii) Hardy, Ivamy, General Principles of Insurance Law (1966), pages 364, 372, 374, 376, and 332-

4. Paragraph 24. surm-

5. This may also necessitate modiﬁcation of rule 102,, Indian Post Ofrice Rules, 1933.

6. 'S. No. 170 (Suggeetion of a State Government}.

The matter was discussed before us in detail.

The assumption made in the comment' (that the Govern- ment is not liable) is correct} And. we think that this position is not fair.

In our view, in the following case also, the State should be liable, narnely.-- -

"where the article has neither been delivered to the addressee 'nor returned to the sender in the original co-nditionf'. t In this respect, a query was raised before us, as to the following points----

(a) Whether this amendment does not make an in-

road on the general pI'OV1Sl01'1 in section 6, and {b} whether it is proper to make the Government liable for the value. We have reached the conclusion. that to prevent hardship, the proposed change is desir- able, particularly because fairly heavy charges are levied for Value Payable Post, which include charges under several heads'-'.

110 Under proviso (b) to section 39. money or saleable property (not being of a perishable nature), found in any undelivered postal article, shall be detained for one year in the ofﬁce of the Postmaster-General. Thereafter (if no person has established him right thereto), then the money is to be credited to the Post Oﬂice, and the saleable pro- perty is to be sold and the proceeds credited to the Post Ofﬁce.

It has been suggested" that, in section 39, in place of the period of one year, such period as the Central Government may specify may be .substituted. The suggestion states. that the number of undelivered postal articles is increasing? owing to increased postal trafﬁc. and it would be desirable to reduce the period.

111. We considered the suggestion' at_ sorne length. There are certain risks in reducing, the period In the man» ner suggested.

The periods taken up in various formalities under sec-- tion 37(3) and section 38 (1)15, and in detention under section 39, main paragraph", may not, in a particular case, take up I8._Cf. Univ?! of India v. Ramji Lal, A.I.R. 1965 All. 184, [86, paragraphs to.

2. See Rule 96 (2), Indian Post Ofﬁm Rules,

3. S. No. 96 ﬁsuggastion of the Department)-

4. Paragraph 11:), supra.

5. See also rules 208 and 205:, Indian Post Ofﬁcc Ru'cs. 1'93. 6, See Rul-:3 212 and 213, Indian Post 0f'ﬁv:e Rules, 1933' I933- Sction 39.

S ection 46 Money Orders to foreign countries.

more than, say, ﬁve months. If the period of compulsory detention under section 39, proviso (b), is reduced to, six months, there is a risk of the articles being destroyed be- fore the period of limitation has expired'. The claimant can get the sale proceeds, it is true, but valuable evidence will be lost, if the article is destroyed. We are not, there- fore, in favour of the proposed change.

112. (a) In a previous Report? of the Law Commission, a recommendation was made to the effect, that if an arrangement has been made between the UK. and India for the transmission of money orders, under the Post Oliice Act, 1908, prima facie _an appropriate provision might be in- cluded in our Post Office Act to obviate the necessity of referring to the English statute. (The English Act, section 87, provided, that when arrangements have been made between the U.K. and any other country for the transmis- sion of money orders, the provisions of the statute would be applicable to such money orders as far as is consistent with the tenor thereof").

(13) Reference may be made, in this connection, to sec- tion 46 of our Post Ofﬁce Act, under which, when arrange- ments have been made with any foreign country (including the U.K. or any British possession) for the issue and pay- ment of money orders, the Central Government has power to make rules to give effect to such arrangements. There is also a' general power to make rules under section 74, for carrying out any of the purposes and objects _ of the Act. Rules on the subject would, therefore, suiﬁce, and an actual amendment of the Act is not strongly required. The rele- vant provision in the latest U.K. Act on "the subject--the Post Ofﬁce Act, 1953-is section 24, under which, when an arrangement is made with the Government or postal admin- istration of any other country for the transmission of small sums through Post Oﬁices under theicharge of the Post- master--General and the postal administration of other countries by means of money orders, then sections 20 to 23 of the Act (containing detailed provisions as to money orders) shall, so far as is consistent with the tenor thereof, apply as they -'apply to British money orders.

No amendment of our Act is, therefore, required.

1. As to the period of limitation, see discussion in this Report on the subiect. paragraph 83 at seq, mfra.

2.Fifth Report (British Statutes applicable to India), page 63, bottom, and page 64, top,_Entry No. 198 relating to the Post Office Act, 1908 (In the U. K. this Act has been repealed by the Post 'olﬁce Act, 1953).

3. See now, section 24, Post_Oﬁic: Act, 1953 (English Act).

113. We now take up section 49 and the succeeding sec- Analrsis tions. The penal sections of the Act are analysed be-lcw with reference to the punishment prescribed} Fine only Secétions 49. S3, 59. '50 15'). 53. 54, 55. 55

7. Imprisonment arid Fine. Sections 52. 54, 55. 56, 58.

imprisonment or ﬁne Sections 50, 51, 53, Go (a), ISI (1), -62, 69 The sections providing for imp-risonment may be further analysed, as follows:---

imprisonment i I 7 years 2 years I year : I: ' ﬁ_1-nonths I month (3. 52-) (Sections 33, (S. 51 (1) {Sections 5:. L8. 50}. 54, 55. 56, 62). -

60 (0), 53} t

114. We have received a suggestion from the Govern- ment of a Union Territory? to enhance the punishments tor certain offences. The suggestion states, that during recent years, there have been many cases of (a) misappropriation of V.P.P. and insured articles, and U3) delivery of V.P.P., and insured articles and money orders to wrong persons and that the Post Oﬁice Act requires to he orriended to ensure that these articles are delivered to the right person. It suggests enhanced punishment for the relevant offences. We went through the penal provisions in the Post Ofﬁlle Act, from this-point of view. We feel that, for acts of dis- honesty and the like. sections 5.2 and 69 are enough. For negligence, section A-9(d) already provides a ﬁne up to fifty rupees. We also considered the question of increasing the amount of ﬁne (in section 49 to 51, 83 and 67). We, how- ever, felt that, on the whole there is no need for a change in the law. Active enforcement of the existing provisions would be a better course. We are not, therefore; inclined to recommend any change in this respect

115. With reference to section 52, it has been held" that it is a necessary ingredient of section 52 that a paper should have been extracted from the parcel (and not merely e:-:a-- mined). [That was a case in which the postal employees (accused) tampered with and extracted question papers of the S.S.L.C. Examination for March, 1936 (Madras)].

1. Cf. Ramciiandra tr. State of Mysore, A.I.R. 1964 SC. 170i, 1703, paragraphs 3----1o.

2. S. No. 98 {Government of a Uni cry).

3- In re -S-arrm-Khan, :'.rI.R. 1939 Mad. 283, 229 left hand -column.

of penal 3 sections.

Sections 49, 50! 51} 63! and 67.

Section 52 .

Section 53.

'Section 53, Proviso (Interpre-

ration)-

Section 62.

Sc .1101! 68.

ofﬁcer before mere neglect or refusal to deliver 42 No changes are necessary in the section.

116. As regards section 53, theexpression "wilfully" has come up for detailed consideration before the Supreme Court.' No changes are necessary.

11?. Section 53, proviso, deal with interception. It does not, however, stand on the same footing as section 26. Sec- tion 26 interferes with the freedom of expression, and re- quires amendment'-', while section 53 deals only with prose- cutmn. Hence, it need not be amended.

118. We have received a suggestion3 to increase the punishment under section 62. The section embraces many acts,--serious as well as light--and, therefore, it would be unwise to enhance the punishment for all acts punishable under the section. It may also be added, that some serious acts of interference with letter boxes, etc.,--for example---- mischief by ﬁre--would be punishable under the Indian Penal Code also'. The punishment need not, therefore. be enhanced

119. In its comment on our draft Report, a State Gov- ernment" had stated, 'ﬂit seems to this Government that the term of the sentence of the imprisonment which can be imposed under the section (section 62) should be enhanced, so that adequate punishment may be awarded in the case of serious offences such as trying to burn down a letter box".

In our view, no such change is necessary. Serious cases of burning can (as already pointed out)" be dealt with under sections 435--438, Indian Penal Code.

12.0. Under section 68, whoever fraudulently retains or wilfully secretes or makes away with or keeps or detains. or, when required by an officer of the Post Oﬁice, neglects or refuses to deliver up any postal article which ought to have been delivered to any other person, etc. is punishable. A private Member's Bill introduced in the Lok Sabha7 pro- posed an amendment of this section whereunder, in sub- stance, a person who does not return to the Post Ofﬁce such a postal article becomes punishable; the existing require-

ment that there should ﬁrst be a requisition by a postal may be I. Ramchemdra v. State of Mysore, A.I.R. 1964 S.C. 1701-

2. Paragraph 86, supra (Recommendation regarding section. 2.6).

3_ s_ No. 108 (A Deputy Inspector General of Police)-

4. Sections 435 to 438, 'Indian Penal Code.

5, S, N.-._ 149 (suggestion of: .3 brute Government).

6. See paragraph 118, supra.

"7. gee Bill No. 31 of 1962 (L01: Sabha), introduced by Shri Saris Chandra amam.

punished, Would. thus, be dispensed with. under the pro- posed amendment. We do not think that such a far-reach- ing change is advisable. While it would be a good thing if every person manifested his civic sense by returning a pos- tal article wrongly delivered to him, even without a request from the Post Oﬁice, failure to do so should not be made an offence. Attention may, in this connection, be invited to section 55 of the English Act, which also does not go to that length.

121. There is one point on which the section in the Eng- lish Actl differs from and is Wider than section 68. Under the English Act, the provision isapplicable to a postal arti- cle (in course of transmission by post) or any mail bag:

which has been found by the offender or any other person. (besides a postal article which ought to have been delivered. to any other person). This seems to be intended to cover a case where an article meant for 'X' is found by 'Y', though not "delivered" to him (the assumption being that the words "ought to have been delivered to any other per- son" do not cover this case). It does not, however, appear to be necessary to make such an elaborate provision. So far as articles of value are concerned, such cases would be rare, because they would be insured or, at least, registered, and, therefore, there would always be actual delivery by a postal oﬁicial. -

In its comment on our draft Report, a State Govern- ment" had stated:---

"The real deficiency in the section which required to be made up is, that it does not cover postal articles found by a person though they were not delivered to him and it has been sought to he made good in the corresponding section of the British Post Oﬁice Act of 1953, section 55, by introducing the words "any postal packet in the course of transmission by post or mail bag which has been found by him or by any other per- son." In the opinion of this Government, section 63 of the Indian Post Ofﬁce Act should be remodelled on the pattern of section 55 of the English Act of 1953.".

No such change is necessary, in our view.

122. (a) Under section 6'9, a person who wilfully and maliciously, etc., opens any letter or does any act preventing due delivery; to another person is punishable. A private Mle1'nher's B111 introduced in the Lok Sabha' proposed to substitute the word "knowingly" for the Words "wilfuﬂy and Fn'=t1iCi0U51.V"- We think that the word "knowingly"

1. Section 55, Post Orﬁc.-. Act, 1953. 1 3- N0- I70 (Suggestion of a Sttc Government).

3- Bill No. 3: of I962,(Lol< Sabha) introduced by Shri Satis Chandra Samanr.

Section 69' Section 72,

- Authority for prosecu-

tions section of Act.

Suggestion to e certain offences cog-

nisublc con-

sidcred.

would not fit in with the general tenor of the section. Diversion of letters with the intention of injuring another person is the gist of the offence punished by the section, and intention is the paramount consideration; knowledge has not much relevance. No change, therefore, is neces- sary on this point. The corresponding section in the Eng- lish Act' runs on the same lines (on this point) as our section.

(lo) There is one point on which the English section} is wider. The Indian section is conﬁned to letters, while the English section speaks of "postal packet" which, as deﬁned in section 87(1) of the English Act, means a letter, post- card, reply-post-card, newspaper, printed packet, sample packet, or parcel and every packet or article transmissible by post and includes a telegram. Though cases of postal articles (other than letters) being diverted would not be many, there is no harm if the section is widened to cover all postal articles. . ..

123. Section 72 runs as follows:--

"72. No Court shall take cognizance of an offence punishable under any of the provisions of sections 51, 53, 54, clauses (a) and (b), 55, 56, 58, 59, 61, 64, 65, 66 and 67 of this Act unless upon complaint made by order of, or under authority from, the Director General or a Post Master General.".

As a new section2 has been proposed to penalise steal- ing a mail bag or postal article, we considered the question Whether the new section should also be mentioned in sec- tion 72. After some discussion, we have come to the con- clusion thai it is not necessary to mention it in section '72, particularly because it embraces the stopping of a mail train also.

124. We have received a suggestion'3 to give the power under section 72 to Postmasters of District Headquarters and to Superintendents (in view of the opening of large number of Post Oﬂices). We think, that this may lead to harassment or inequality in the actual administration of the law, and are not in favour of the suggested change.

125. We have received a suggestion' to make certain offences under sections 52, 61, 62, 63, 6'? and 68 of the Act cognizable and non-bailable. The penalties under some of these sections (e.g., section 67) is ﬁne only, or imprison-

I. Section 56, Post Ofﬁce Act, 1953.

2. See section 56A (proposed).

3. S. No. '98 (Government of a Union territory).

4. S. No. 108 (A Deputy Inspector General of Police).

ment, for a short period. It is, therefore, better to leave the matter to be governed by the ordinary provisions of the Second Schedule to the Code of Criminal Procedure, rather than to enact Special provisions as to cognizability or bail.

126. Section '73 relates to district posts. It has been sug- gested} that the section may be deleted, as there are no district posts. The section is harmless, and we have not therefore, accepted the suggestion.

127, A suggestion for inserting a provision to empower the Post Office to place letter boxes on the land of local authorities, has been made by the Department} The sug- gestion states, that the Central Government has "full pow- ers" to erect telegraph or telephone poles on any land, under the Telegraph Act, and that difficulty is caused be- cause municipalities refuse to give permission to place post boxes on their land.

We have considered the relevant provisions of the Tele- graph Act. It appears, that the assumption that the power under the Telegraph Act is full or unqualiﬁed, is not cor- rect. The relevant provisions of that Act? do not go to the length of empowering the Central Government to place telegraph poles, etc.. on the land of local authorities.

That being the position, we are not in favour of the suggested change.

128. A suggestion" has been made to add a provision penalising strikes, "go-slow" tactics etc. by postal em-- ployees. We think. however, that the Post Office Act is not the proper place for penalising such action of a concert- ed type. For acts of an individual employee, the Post Oﬁice Act' does make the necessary provision. No change is, therefore. recommended on this point.

129. Regarding telegrams, the following suggestion has been made":--

"A1 present, telegrams are being sent by ordinary tappal in place where the telegraph offices are not pro- vided. In such cases the telegram will be delivered later than an ordinary letter. It is, therefore, suggest- ed. that provision may be made either in the Act or rules for delivering telegrams by special messengers on payment of a nominal fee from the addressee for such special delivery)'. a

1. S. c6 (Suggestion of the Dcpartmeut).- '' Q' l

2. See sections 10, 12 (.5), 14, etc., Indian Telegraph Act, 1835 (13 of {B85}.

3. S. No. 103. (A Deputy Inﬁpector General of Police)-

4. See section 50.

5. S. No. 114 {A State Government).

Section 73.

Power to place post boxes on municipal lands.

Strikes.

Telegrams sent by post in plap oes where tltere is no telegraph oﬂice.

it ".1i!'_§'s;l 6 The suggestion reall Telegraph Act1.

Act is not required.

Limitation for suit for -

compensa- hm tion for postal arti-

°1=- the following:--

Art. 30 Art. 31 Art. 48 Art. 49 Art. 65 Art. 115 Art. 120 C I year) E I year) ( 3 years) ( 3 Years) C 3 years) I: 3 years) ( 6 years)

131. (51) Of these?' articles 30 and 31 related to y pertains to rules under the Indian Hence, an amendment in the Post Office

130. A question2 has been raised as to the period or itation for a suit for compensation for a postal article which is not delivered. Some of the articles in the Limita- tion Act of 1908 apparently relevant to this subject, were Against a carrier for compensa-

tion for losing or injuring goods.

Against ti carrier for compensa- tion for non--delivery of, or delay in delivering goods.

For speciﬁc movable property lost or acquired by theft or dishonest misappropriation or conversion or for compensa-

tion for wrongfully taking or detaining the same.

For other speciﬁc movable property or for compensation for wrongfully taking or in-

juring or wrongfully detaining the same.

For compensation for brcah of a promise to do anything at a speciﬁed time or upon the happening of a speciﬁed con-

tingency.

For compensation for the breach of any contrct, express or implied, not in writing re-

gistered and not herein specially provided for.

Suit for which no period of limitation is provided else-

where in the Schedule.

"carriers", and could not apply to the Post Oﬂice.

2. Paragrah I, supra.

3. Paragraph 133. MP"-

1, The Indiaii---Te1egraphs Act, 1885 (13 1885}, section 7 (2).

(b) Articles 65 and 115 were based on "contract" and their applicability to the Post'-2 Office could be a matter of some debate.

(-2) Articles 48 and 49 allowed a period of 3 years. Article 48 was intended for actsof conversion and the like, but article 49 could have been argued as applicable to certain kinds of acts, e.g., wrongful detention of, or injnrg,-. to, a postal article.

132. The distinction buetw},-en article 31 and article 43 is explained in the undermentioned cases"-"-5.

133. As to the distinction between articles 48 and 49, the underrnentioned case" may be seen.

134. The question whether, in a case which falls within the language of both articles 31 and 36, article 31 applies or article 36 applies would perhaps deserve consideration'. But it is unnecessary to discuss it now, as old article 36- has now been combined with old article 120".

135. It may be noted, that the Limitation Act does not contain any speciﬁc articles dealing with suits to recover compensation under stotute9-"'. For a suit by the Central Government to recover a statutory cess, the starting point would be governed by article 120 (residuary), and not lay article 50 (hire of animals. etc)".

Again, for compensation under Rule 75A of the Defence '|2_]3 of India Rules 1939, article 120 is the appropriate' I. Cf. paragraphs 24-29 and 34, supra.

2. See also Debcmanda V. Union of India, I.L.R. I964 Cut. 907 ; A.I..R'. 1:955 Orissa 118.

3. "G. P. Venkararaman &' Co.. V. Union of India, A.I.R. 1958 Mad. 321:, 32.4. paragraph 10, II (Article 48 does not apllly ifthe relief PIa§'n:d' for is not for possession).

4. Union of India V. Mlegh Raﬁ A.I.R. I958 Cal. 434, 437. paragrah. 14- (K. G. Das 'Gupta. 5: U. C. Law J]'.).

5. Mmmb Ali' v. U:-u'oﬂ, A.I.R. 1954 Born. 297.

6. State of West Bengal v. Ghandi Charon, A.I.R. 1958 Cal. 433, 434.

7. Cf. G. P. Vankataraman <3-' C'a., 1'. Union of India, ALR. 1958 Mad. 321, 325. paragraph 13. '

8. See article 113, Limitation Act, 1963 (36 of 1963).

9. Bapimju v. Azinmilah, A.I.R. 1957 AI'. 79, 31, paragraph is (Subba Rao C. J'. and Bhimasankaran J.) (Article 120 applies to a suit for compensation under the Vegetable, etc., oils Order).

10. See also paragraph I05, supra. II. R. C. jail V. Umim of India, A.[.R. I962 S.C. 1931, 1234, paragraph 5_ I2. Pauchanan Dos V. Province of Orissa, A.I.R. I955 Orissa 57, 6:), paragraph 8.

:3. See also State of Wes: Bengéf v. Brindaban, .A.].R. 1957 Cal. 44, paragraph r3--19, and paragraphs 42-44, 5:8 Hence, if the liability of the Post Ofﬁce is regarded as purely statutory, article 120 would apply to suits for com- pensation for loss, etc., of postal articlesl.

Since there is no speciﬁc article ﬁxing the time limit for a suit to enforce a statutory liability for speciﬁc perform- ance of the contract inferrable from a statute or statutory rules, article 120 would, presumably, apply'.

136. It is possible to argue that the Government is not governed by article 115, particularly in respect of claims relating to insured postal articles where insurance is com- pulsoryi'-5.

137. In one case, it has been held", that since the Post Office does not carry articles for hire, but is perforniing its duties as a branch of the revenue, it is not a "common

-carrier". As regards limitation, it was held, that articles 65 or 120 (of the Act of 1908) would apply. In either case, the period would be three years or more.

[It may be noted, that though the Government is not a "common carrier" for the purposes of the Carriers Actl, it has ben held", that the Secretary of State, when sued

-as the owner of a railway concern, is a "carrier" for the _-purpose of article 31 of the Limitation Act, 1908].

138. Whatever be the precise article applicable, it is

-obvious, that the period would not be less than 3 years.

Now, it has been suggested'-"' by the Department, that the period should be one year. The suggestion also states, that article 120 of the old Act has been held to be applica- 'ble to suits for compensation for postal articles.

l. Cf. Matfmra Prasad v. Gaya Mum'c2'pal:'ry, A.I.R. 1933 Pat I92-

2. Cf. Br1'_f Lal v. State of U. P., A.I.R. I954 A11. 383, mg, paragraph 54 (case relating to speciﬁc performance of a contract for mining lease).

3. Cf. 'I're'tel (Law of Contract) (1966), page 5.

4, As to "compulsory contracts, comparcfaitirgdra Nath v. Calcutta Car- pararion. A.I.R. I945 Cal. 144, 152 (Article 120).

'5. For history of article, us, see Tricamdas V'. GapiN ark. (I916) I.L.R. 44 Cal. 759, 766 (P.C.).

-6. Debananda v. Union of India, I.L.R. 1964. Cuttack 903 ; A.I.R. I965 Orissa I18.

*7. See seetizn 2, cleﬁniton of "common carrier", Carriers Act, 1865 (3 of 1865). _ .8. See Alamgir F_ootwea_r Co. v. Secretary qf Stare, A.I.R. 1933 A11. 466 (case regardlng railway). r "9. S.' No. I----Sugggction of the Department of the Government of India concerned with the Post Office.

"IO. The suggestion in question was made after the Law Commission Third Report (Limitation Act) was submitted.

The judgment referred to by the Department seems to be a judgment of the District Judge, Jaunpurl. It was .held in that case, that a suit for compensation for loss: of

-currency-notes sent in an insured cover would not be governed by articles 30 and 31, as the Post Ofﬁce is not a "carrier", but it merely transmits articles from one place to another and the transmitted articles are actually carried '-by other carriers?

139. it may be noted, that the reason why a short period

-of limit ation was provided in articles 30 and 31 was the =difﬁculty of investigating and settling claims preferred against carriers after a long lapse of tim[e, in respect of a few articles out of the quantity of goods that are constant- ly passing through their hands"-5. These reasons apply to the Post Oﬁice also.

140. The above discussion is with reference to- the Limi- tation Act of 1908. The Limitation Act of 19635, which has replaced the Act of 1908, makes certain changes. There- under, the suits governed by old articles 30-31 are govern- ed by the time-limit of three years (instead of 1 year)'. This change is the result of the recommendation made in the Law Comrnission's Report on the Limitation Act".

That Report recommended an increase in the period, because, in the casje of railways, it is common knowledge that a long time is spent by the consignee in correspond- ence and, often, lengthy correspondence ensues. The

-question of postal articles was not, considered speciﬁ- l-cally. We think, that in respect of postal articles, the period of one year should suffice. Postal articles are not

-so costly as those sent by rail. and do not pass through many "systems" (as in case of Railways). Nor_are they so numerous as to involve a study of many i accounts before a suit is ﬁled.

1. Firm Sanwal Das v. Union of India, Civil Appeal No. 646 of I954 decided by the District Judge, Jaunpur on 31-3-1968.

2. A cop of the judgment is contained in D. G. P. 8: T. ﬁle No. I2-5-('60 I, which we had obtained for perusal.

See: G. I. P. Rly Co. v. Radha Kishcm, A.I.R. 1926 N35 5'7. 59, right-hand (D.B.).

4._?'a1du v. The Asiatic Steam Navigation Co., (I916) I.L.R.39 Mad. 314, 3:5, left-hand (referring iudg-ment of Spencer I). ,- A.I.R. 1916 Mad. 314 and 315.

5. Cvulab Ra: v. Secretary of State for Inida in Council. I-LoR- (1941) 2 Cal. 160, 167.

6. Limitation Act, 1963 (36 of 1963)- 7, See Limitation Act, 1963 (36 of 1963) articles I0 and II.

8. Third Report of the Law Commission (Limitation Act). page 30, para- graph 72. and page 83, draft Article 1.

7-61 Law. , . 3,

141. We, therefore, recommend, that two articles deal- ing with compensation for postal articles may be inserted in the Limitation Actl, say, after article 11 of the new Limitation Act (corresponding to old article 31), ﬁxing a period of one year" for such suits'.

The starting point should be the same as is mentioned in articles 10 and 11 of the Limitation Act, 19{i3.

142. The new articles to be added" in the Schedule to the Limitation Act, 19635 may run somewhat on these 1ines:---

Cf. inicle " IIA. :t;fng;?£forC€7g;:;2~f One year $22 Ioss afin_fm','|»"' 10, irnita- - - ' . pemarzon for losing or ﬁlgoé ﬁg;-' of injuring a postal arti-

I963). (:12.

cf_ 31-ﬁc1e 1; 11B. légainst 21:; Central One year Wﬂfﬂ thehposral arti-- L'm'taﬁon mvemmam or campem ce Dug! I to be de- A131; 1953 ration for _non-defivery lioered. ° (35 of I953}, of or delay in dehtlefzﬂg a postal article.

No'rE.--The heading in the portion of the Schedule to the Limitation Act, I963 which governs articles 6-55, is " Suits on Can- tracts ". The articles thztnielvcs mav, hawever, cover suits on torts also. 7-"

Lac,"-,,n of 143. About thle placing of the new articles, the follow-

th°_new _ing comment had been made9 on our draft Report :--- articles HA and 1113- "It appears to this Government that since the proposed Articles relate to a speciﬁc category of cases, namely, suits against the Central Government for loss of or injury to or non-delivery of articles sent by post, the diﬁculty may easily be solved by placing them under a separate and appropriate heading.".

In our view, no such change is needed.

1.Lin-litation Act, 1963 (36 of 1963).

2.See paragraph 140, supra.

3.As to rules relating to disposal of undelivered postal articles, see sec-- tions 37 to 39 of the Act, and Rules 208 to 215 of the Indian Post Ofﬁce Rules, 1953.

4.Paragraph I41, supra.

5.Limitati0n Act, 1963 (36 of 1963).

6.As to the expression "Central Govemrnent", see secti011 79, Code of Civil Procedure, 1908, and article II2, Limitation Act, I963 (36 of I953).

7.See rulings under old Articles 30 and 31 ; particularly G. I. P. Rly Co, v. Rasett Chandmdl, (I395), I.L.R. I9 Bum. I85, I36 (Bayley C. I3), I87, :88 (Ferrari L).

8.See also the 1899 Amendment as construed in jaldu Venkazasubba Rao V. Asiatic Steam Navigation ($0., (1914) I.L.R. 39 Med. I, 10, II, 12, (F.B.) and in Chiranji Let! V. B. N. R!y., I.L.R. 52 Cal. 372; A.I.R. I925 Cal. 559. 560- .

9.S.'No. 170 (A State Government).

51'

144. We givie below a chart showing the new articles [é.e., in the [imitation Act, 1963) corresponding to arti- cles of the 1908 Act, relevant to the subject._ Articles in the Indian Limitation Bani, I908 Psrticles in the Limitation Act, I963 30 no (period incrc send from I year to 3 years). 31 II {period increased from 1 year to 3 years'). 48 91 [also 63).

.19 9: {also 69).

65 27.

H5 55- Izo 1:3 {period reduced from 6 to 3 years}.

145. In its comment on our draft Report, a State Gov- ernment had stated' as foI1ows:-----

'The starting point of _"im;itat1'u:-:1 might be ﬁxed at the date on which the article mentioned was posted, as under the English Act, thus taking away from the p1aintiﬁ' the advantage of the period bet- ween that date and the date when the loss or injury occurred or when the article ought to have been deli- vered and, at the same time, the period of limitation might be enlarged to two years. This would also remove the uncertainty about the L=tnI"ii)'.'_':: point which, under the 'E-J-.'.i?:'-'.'.i_'(1g law, is vsgu-e and indeter-

minate' This Government suggests the above pro- posal for consideration. This GOV-EI'I1l'I1E:I'112 thinks that instead of "for losing or injuring a postal arti- cle", it will he better to say "loss of or injury to a postal ax-ﬁcIe".'.

Our view is, that no change in the draft is needed regarding the pe.'r'1-fJd_._ or regarding the starting point or the wording, as the proposed articies follow the worxiing of the existing articles regarding carriers. {The English provision which the comment has in mind is discllssed elsewhere} 2.

146. The corresponding provision in England is quoted below-' :---------

"(3-] No proceedings Shel} lie against the CTOWII under sub-sectior. -{2} of section nine of the Crown (A State Government},

2. Paragraph 146, infra.

1\_ Section 5, 5ub--gec[ian Q3), of the Law Reform {Limitation of Actions] ' Act, 1954 (2 and 3 Eli: 2.-r. 15].

Limitation-

starﬁng ;- oi:11 .

English tow as to 1iIl'1ua-

liﬁm.

luleanillg uf sion " loss' " oon-dcli-

Few. pa, etc' and scope of relevant articles re-

lating to carriers.

in articles 10 and 11 several questions.

Proceedings Act, 19-17 (which authorises the taking of proceedings against the Crown in respect of loss or damage to Ijegistered inland postal pickets) unless the proceedings are begun within the twelve montiis beginning with the date on which the packet in question was posted".

The provision has been thus eXplained'----

"Sub-section. (3).----This is the one exception to the general rule of parity betwejen Crown and sub- ject. When the Crown Proceedings Act. 1941, was passed, the Crown had the benefit of the twelve months period under the Limitation Act, 1939, sec- tion 2l, so that no special provision was required. With the abolition of section 21, however, it was felt that serious embarassrnent would be caused to the Post Oﬂice, ii, in relation to their liability for regis- tered inland postage packages, the old twelve months period was not re-enacted. To check a claim and trace out the relevant documents (which ea: hypo- thesi. would have to be kept} would aiier that lapse of time be inordinately expensive, if not impossible, and might well. result in a mass of bogus claims to be paid because they could not be refuted. Any honest person would know about, and claim for. a lost regis- tered package long before twelve months had gone by, and it seems not unreasonable that a special period should exist for this special type of case. The old limitation Period of twelve months is according- ly re-enacted by this subsection".

14?. We are aware, that the various expressions used (old articles 30-31), have raised Thus, one question is as to the precise meaning of the expression "loss" in article 303.

As to the starting point under article 3!}, it has been held, that time does not run from date of knowledge of loss, but from date of loss-'*4-5.

"Loss" in article 30 means loss to the carrier?

1. Stephen Chapman, Statutes on the Law of Torts. (1962), page I0 3' LRIPILD 444- _ . See 34:5 Narac'n v. G. G. of India, A.I.R. 1951 Cal. 462, 464, para-

graph 12.

. Fun-hay v. Union of India, A.I.R. 1950 Cal. 458, 4.6:, paragraph 27'. . E. I. Rly. v. Gopi Lat, AIR. 1941 Cal. 304.

. O. T. R13-. V. Mrs. Karen: Chand, A.I.R. I958 A11. 234, :53, para- graph 66.

._"r'zrgaI Kishore v. G.I.P. R1}-., I.L.R. 45 All. 43 ; A.I.R. 1923 All.

22. 53

148. Under article 30, the burden is on the defendant (who seeks to non-suit the plaintiff on the ground of limitation) to prove that the loss occurred before one Year from suit'-3.

149. Another question is, as to the meaning of the expression "non-delivery" in article 31. The expression has now been given a wide meaning by the ease--law.

"Non-delivery" of goods may be due to a variety of causes-

'The word "non-delivery" is a genus. Non--deli- very of goods may be due to a variety of causes, e.g., (1) loss of the goods by the carrier, that is to say, 7 loss owing to acts such as theft and robbery. (2) Deterioration owing to natural causes. (3) Destruc-

tion owing to natural causes such as ﬂood or artiﬁcial T causes, e.g. incendiarism. (4) Conversion. (5') Deten- tion, e.g., where there is a dispute about wharfage and the railway administration wrongfully detains the goods. (6) Misdelivery either by honest mistake or on account of fraud." (7) Capricious act of the railway employees, e.g., the goods even on arrival at the destination are not delivered to the owner with- out any rhyme or reason. (8) Wrongful sale of goods, e.g., where the railway administration wrong- fully sells the goods on arrival at the destination".'.

Whatever be the cause of non-delivery, article 3] applies'.

150. The starting point in old article 31, as indicated by the words "ought to be delivered", may not be easy to apply, in a particular case5-5. The matter has been discussed elaborately in a judgment approved by the Supreme Court".

Like to "loss" in section 72, Railways Act, see G. G. in Comma'! v. Musaddi Lal, (I95!) 3 S.C.R. 647, 65:.

2. Union of India v. Amar Singh, (1960) 2 S.C.R. 75, 88 ; A.I.R. I960 S.C. 233, 235.

3. Cf. G. G . in Council v. Mahabir Ram, A.I.R. 1952 All. 891, 896.

4. See Union of India V. Ainkumar A.I.R. I962 M.P. I90, 192, paragraph 5- . . . . .

5. See Mitra, Law of Limitation and press:-1-iPt1cn, (1949), page 409

6. See also Anandalal v. Union of India, A.I.R. 196: S.C. 108, :10, para- graph 5.

7.Boo:emaI v. Union of India, (1963) r S.C.R. 70, 76, 78, approving Dmm'm'on 0] India v. Firm Arrnnchand, A.I.R. 1957 Punjab 49 (F.B.).

8. The discussion in Dominion of India v. Firm Amir Ghana', A.I.R.

- 1957 Punjab 49, 54, 55, paragraph 21 -24 (F.B.), may be seen.

151.. _Most High Courts have taken the View that article 31 applies lZ().SLl1tS on contracts, as well as to suits on tort. There is, however, some uncertainty as to whether article 30 applies to suit on contracts'. -

152. It may, sometimes, be difficult to decide which of the two articles apply to a case of short deEivery'~'--'.

It is, however, clear, that where the goods are deli- vered but in a damaged condition, article 30 applies'-5.

153. Further, the question is sometimes raised if there may be some overlapping between the two Articles"

or whether the two are distinct from each other'?-3.

154. These questions cannot, however, be considered in this Report. For the present purpose, we have to adopt the existing language of the articles in question".

155. The Articles apply not only to a suit by the con- signee, but also to a suit by the consignorm-11-'Z.

1. See Union of India v. P:-abhor Marlzezing C-:2-., A.I.R. I953 Assam 190- 19::., paragraph IO.

for damages for breach ct' contract for shortage, Article I15 ap- p es .

2. See the rival contentions put forth in Sirambhuram 1:. Union of India, A,I.R. I953 Fat. 118, 119, paragraph 4.

3..5'ee case-law discussed in O. T. Rly. v. Mrs. Kai-am Chard'. AIR' 1958 All. 234, paragraphs 12, 21, 4:3, 42 (}'-.B.). 4,. j'etmul'1 V. D. H. R'l_-y., A.I.... I952 S.C. I379, I335, para

23.

5. See also!Dgm:':-don of India V. Nagardas and 00., A.I.R. 1955 Mad. 235, 236, paragraph

6. Cf. Naiimal Swadesfzf Stores V'. G. G. Council, A.I.R. I948 Sind 25:

33, paragraph 18.

'7. Fﬁr an explanation or the distinCti0n between the two article-s,see O. T. Rl'y., Y .x.f¢s.Karam Chanel, .h.I.'R.I9S3 Ni 334: 14-5: 3.55: B%f3S1'3-P'~'|5- 33 and so (F.B.) (Article 30 apples only when the carrier loses or injures the goods. I: does not apply when the loss occurs 10 the plaintiff for some other fault of the carrier. Artic1e3r was applied for loss owing to misconduct). .

8. Sceffwala Dart V. Union of India, A.I.R. 1953 Fat. 351 363, Patna graph 7(Sinh aj.) {Under article 30, the goods -should be last or damage Undcg article 31, the goods should not have been delivered, or there have been delay).

9. See paragraph 144, supra.

ID. Mutsaddi v. 3. N. RI;-. (1920) I.L.R. 42 A11 390 5 A-LR. 1920 All-

157, I53« 1;_ ['}n',.gaij1'Lal'\.'. :2. N. RI3.r.. (19:41 52 C 1!. 372 I AIR. 1925 Cal. sss, 561- ' (Article 30 applies only when the carrier loses the goods').

I2. Vally Mohaniad v. Nerharlana' S. N. Go. Lrri, A.I.R. 1924 Cal. 173. I75 (Reviews cases).

156. '1.'he question where exactly the new articles' should be placed,_ has caused us some anxiety. Articles 10 and 11 (cf the Linutation Act of 1963) are grouped under the heading "Suits on Contracts". If the new articles are _placed_ immediately after them, there is, no doubt, a possibility, that an argument may be advanced that they are conﬁned to suits on contracts. Now, if the liability of the Post Office is regarded as purely statutory"-"--'*--5, then the placing of the new Articles after Articles 10 and 11 may become inappropriate. On the whole, however, we think" that it is convenient to place them after Articles 10 and 11, because of the similarity in the language of those Articles (existing Articles 10 , 11) and the proposed new Articles.

157. The points arising out of British statutes applicable to India, on matters connected with the Post Ofﬁce, as dealt with in a previous Repo-rt7, have been already dis- cussed3 at the appropriate places.

158. The important changes which We recommend in the Act have been explained above. The other changes which we recommend will be apparent from the draft amendments9 and Notes on Clause".

159. We should make one point clear here, namely, that the question of revision of the Rules made under the Eliot is not within the scope of this Report. We have _studied

-some of the rules, for the purpose of understanding the actual working of the Act, and have also ventured to sug- gest some changes", in the Rules where the matter was very important. Nevertheless, our study of, and recom- mendations regarding, rules are conﬁned to points Whilch arose in connection with revision of the sections of the Act themselves.

I.Pai-agraphs I41 -- I44, supra.

z.See paragraphs 25-29 and 34, WP?"-

3,cf. Lord Denning's judgment, referred to in P3fai!.fBPh 29: WP"-

4.As to Indian cases on statutors' Liabilifif. 596- (Q gecmm-y of Sm; v, Gum Prasad, (1892) I.L.R. 20 Cal. 51, and (if) Maihura Pmsad v. Goya Municz'palEIvvi A-I-R- 1933 Pat 192 (Article :20 applied).

5.See also paragraphs 135 and 141 --_'I43e WP"?-

6.Sec also paragraph 142, supra. _

-7_Fi,fth Report of the Law Commission (British Statutes Applicable to India).

-, - - _,, '1 1-,' _- - cfon 9 for re-

8'g§;3:e itﬁcgiitigaﬂgfr; Sggtloiagcligfi) 46f()t'cirmi€"rlo:iel*f"ul-clgrsl (Pelragre pl 1»:

12, 41 and n2, supra).

9.Appendix 1.

.'io.Ap;-cndix 2.

"for cmmplcl paragraph 97 and paragraph 103 {foot-note), supra.

British Sta;

tutcs appli-

cable [0 India on the subject.

Other changes.

Amendment of rules not C011- sidered.

[I6

160. In order to give a concrete shape to our recommen- dations, we have, in Appendix I, put them in the form of draft amendments to the existing Act.

Appendix II contains Notes on clauses, explaining, with reference to the draft amendments in Appendix 1, any points that might require elucidation.

Appendix III summarises our recommendations in: res- pect of other Laws (or in respect of rules under the Act-).

Appendix IV contains a detailed note discussing the constitutional aspects of some of the sections of the- Act.

Appendix V discusses in detail section 26.

Appendix VI contains a list of some of the important provisions of Central Acts dealing with "emergencies".

The list is not exhaustive.

Appendices VII to XIII deal with the position as to interception of postal article, including laws in some other countries.

I Appendix XIV contains a note on liability for regis- tered articles in England.

1. J. L. KAPUR--Chairman.

2. K. G. DATAR . '1 2: 2: as L A I

5. RAMA PRASAD MOOKERJEE P. M. BAKSHI, Joint Secretary and Legislative Counsel.

New Delhi;

The 20th February, 1968.

EXPLANATION OF ABBREVIATIONS USED IN APPENDIX 1 Bing. Act=The Post Ofﬁce Act. 1953 (1 and 2 Eliz. 2 c. 36).

APPENDIX I RECOMMENDATIONS AS SHOWN IN THE FORM OF DRAFT AMENDMENTS (This is a tentative draft only) REPORT ON THE INDIAN POST OF ACT, 1898 Section 1 In section 1 of the Indian Post Ofﬁce Act, 1898 (herein-- 5 of I393. after referred to as the principal Act). in sub-section (1), the word "Indian" shall be omitted, Section 2 In section 2 of the principal Act, after clause (13), the following clause shall be inserted, namely:-< '(bb) "mail" includes every conveyance by which gf_ s_ 37(1), postal articles are carried, whether it be a ship, a'ir-- Eng. Act. craft, vehicle, horse or any other conveyance, and also :1 person employed in conveying or delivering postal articles'. ' Section 3(c) In section 3 of the principal Act, in clause (C), after the words "according to the usual manner of delivering postal articles to the addressee" the words "or the placing of a postal article into a Post Oﬁlce Boo: at the post office rented by the addressee" shall be inserted.

Section 4 (1) In section 4 of the principal Act, in sub-section (1.), C15 5- 3 after clause (b), the following clauses shall be inserted, gig (l'l)i3 A name1y:~-- 315 CL "(bb) letters conveyed and delivered by the sender thereof persﬂnally:

(bbb) documents issued by a court of justice or Cf, 5, 3(2) other authority entitled to issue the same, or any -re- (d),EHg-,Ac1.

turn or answers to such documents sent conveyed and C); S' 3'7') . . ,, ' ' (e , Eng.

delivered otherunse than by post. Am

(ii) in clause (C), after the words "by sea" the words "or air" shall be inserted, Section 5 In section 5 of the principal Act, in clause (b), after the Curnpafﬁ words "ports or places in India", the words "and owners section 3(3) of or persons in charge of any aircraft on a flight between ff): 5115119"

places in India" shall be inserted. °"

Section 10 In section 10 of the principal Act, the following sub- section shall be inserted at the end, namel}/:~--

"(3) Without prejudice to the generality of the provisions of sub-section (1), the Central Gﬁoernment may, make rules to give eﬂect to such arrangeraents, in respect of postal. articles other than those to which sections 36 and 46 apply."

Section 23 In section 23 of the principal Act, in sub-section (3). after clause {b}, the following proviso shall beiinscrted, namely:~--

"Provided that before any such article as is speci- ﬁed, in clause to) of section 20 is destroyed, notices in writmg shall be sent to the sender and the addressee, and the article shall not be destroyed until the expiry of one month from the date on which the last of such notices is sent."

Secti-311 26 In section 26 of the principal Act,--. (1) subsection (2) shall be omitted,-

(ii) the following sub-section shall be inserted at the end, namely:----

"{3} In respect of any letter, postcard, book or newspaper, on order under subsection (1) may be Passed only when such order is required in the interests of the security of the State, friendly rela- tions with foreign States or public 0T'd£!r or for preventing irtci-temenr to the commission of any o_ﬁ'ence'."

Section 28 Section 23 of the principal Act shall be re-numbered as sub-section (1) thereof, and after subsection (1) as so re- numbered, the following subsection shall be inserted, namely:----

"('2.) Sizbgect to such conditions: as the Central Government may by rule, prescribe, the Ce-rttrctl Gov- ernment shall be liable to pay compensation, not cac- ceedtng ﬁfty 'rupees, to the sender of a registered post- al article for the loss of the postal__article or its con- tents, or for any damage caused to it in course of trans- mission by post:

reads as follows :----

" 5B. Principles for guidance in cernfyirg ﬁlm.e.--(r_'J A ﬁlm shall not be certiﬁed for public exhibition if, in the opinion of the autl1oriry_ competent to grant the certiﬁcate, the ﬁlm or any part of it is against the Interest of the security of the State, friendly relations with foncign States, public order. decency or morality, or involves defamation or contempt of court or ic likely to incite the commission of any offence."

2. It is not necessary to mention " restrictions", as in section 33.

CcoTxTme scctiorn7iV5B (1), Cinematograplr Act, 195: (37 of 1952), which ' APp_1ication to aircraft.

Time and manner of payment of mblley orders.

Provided that the compensation so payable shall in no case exceed the value of the article last or the amount o_f the damage caused."

Section 34 In section 34 of the principal Act, in the proviso, for the words "that sum has been received from the addressee"

the words "the postal article has bqen delivered to the addressee or except where the article has neither been delivered to the addressee nor returned to the sender in the original condition" shall be substituted.

Section 33 Section 33 of the principal Act shall be re-numbered as sub-section (1) thereof, and after sub--section (1) as so re- numbered, the following sub-section shall be inserted, namely:----

"(2) Where the sender has assigned, his rig ht under this section to the addressee, and gives a written inti-

mation of such assignment to the oﬂicer-in-charge of the Post Office, the compensation under sub--section (1) shall be Payable to the add'ressee.".

Section 42A (New) After section 42 of the principal Act, the section shall be inserted, narnely:--

"42A. The provisions of sections 40, 41 and 42 shall, as far as may be, apply in relation to persons in charge of air- craft departing from or arriving at any place in India as they apply in relation to maste'rs'0)° ships departing from or arriving at any p0'rt in India.''.

Section 45 ziollowin g ' In section 45 of the principal Act, in the proviso, for the words "ten rupees", the words "one hundred rupees" shall be substituted.

Section 47A (New) After section 47 of the principal Act,_the following sec- tion shall be inserted, namely:--- .

_ "47A. Money orders shall be paid at such times and '£11. such manner as the Director General may, from time to tirne, appoint'?

Section 52 In section 52 of the principal Act, for the Words "im- prisonment for a term which may extend to seven years", the words "imprisonment for life or for a term which may extend to ten years" shall be substituted.

1. Cf. S. 1: (3), section 29 (3), section 32 (3).

s. 53 , Englii-sh Act.

Section 56A (New) After section 56 of the principal Act, the following sec- tion shall be inserted, name1y:----

"55A- If any P9"'3°°""' stealing mail

(a) commits theft in respect of-- ﬂﬁcfé p°""1

(i) a -mail bag, or 'Cf. (ii) any postal article in course of transmission by post, or

(iii) any movable property out h- of a postal article in course of W01'!-'5"mi8Si0?b by post, or

(b) stops a mail with intent to rob or search the mail, he shall be punishable with imprisonment for life or for a term which may extend to ten years, or ﬁne, or both".

' Section 64 In section 64 of the principal Act, for the Words "by this Act" the Words "by or under this Act" shall be substituted. Penalty for Section 65A (New) in charge of aircraft.

After section 65 of the principal Act, the following sec- tion shall be inserted, name-ly:----

"65A. Whoever, being the person in charge of an air- craft,-

(a) fails to comply with the provisions of sec-

tion 40 read with section 42A; or

(b) without reasonable excuse, the burden of providing which shall lie on him, fails to deliver any postal article or mail bag or to comply with the directions of the oﬂlcer-in-charge of the Post g3°mP"° 3-' Oﬁice at a place of arrival. as required by section 41 5' read with section 42A, shall be punishable with ﬁne which may extend to one thousand rupees.''. , 1 Section 66 In section 66- of the principal Act, in subsection (1) ,---

(a) for the words "being either the master of a ship arriving at any port in India or anyone on board", the words "being the master of a ship or the person in charge of an aircraft arriving at any port or place in India or anyone on board" shall be substituted;

(b) for the words "port of arrival" the words "port or place of arrival" shall be substituted.

Section 69 In section 69 of the principal Act, for the word "letter" Cf. .-;_. 55 wherever it occurs, the words "postal article" shall be sub- English AC1- stituted..

Section 72A (New) _ After section 72 of the principal Act, the following section shall be inserted, namely:----

"72A. Trial of o3_'fences.-- (1) An offence under this gig-gﬁsﬁlfim Act may be tried by any court within the local limits of ' whose jurisdiction it was committed or the alleged o;f- Cf_ S_ 134 fender is arrested or is in custody or, where the oﬂence Rilwaya Aht, is in respect of a mail, mail bag, postal article, or money I390- order or any movable property sent by post, within the See_als0 local limits of whose jurisdiction the mail, mail bag, 8e<=t1°n5 1?

postal article, money order or movable property passed 3'; ('_~_8r'f,'.nim,° in the course of transmission by post. Procedure, 1898.

(2) Abetment of an offence under this Act may be tried by any court by which the offence abetted may be tried. i (3) Nothing in this section shall eﬁect the jurisdic-

tion of a court competlent'-2-3-4 to try an oﬁence under this Act by virtue of the provisions of the Code of Criminal Procedure, 1898." 5 °f 1898' Section 74 In section 74 of the principal Act,--

(i) in sub-section (3), the words "and on such pub- lication shall have effect as if enacted by this Act." shall be omitted; ..

(ii) after sub-section (3), the following sub-section shall be inserted, namely:-» "(4) Every rule made by the Central Govern- ment under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions; and, if, before the I. As to provisions applicable in ordinary cases, see sections 177 to 132, Code of Criminal Procedure, I893.

2. As to theft and misappropriation see section 18x (2) and (3), Code of Criminal Procedure, I898.

3. As to oﬁender in journey, see section :83, Code of Criminal Procedure 1893.

4 As to trial in Presidency Towns, see-. ection 184, Code of Criminal Procedure, 1898.

expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modiﬁcation in the rule or both Houses agree that the rule should not be made, the rate shall thereafter have eﬁecrt only in such modiﬁed form or be of no effect, as the case may be; so, however, that any such modiﬁcation or annulment shall be without prejudice to the validity of anything previously done under that rule.''.

APPENDIX II Norss on CLAUSES Section 1 The change is verbal} Section 2 Deﬁnition of "mail" is being added, which will be useful for the new section proposed to be inserted". The expres- sion occurs in the existing provisions also. For example, .see section 3 (cl), section 6'7, etc. Section 3 (c) It has been suggested by the Departmenti', that in ':ne definition of "delivery" should include delivery into-- (i) PO. Boxes at the post office, and (ii) private letter boxes at the addressee's premises. We have accepted the sugges- tion as to the ﬁrst point. The second is already covered by the words "at the house or o-ﬁice of the addressee", in section 3 (c).

Section 4(1) (bb) and (bbb) (New) Certain provisions are being added on the lines of the English Act, to SaV&---

(i) letters ta-ken by a person himself;

(ii) Summons etc. issued by courts, etc. The English provision is conﬁned to courts, but other oﬂicers have also to be covered, as they possess a power to issue summons, etc.).

The following comment was made" by the Department on the draft Report:--

(2) The proposed clause (bbb) to sub-section (1) of section 4 is acceptable so far as "documents issued by a Court of Justice" are concerned. The words "or other authority entitled to issue the same" may be dropped since, if such "other authority" exercise the powers of a court of justice. It is automatically covered by the words "a court of justice".

It is felt that the assumption made in the comment is not correct.

I. See the body of the Report, paragraph 8.

2. See section 56A. (proposed), regarding stealing of mail bag, etc. 3, S. No. 96 (Suggestion of the Department).

4. S. No. 168 (Commcot of the Department).

E5 _ Section 4(1) (c) This has been extended to aircraft. Section 5(1)) This has been extended to aircraft. Section 10 It has been stated by the Departmentl, that while sec- tion 10(1) gives power to make rules on certain matters, it does not give a general power to give eﬁecrt to arrange- ments made with foreign countries in respect of postal arti- cles generally. 11: has been suggested, that such a power should be given.

The suggested change appears to be unob_iectionabIe_ Necessary amendment has been proposed.

As regards registered, insured or value payable postal articles, and money orders, a suitable provision already exists in sections 56 and 46. and those articles have, there- fore, been excluded from the provision sought to be added.

Section 23 The reasons for the proposed amendment have been already stated".

Section 26 The reasons for the proposed amendment have been already stated?

Section 23 Reasons for the amendment proposed to section 28 have been already given'.

Section 33 The reasons for the change recommended in section 33 have been already explained?

Section 34 The proviso to section 34 has been amended, for reasons already stated". -

'I'- S. No. 06 {Susge<:tion of the Department).

2. See body of the Report, paragraphs 56 -72.

3. See body of the Report, paragraphs ESASE. , 359 body of the Report, paragraphs 102-104. . See body of the Report, paragraphs 105-107. . See body of the Report. paragraph 108, at seq.

8-61 M of Law ﬁsh". -Is.

Sjection 42A (New) The object of the proposed amendment is to extend the provisions of section 40, section 41 and section 42, to aircraft. Compare section 2.6 of the English Act, read with the deﬁni-

- tion of "Commander" in section 87(1) of that Act.

Section 45 In section 45, the proviso states that a postal order should not be issued for an amount in excess of ten rupees. It has been suggested} that the proviso be deleted.

The point was thus reiterated in the comment on the draft Repart3--

"It is felt that the proviso to section 45 may better be removed, altogether, as that would make for great ﬂexibility in bringin out postal orders in diiferent denominations acco 'rig, to public demand."

The comment was not accepted in toto.' It may not be desirable to delete the proviso, but the limit of Rs. 10 may be replaced by Rs. 100. (Some limit must be there, in this respect').

Necessary change is proposed.

Section 47A (New) It has been suggested by the Department5, that regard- ing delivery of Money Orders a provision should be insert- ed similar to sections 21(3), 29(3) and 32 (3). There appears to be no objection to this suggestion.

Necessary provision is proposed. Section 52 (1) Punishment under section 52 has been proposed to be increased to life imprisonment or 10 years", in view' of the gravity of the offence.

(2) Theft, (though it is also mentioned in the new sec- tion proposed for stealing mail bags, etc?) has been retain- ed in section 52, to retain its comprehensive scope.

1. S. No. 96 (Suggestion of the Depamnent).

2. S. No. 169 (Comment of the Department).

3. As to postal orders, see Rules 180A to 180E, Indian Post Oﬂice Rules, 1938.

4. Section 2: (1), English Act, leaves the maximum amount to the Post master General.

5. S. No. 96 (Suggestion of the Department) under sections 21 (3). 29 (3) and 32 (3).

6.Co1-npare section 56A (proposed) and section 57, English Act.

7. Section 56A (proposed).

Section 56A (New) Section 56A is new. It is considered that it would be desirable to have a comprehensive provision on the lines of section 52 of the English Act, authorising severe punish- ments etc. in respect of any person who steals a mail bag or postal article or anything out of the postal article, or stops the mail with intent to rob or search the mail. While the subject matter of the proposed provision is (to some extent) covered by the existing provisions, either in the Post Ofﬁce Act (e.g. section 52) , or in the Indian Penal Code, the punishment under those provisions is not suffi- ciently severe. Thus, stopping a mail, even if it falls under the sections dealing with "robbery" in the Indian Penal Codel, would not attract severe punishment. The same applies to the general offence of "theft" under the Indian Penal Code.

Necessary change has therefore been proposed. A pro- vision for ﬁne has been made, to cover cases where the offender has sustantially enriched himself. It is also con- sidered, that the ﬁne should be available as an alternative punishment to imprisonment, and the provision is framed on that basis.

Section 64 Section 64 provides that whoever, being required by this Act to make a declaration in respect of any postal article, etc. makes a false declaration shall be punishable, etc. In a Madras case", the question arose 'whether the section could be applied against a person who had made a false declaration to the effect that a V.P.P. article was being sent in execution of a bone ﬁde order received by him. Such declaration was required by tlie rules under. section 35. The Court held, that such rules should be re- garded as part of the enactment, and pointed out, that sec- tion 74(3) already provides that the rules shall have eﬁect "as if enacted by the Act."'. If seems, however, desirable to make the position clear.

Necessary amendment has been proposed. - Section 65A (New) The object of this amendment is to apply to aircraft the same provisions as are found in section 65 for ships. It is consequential on the proposed addition of a section5 applying the provisions of sections 40, 41 and 42 to persons in charge of aircraft.

1. Sections 390 to 398, Indian Penal Code.

2. Sections 378 to 382, Indian Penal Code.

3. Crown Prosecutor V. G.Kathamia Ramiafs, (I910)-----I.I..R. 33 M zdiis 511, 512, 513.

4. See also rule 95. Indian Post Office Rules, I933.

5.'_See section 42A (proposed).

Section 66 The amendment is intended to extend the provisions of the section to aircraft.

Section 6-9 The reasons for the amendment have been already explained'.

Section 78A (New) Section 78A is new. Under section 70 of the English Act, an offence under the Act can be tried (brieﬂy) by the court Within Whose jurisdiction the offence was committed or the offender is in custody or apprehend- ed, or within whose jurisdiction the postal article passed in the course of transmission by post? A similar provi- sion in our Act would be useful. The general rules re- garding local jurisdiction of Criminal Courts are contain- ed in section 17'? et seq of the Code of Criminal Proce- dure, 1898. But there are no special rules to cover the case of offences committed regarding a postal article, which, in the very nature of things, has to travel from one place to another. While~ the cases where the offender himself is in journey, would be dealt with by section 183 of the Code of Criminal Procedure, 1898, the case where the postal article passed through several jurisdictions in course of transmission would not fall under any special provision. Section 184 of the Code of Criminal Procedure, 1898 does provide (inter alia), that offences aginst a law relating to the Post Office may be inquired into or tried in a Presi- dency Town where the oﬁender and all the witnesses for the rosecution are to be found. But that section is con- ﬁned) to Presidency towns. It would be convenient to have a provision on the lines of section 70 of the English Act. Necessary changes has been proposed.

The following comment has been made3 as regards proposed section 72A. sub-section (2) (in the comment on the draft Report).

"Diiﬁculties are bound to arise in the course of actual application of the proposed section if it is to co-exist with Criminal Procedure Code and co-act. It appears to this Government that since the proposed section is a special law and by virtue of the provisions of sections 1(2) and 5(2) of the Code will prevail over the provisions of the Code, it is not necessary to go out of one's way to save the jurisdiction of courts under the Criminal Procedure Code by means of a saving clause. Sub--section (2) of the proposed section may, therefore, be omitted."

1. See the body of the Report. paragraph I22 (5)- 2_ This is in adclizion to the provisions relating to otfences"con11-nitted during journeys and offences Committed in more than one country or place--- Criminal Law Act, I826 (7 Geo. c. 64), section I3 (5)-

3. S. No. 170 (A State Government).

The comment was considered by us. In our view, it is necessary to have a savings provision. particularly because there are provisions in the Codcl under which also jurisdiction can he C'.X<:}l'f:i5'.?{i.

Section 7-1 Section ?4(3), latter half, provides that rules under the Act shall have effect as it enacted by the Act. '1: is not the practice in modern times to have such a provision In the rule--making section generally, and this part of the sub-section should be removed.

In conformity with recent legislative practice, a movi- sion required the rules to be laid before the Parliaiiiicnt with powers to modify or annul the rules, slriould be in- serted3.

Necessary change has been proposed.

With reference to section 74 as proposed. a State Gov~ ernment had, in its comment on the draft Report, statedﬁ :--

"This Government cannot agree that recent legislative practice has been to provide that Rules made by Executive authorities under a Statute must he laid before the Parlia- ment and submitted to revision and mothﬁcation. It appears to this Government that the procedure r:onten1p1at~ ed by section 23 of the General Clauses Act is far 1:-refer- able. Section '74 may, therefore, simply' provide that the rules should be framed after previous publica- tion."

Having regard. however. to well established recent legislative practice", no alteration of or addition to the draft was considered necessary.

-,__._._._,____f_.___

1. Sec sections 183 and 184, Code of Criminal Procedure, 1398 (as examples).

3, This is subiect to any recommendation vi.'l1lC:l' the Law Commission may make in oonnection with the General-In 'uses Azt, I897 on the subject of laying of rules.

3. S. No. 170 (Comment of a State Government).

4. For a recent example, see section 21, Unlawful Activities (Prevention) Act, I967 (37 of 1967).

APPENDIX III RECOMMENDATIONS IN srspscr or orasn LAWS (011 IN nsspncar or RULES UNDER THE ACT) I. Limitation Act, 1963 (35 of 1963) Two articles should be inserted in the Limitation Act, to provide a period of one year for a suit for compensation for loss of, damage to, non-delivery or delay in delivery of, postal articlesl.

11. Mail Ships Separate legislation should, if necessary, be enacted for Mail Ships, after entering into conventions?

III. Indian Telegraph Act, 1835 (13 of 1885) Section 5 of the Indian Telegraph Act, 1885, should be amended as indicated in the body of the Report', in order to bring it into line with article 19 of the Constitution.

IV. Indian Post Office Rules, 1933.

Certain amendments may be made in the Indian Post Office Rules, 1933, as indicated in the body of the Report".

I. See body of the Report, paragraphs 141-142.

2. See body of the Report, paragraph 12.

3. Sea body of the Report, paragraph 93.

4. See body of the Report, paragraph 97' and paragraph 108 (foot-note)' 'r'U 71 APPENDIX IV C017-!STITt3'!'!ON'AL ASPECTS or some SECTIONS or THE POST OFFICE Act Main section in Connected section Other analogous Constitutional the Indian 'Post in the Indian Post laws P09-itien Oﬂlce Act Oﬂice Act Section 9- It empowers the If the newspaper The section does making of rules is registered under not seem to con- as to registered the Post Office ﬂict with any pro-

HCHISPBPCIS .

(See rules I, 30, 30A and 212, Indian Post Office Rules, I933).

Section 19(1) bars the sending of ex-

plosives, danger-

ous and ﬁlthy arti-

cles, noxious subs-

tances, living ani-

mals ett_':., likely to cause injury to postal articles or to an oﬁioer of Post Ofﬁce.

Section 19(2) bars the sending by post of any arri-

cle or thing likely to injure postal ar-

ticles in course of transmission by post or any officer of the post office.

Act, it gets the pri-

vilege of conces-

sional postal rates under rule 1, Indian Post Office Rules, 1933- SectI'an 2.3(I)--Any postal article sent by post in contra-

vention of any pro-

vision of the Post Oﬁce Act may be detained, and either sent to the sender or the addressee' (char-

ging prescribed ad-

ditional postage, if necessary).

Section 23(3)(a) au-

orises opening and destruction. '.

Section _6l.' provides for punishment.' , Section 5(1) at the The restriction Indian Explosives Act, 1884 (4 of 1884) empowers the Central Govern-

ment to regulate, by rules, the trans-

portation etc. of ex-

plosives. A breach of the rules is pun- ishable under sec-

tion 5(3)(b) of that Act.

1. gas Rules 1,30, 30A, 232, Indian Post Office vision of the Con-

stitution. Rules under the section must, of course, keep themselves within the limits allowed by the sec-

- tion.' I. is reasonable. Explo-

sives in a postal article, may, when the article is stamp-

ed for defacing the postage stamps, ex-

plode the article.

This appears, there-

fore to be a reason-

able restriction, in the interests of public order, or in the public interest It, therefore, seems to be valid. Possi-

bility of its coming into conﬂict with the freedom ht' speech and expression is small.

2- Tilt POW'-'-1' 11116131' Section 23 (3)03) is in addition to destruction under rule 2:4, Post Office Rules.

3. See also discussion relating to section 2.0, on the point Wlletber bre ach of ruies is an offence.

Main section in Connected section Other analogous Constitutional the Indian 'Post in the Indian Post laws position Oﬂice Act. Oﬁice Act.

Section I9A--bars Section 23(I)-ern- 5'eL't."0n 294A-Ind- The restrictions do the sending of powers detention ian Penal Code pu- not raise any ques-

tickets, etc., relat-

ing to unauthoris-

ed lottery. '.

Section 2o--No per-

son shall send by post-

(a) any' indecent or obscene printing, photograph, litho-

graph, crc., Or any other indecent or obscene article, 9.

(5) Or any postal ar-

ticle having there-

on or on :11 cover thereof.---

of the article, plus return to the sender or addressee.

Section 23(3)-Non withstanding any-

thing in sub-section (I), any postal arti-

cle sent by post in contravention of section 19A, may "under the autho-

rity of the Post-

master General, if necessary, be open-

ed and destroyed."

[Section 2.4 does not seem to apply; see its opening words.] Section 6 I--provide s for punishment.

nishes the keeping of lottery houses, or publication of pro-

posals as to lotte-

ties.

Section 23(1)-Any (a)'Section 292-----In-

postal article sent in contravention of any provision of the Post Office Act, may be detained, and either returned to the sender, or forwarded to its destination (charg-

ing prescribed ad-

ditional postage, if necessary).

Chan Penal Code punishes publica-

tion, sale, distribu-

tion, et(:., of obs-

cone books, pam-

phlets, etc. tion of freedom of "expression" under article 1'9(I). It is, therefore, unneces-

sary to consider whether they fall under "morality" in article 19(2).

(2') The provision re-

lating 1:0 obscenity or indecent matter is justified in the interests of "decen-

cy", ot "morality"

under article 19(2) of the Constitution.

Hence, it is Valid so far as the sub-

stantnieaspectis con-

cerned.

As to the meaning of "obscenity" un- der the Indian Pe-

nal Code, see a de-

cision of the Sup-

reme Court" which upholds the validity of section 292, In-

dian Penal Code.' I. Cf. rule 44, Indian Post Oﬁice Rules, 1933.

2. A similar provision is section II of the (English) Po Oﬂice Act, 1963 discussed in Russell on Crime, (I964), Vol. 2, page I427.st

3. Rs jit Udeshi v. State, A.I.R. I965 S.C. 880.

4. See also Slmnker & 09., v. Stare .A.I.R. I the valiclit of section 3 (oz) of the Press as it related to obscene or indecent 9 55 Mad. 498, 501, paragraph. 9. upholding (Objection'_" 'Matter) Act, 1951, in so far '33 Main section in Connected section Other analogous Constitutional the Indian Post in the Indian Post laws p.TsitiOI1 Olﬁcc Act Office Act any words, marks Section 23 (2).--~Any (32) Section 11(2) (b) (if) The procedural or designs of an- officer incharge of ofthe Customs Act, part, however, re-

(i) Indecent, a Post Oﬁice or 1962 (52 of 1962) quires considera-

(ii) obscene, authorised by the empowers the Cen- tinn_ Section 23(3)

(iii) seditious, Postmaster General tral Government to (6), read with rule

(iv) scurrilous, in this behalf may prohibit the import 217 of the Indian (vs) threatening, or open any newspaper, of goods for various Post Oﬂice Rules (mj grossly oﬁ'en- book, packet or purposes, one of 1933, authgrigeg sivc, character. sample suspected to which is " rnain- (inter zuiia) the be in contravention tenance of standards destruction of the of section zoﬁa). of decency or rno- article without rality". (Further notice to the ad- procedure to be f'oI- dressee. (Contras- lowed, if the pro- section 24 of the Section :3 (3) (b). --

Notwithstanding hibition is violated, is contained in sections II2-II3 of the Customs Act).

(a) Section 98 (1) (c) of the de of Crirnina1Pr0cedu.re, I898 empowers the issue of a search warrant by a spe-

ciﬁed Magistrate, for sea1'Ch of a house etc. for ob-

scene articles, if found in the house, are to be carried to a Magistrate).

Section 3 (5) of the Dramatic Perfor-

anything contained mance Act, 1876, in sub-section (1), prohibits, (inter any postal article one), the display of sent by post in a dramatic per-

contravention of formanee likely to section 20 may be disposed of in such deprave and cor-

rupt persons pre-

manner as the sent at the perfor-

Central Govern- rnance. Thcrcis no rnent may, by rule, provision for giving direct. (See Rule notice, andthis pro- 2r7, latter half, of V1'si0r1ha5b:::nhe1d the Indian Post to be void. 1.

Ofﬁce Rules, 1933, which authorises, inter alia, destruc-

tion of the postal article).

(Section 24 does not seem to apply.) Act, which Provides for notice, etc.).

I. Section 3'."{c) of the Dramatic Performance Act, I876 was held to be void in Statg v. B Lad, A.I.R. 1956 All. 571. The point was considered, but not decided, in Harncrm V. State, A.I.R. 1958 Fun]. 343. :44.

'4"! Maia scacicu in Connected secricm Other analngcrus Ctmstiﬂltiﬂnal the Indian. 'Pas: in the Indian Past la':-vs Irﬂsitiﬂn 0 iﬁcc Ac'-' Oﬂfioc Act.

(.5) A same-aqh.at si-

milar Pmwsnnn is azmtaincd in :.ec~ tin:-n 515 Ed 'the Ci-

nenmtugraphs Act, :95z(3'3. -caf15352J.

There 15 also :1 pc-wet to forfeitccr min publications in the Young Persons (H ' Publi-

cut:ar1~:~,'=.-*.»:x,_. I956 (93 of 1955}. But both these -'Acts

-:2-utain pr-In-ciuml safcguazds. Thus, the Cinnamo-

graghs Act, 1952, sections 4 (2) and 5-C, provide. for hearing and appeal The Yazmg Far-

s-ms etc. ﬁat, 195$.

section , prcmdcs for in ici-31 re-

view by the High Court.' Sexrtion 2,3, (3) Q;

5.3:-z.*¢-aapdam macaw to aim acid-asset 1'".'n1r isaim the pan'.

zian :md¢r .ttcI:'oa-2 3,, I3-ruunalir aw. Act, 181$, [lulu 2:7, relating to pnstal articles guverncd by auction 2:73 I'll-

rhcriaea the deman-

tio:-'a_of :1b¢_am';ﬁ;

or dug:-can in may 15 13!: Past Musics: General di-

rC{.'l.'r:. The n:qLu'rc-

men: of procadtu-at rciaonablcncss has thcrcfore to be consi-

dared.' The require.-recurs of notice and judicial rcwisew haw: bten mmtdci as vary"

irnportant in such cases. to support the 1-'_a1id;ty of pro:-vi-

510115 1n:::~re2:;i12g 1, Cgmp.-a,|:e, also, sacti-on 4, Criminal Law t EEK. I951 ':23 0f 195E3- :».. ha tn sh: im'alidi1'F nf action 3. 1:) of the Drzrnaﬁ-r: Perfouznarrm, }=t:. Ac: ..I375 533 Sam \-,,_ Emu Lag }_5,1,'P,,-J955 A11. _«;71._ The paint was l:0!'lBlde:1'ed. ,but not guided, in Harrmm, v.Pws}aB, A.I.R. I953 P\1nJ24-3- _.__..

Main section in Cannected section Other analogmn Ctmslimti out the Indian Pom in 111: Indian Pt-st In-It pm-ltion Olﬁee Act Olftce Act with the funda-

mcn':al rights of freedom of speech and -expression} Apcwe: to approach the ' Co-at t-t may save the validity of such restrictions' It was held in. a very copies of it heals which was obscene could 901 be ordered by the hiagistrate, in the absence of a speciﬁc p-:7wer.('I'|:1e decision related to section 418 of the Crinxinal PrD::e-

d1.u'eIC';crd¢ as it was then in force. The pteteut sclctiort is specific on the point).

In a case under sec-

tion -at ﬁle Post Oﬂice Act,' it was held, that cocaine was not an offensive, noxiout or delete-

ricms -mthii': seetien

19. It was also ohsemd, 111:1 even if rules had been made IIJ prevent the aendimt of cocaine by post, the tending of articles by pm! in cnntm-renticn. at the rules to nude did not seem to be an oﬂeme under sec-

tion 61,. Vlhich only dealswith the send-

ins of articles in C-'-"DlJ1V'I:l1l'.'iC-n of the sterile: theme-hiss, i.I':., section: kg and

20.' 1, Cf. lam stun;-ar '.7. sm, J-'t.I.R. 1954 A1l.s62. 568. 569. parser-pl: :2. relating to sectien :5 of the Press Emergency Powctts Act, 1931. whuzh empowered the District Magistrate to restrain the printing (If newssheets.

, ..S'.3ta 'La?! . Sm: A.I.R. 1954 Born. _5os, so;-.pa1'aarat.~h:. upha1d_ing 2 valiﬁity of sereti-an 1: of the Press (obiectsenablc Matter). Act 1551 'in vat-w of thc position fox judicial review. 3' E,,1,,.g,, of India v_ Jndarma:-3,! (1331) I.L.R. 3 AH. 337. 844 (straight 3 ). 4_ section 5'3]j,§CndE -ef Crimillal Procedulve. 135-8. 5_ Emp, V. fsma1'lKJ3aFr (mm) E.L.R. 37 A11. 2'89.

Main section in Connected section Other analogous Constitutional the Indian Post in the Indian Post laws position Oﬂice Act Ofﬁee Act In one Calcutta case,;' a prosecution under section 61 of th-

Post Office Act read with section :0 for transmissiorl by post of a primed post-card contain-

ing an advertise-

ment of a patent medicine in lan-

guage of an obscene nature, was upheld and the court adopt-

ed the wellk own test :.n Queen V. Hzcklmz as to the test Cf Obscenity.

(is?) The provision as to " seditious " mat-

ter is valid. The Supreme Court interpretation of section 124A,Indian Penal Code will be applied here also so as to justify the provision in the :.I1t€1'E!it of " public order "

within article ID (I) (a) and I9 (2) of the Constitution.

(in) The provision as to "sc1'u'rilous" at-

tacks appears to be valid. It is unneces-

sary to consider here Whether the provision will be interpreted as " scurrilous " and "indecent 4 though this is not likely. 5 If such narrow.

I. Sara: Chandra Glw.-re v.Kz'ng Emperor, (I904) I.L.R. 32 Cal. 247, 243 (Am.-=e:i1 and Part IL). .

2. Queen 1:. Hicklin, (I868) L.R. 3 Q.B. 360, 371.

3. SeeKedcIr Narh v. State of Bihar, (1962,), Suppl. 2 S.C.R. 769 ; A.I.R. I962 S.C. 955-

4. Cf. P. Ramaratimam, (I964) 2 M.L.]'. 44.0 (Section 292A, Indian Penal Code---- Madras Ame11dment--upheld) (Kalasham I.). ("Indecent and Scurrilous").

5. Cf. S}:¢mkar& Co. v. State A.I.R. 1951' Mad. 491, 501 paragr ph 8 as t r' 3 ('I'). Pres! (0bjcctionabIe,Matter) Act,J195r_ ' a 0 sec Hm 7'?

Main sec1:iO1'1_ in the Indian Post Ofﬁce Act Section 2t (2)----(a) (bjaud c)--Em-

p ower t e making of rules specifying articles which may not be transmitted by post, prescrib-

ing the condition on which articles may be trans-

mitted by post, and providing for detention and disposal of articles sent in violation of such rules.

Connected section in the Indian Post Office Act Section 23 (I).--dis-

cussed above, under section 20.

Section 23 (z)--dis-

cussed above, un- der section 20.

Section 23 (3) (b)-

Discussed above under section 20.

Other _ analogous Laws.

Constitutional position il!1t€l.'p1'etaIl'J!1 is plac- ed the section is undoubtedly va-

lid.' But, even if ' is construed widely, it seems to be saved by "mo-

rality" in article 19(2).

(o) The provision re-

lated to "threaten-

ing" matter does not raise a question of freedom of " expression ".

Hence, it is not necessary to discuss the question whe-

ther the proviion may be justified in the interests of "morality" within arti:le 19 (23 of the C'3'r'JstitutiOn.3 (of) 'I'Jere is some difficulty about the word "oﬁ':nsivc""

but it seems to fall within "morality", in article 19 (2) of the C3-istitution.

The power is, no doubt, Wide. The rules may be in-

valid if they go be-

yond article 19 (2)4.

The validity of the section itsenff is however, not affect-

cd. In any case, it would be neither necessary I101' CUTI-

ven:.ent to modify the language of the sec-

tion so as to provide Lhal the rules shall comply with the Various heads men tioned in article 19.

The provision would have to be extremely cumber-

some, as it will have to deal not only with article I9 (2), but also with article 1;;

(3) (4), etc.

1. Cf. Krishna Sharma V. State A.I.R. 1952.

section 3 (o]) Press, etc., Act, 1951.

2. Compare section 503, Indian Penal Code.

Aw _ See Basu, Cozntnentary on San. 28, 30, paragraph 6, regarding the Constitution, (1965). Vol. I, pages 671-672. . The matter is discussed in Basu. Constitution of India, (1965), Val. I,page 672.

Main section in Cnnnected section Other 311111080113 -- C°n3ﬁmti-'E31 ' the Indian Post in the Indian Post Lam. Position Oﬂice Act Ofﬁce Act mu" Moreover, irnany of the rules would nevw: -come in con-

ﬂict _w1r_h article 19.

Their trlle nature and character is not to interfere with the freedom of speech at all, but _ to regulate pat:k1I:% contents etc. o postal articles, or to exclucle from ltjhc post injurious 511 5- tanc¢:s."' Section 2.3.--Sea dis-

cussion in this Appendix under sections 19, 20,

21. Sfcﬁjm 24__E};gep: (U SD for as the first and ()[hef-wigs pm- category under sec-

vided in the Act, where a postal ar-

ticle suspected to contain any of the following three categories' of goods, namely.

(:1) any goods of which the import by post is pro-

hibited hy or;

under any enact-

ment for the time being in force, or

(b) any goods _ of which___m:nsmassEan by post is pro-

hibited by 0|:

under any enact-

ment etc. or Il.0[l2:].iR concerned, the validity of the section is linked up with the other tnactrncnt (such.

as the Imports and Expo:-is Conn-0], etc., Act or the Customs Act), un- der which imp-ort:is prohibited. The procedure givei. in section 24 is also a fa.irl;;-' reasonable one, and prime facie, therefore, the provisions of the section as to this category would not raise M13' serious constitutional di-

lﬁcinity, I. See Rules 8 to 43, and 44 to 46, Indian Post Ofﬁce Rules? 1933-

2. Cf. discussion in Hatmdord Dd V. U:-um Bf indict, A-I-K 195-0 3:C- 554:

554.» P3I'3E1'3Ph 20-

q. This is not a reproduction of the language of the section, but an analysis.

Main section in the Indian Post Oﬂioe Act Connected section in the Indian Post Uther analogous Laws Cc-nsatitutional pas it ion (:3) anything iiable to duty, is re-

ceived for de-

livery B1: 2 Post Diﬁoe, 21 notice is to be sent to the addressee "invit-

ing him to attend "

Within 2 speciﬁed time. The postal article is then opened and cite-

mined (before witnesses if so dixemed by the Director General), and then deliver-

ed 10 the addres-

see, unless re-

quired for -the

1) se of any f 1- proceed-

ing under the law.

(I ) 'I'hes-2 remarks also apply to the second categﬂtjy of gaods, i.e., seeds who-se transmission 'by post is prohibited under 311? enactment.

(iii) The third catc-.

gcry, i.e., "any-

' Liablcto duty", must be conﬁned to goods on which 9.

duty is lawfully levi-

able ,; and, ihcrefcre, (though the section does not say so), action can be 'taken in rtspcct of this category of goods only where the duty is lcvialbie under some other law. For this reason, the validity of the sec-

tion in respect of this catesoxy need not be independent-

13-' examined. The prucedure is also fairly reasonable.

NOTE.----E ection 24 can, possibly, apply also to goods the tre.11smj::sion where-

of is prahibited by an Order Under sec-

tion 1.1.4 of the Code of Criminal. Proce-

dure---(assurm'ng that section 144 can be lawfully used for that put-

pOSC}.1 It is, how-

ever, unnecessary to consider the aspect for the pun pose Of cevision Of the Post Oﬁ-lee Act.

I. 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._., A.I.R. I5-42 L311. 171, I72 (F.B_), {Tribiine Case}.

(ii) In re Ardeskir, A.I.R. 19.1.0 Born. 42, 43. (ii?) Balm Lu! v. State, {I961} 3 S.C.R. 423 ; A.I.R.I96IS.C. 884.

Main section in the Indian Post Office Act Connected section in the Indian Post Other analogous Constitutional position Section 24A.--Em-

powers an ofﬁeer of the Post Ofﬁce empowered by the Central Govern-

ment to deliver to the Customs authority any postal article re-

ceived from be-

yond India and suspected to con-

tain anything lia-

ble to duty to a Customs authority speciﬁed in the Central Govern-

ment's order. Fur-

ther action is to be taken by such Customs authority in accordance with the Customs Act, or other law.

Articles rent in am-

traoenrion of Im-

port and Export (Control) Act, I947 or the Customs Act, Section 25.--

Empowers an oﬂicer of the post oﬂice empowered by the Central Government in this behalf, to search for anv goods in course of transmission by post, being goods whose export or import is banned or restricted under the Customs Act or other law. The goods are to be delivered to an officer appointed by the Central Government, who may dispose of the goods in such manner.

This is linked up with the Customs Act; or other rele-

vant law, which imposes the duty.

The power can be exercised by an oili-

eer of the Post Oﬂ°..ce empowered by the Central Government, and is eorﬁned to articles received from beyond the limits of Inclia, and suspected to contain anything liable to duty. Its validity in this context need not therefore. be exa-

mined minutely. It is not likely, in practice, to inter-

fere with the free-

dom of speech, and so far as the other rights guaranteed bythe Constitution are concerned, the provision seems to he a reasonable restriction in the public interest.

(r)'1"he section is connected with the restrictions under the Import and Ex-

port (Control) Act, 194'? or under sec-

tion 11. Customs Act. 1962 or similar laxvs. Most of these are within the ambit of the words.

-in the interest of general public ' used in article 19 (6) of the Constitution. In case the restrictions imposed in those other Acts are themselves held to be void, then sec-

tion z5 of the Post Oﬂ-'tee Act will be void in relation to those restrictions.

Its validity need not be indepen-

dently considered.

3!.-

Mlain section in the Indian Post Office Act Connected sec ion in the Indian oat Oﬂioe Act 01 her analogmas Laws C.0I1$_titllt'iOIlai position as the Central Gevemment nuy digeet. "In cer-

rying out im sttch search sue officer of the post office may open ni-

unfasten, or cause to be opened or unfastened any newspaper or my bpoks. pattern or spmplc packet in course of truns-

mlssion by post."

Section z6.---Em-

the Gov-

ment or an 1i'I.lt.hn-rised ofﬁcer to Utdejt to inter-

cept_'etc. postal articles in a pub-

lic ernerg-cncy or for public safety or tranquility There is a wider prnvisinn for in-

terception in rule 23, Defence of India Rules, 1962.

(2) The last sentence nf this section does aruthorise the open-

ing of many postal articles, but not letters. Hence, in practice. its coming into cortfhct with the freedom of speech is not likely.

(13 Intcrcefition of letters under sec-

tihn :26 1_n' ht_con-

flier -with t free-

dom of expression, under article 19 (1) (al of the CDnstitl.1- tion.

(ii) Imercepticn and destruction 0 :' V.P.P. ' artice might conflict with the s_e-nde.r's free-

dnm nf 1 property, under article ISIII) (3) 'of the Constitu-

ticm. ' ' (t':'t'} Interception and destruction of arti-

ales'.-31ndered'b:.r post and already paid for by the addressee might conﬂict with the. atldresaee's right to property, under_ article' 19 (:I)§.t):nfthe Donati-

tuucm. If the anti-

cleu are not-paid for, such -interception etc. might affect the sender': similar right.

The last two kinds of conflicts, however would be rare, in View of the circums-

tances: in which the order under section 26 would be passed, i.e-. public emer-

gency or public-

9----61 Law 32- 'I Main section in jconnected section Other analogous Constitutional the Jndran Post In the Indian Post Laws position Ofﬁce Act Gﬁiee Act ' safety, etc. There-

fore, only the ﬁrs:

kind of conflict with the Constitu1ionre-

quired to be con-

sidened. It has been separately dis-

cussed'.

Secrionzg {1}.----Where (a) In so far as the an article is recciv- section a£'fc::ts the ed from a place sendes he will be in :1 beyond India, foreign country. hearinga used or I'IE1'lC>e no question ﬁctitious stamp, the of fundamental ofﬁcer incharge of rights arises. the Post Oﬁice shall send a nﬁtiee {b} In an far as the to the addressee to sectin-n aﬂects the come to take the addressee, the posi- delivery. tion is. this '.-

Saction 2-7 (2.}.-- If the addressee ap-

pears and agrees _ to make ltnoiwn the same of the sender and to deliver the ﬁcti- ' tious stamp and the part oontain-

ing the address, article shall be de-

livered to him.

Secrwn 2') (3).»~If the addressee ab-

sente himself, or if he appearsand refuses to make .

|r.m'Jw1:I the name of the sender or refuses 'to deliver the part of article cbntaizﬁng the ﬁc-

titious stamp, the article shall not be deliver tohim aml will be dis-

posed of as the Central Govern-

ment may direct.

The addresses has two fundamental rights with regard to inch articles, name-

5? 3-

1. See detailed note relating to section 26.

Main section in Gonna-ctadisection Other analognus Constitutional the Indian Post in the Indian post Laws D0='-itioﬂ Ofﬁce Act . Oﬂice Act (5) frtedom of speech and ex-

pression, [which includes, thv:

right to seek and rec:-:'*z:e ideas and informa-

tion, thwugh any medium) ;

(ii) Iight to pm-

peny.---1'.f the addressee has pre-paid the price for the article, or if an ar1'.i1::lc belong-

ing: to him is sent back by Post. brr. say. a repairer) ;

At ﬁrst sight, the restriction envisaged by section 27 (3) H195' appear to he violative of the Constitution, on the ground that the .penalt-3' qua the addressce has no heating' to or rela-

tion with any crimc of the person pena--

lis=»d{t11e addres-

see).

"The sén-der (or his scﬁant) or sqme 0:113 person n:_t_a.y be e guilty party, and they are not the reprcsclitatives. - or agents of the ad-

drcssee. ' But the answer is, that the crime is with regard to jog retgn ponfage, an to chad: it or to punish it, this coursc is necessary, as it would be diﬂicultto trace the actual offender.

..j_ B-1 M,IIiI1 section in the Indian Post Oﬁﬁce Act Connected section in the Indian Post Oiﬁce Pitt Other a'naIn-go-us Laws Cortsititutiona] "position Sfi-Et:'on 27 (B(1) (:2) Section 37B (2.).-

-elnpowers an em-

oer of the Post Ofﬁce authorised by the Post Mas-

> ter General to detain any postal 'IrtidE suspected to contain my newspaper, book, or document, can-

'tainiII.|I seditious matter .{:'.e., matter punishable under . section 1243-, In-

-- than Penal Oode).

Sectim 27B (t)(Iz).--

empowers such.

«Beer to detain.

any news user at deﬁned hi' can Pgsqs, etc.:-in "I 5 P otherwise tlnn in nonfdrmity with the rules iﬂiﬂ down in that Act.

Notice to be given to the addressee.

Section 2.715' (3). --

Order passed by State Government after notice sub-

ject to review by the High Court.

'Further, the penalty by way of detention of the article and subsequent disposal, in such manner as may be directed by tke Central ("Pattern-

mern, is imposed only on refusal of the addressee to make known the address and name of the sender, etc. Tl:|e restriction, therefore. appears to he reasonable, and in the public interest.

(2') Section 9911, CDde_SacI¢'cn 2.7B.---3') De-

of Curninal oedure, I898, powers the State Government to seize any document or newspaper or book as deﬁned in the Press and Re-

gisunrtion of Books Pro-

em-

tention of seditious articles will not vio-

late the Constiru tion as such action-

will be in the in-

terest of the security of the State or pub-

lic order.

Act, 1867, if it is (if) The Government's seditious or pro-

motes hatred, etc. or hurts religious feeling"

order is not ﬁnal, but can be judicially reviewed by the High Court. Hence, procedural validity is satisﬁed.

(ii) Under section4 of the Young Per-

sons fHatmfuiPub-

lications) Act, 1956 93 of 1968).

tam: Government is empowered to declare any publi-

cation as likely to 35 Main section in Connected sec,-tion Other analogous - the Indian Post in the Indian Post Laws Ofﬁce Act Ofﬁce Act t. Inre G. Alatitzmfm', A..I.R. I957 Mﬂ(i- 427- Constituional pics itinn corrupt young per-

sons and incite them to commit violence or offence, and to order for-

feiture of every copy. This Order is open to judicial review by the High Court, on the appli-

cationof any person interestccl in the forfeited anicle.

{1':.'1')As Iegards the Press and Regis-

tration of Books Act, IE67, the rela-

tive provision in section 27B of the Post Oﬂice Act is linked up with that Act of:t8-67. It may also be added, that it has beefl held that the Act of 1867, is not violative of article 19 (1jI(a) of the Constitution, as it does ﬂﬂ-t, in fact-

plaoe any more ras-

i:r1't:t1'm: than is ne-

oessary for registra-

tion. The Object of registration under the I367 Act is merely to obtain z'rtfom:ai't'on about the press and their publications'. The 1867 Act was not intcntlctl to estab-

lish control over printing presses and newspapers, but to regulate printing presses and news-

papers and to pre-

serve copies". In any case, the validi-

ty of S'l 27B, Post Ofﬁce Act, need not be independent-

ly examined.

a. Mrs. Taramcm' v.Add1. D:':m'::: Magistrate Kuxch A.I.R. I964 Gujarat 278, 280.

Main section in Connected section Other analogous Constitutional the Indian Post in the Indian Post we position Office Act Office Act (in) Sections 27B and 2.70 of the Post Oﬁice Act, ina way, only aid the law given in section 99A of Criminal Pto-

cedure Code' by providing for detain-

ing the objection-

able article, and sending it to the oﬁioer appointed by the State Govern-

ment. It may be noted, that section 99A, Crirnina1Pro-

cc_d1.u'e Code is wider, as it covers also artilces which are violative of sec-

tions 153A and 295A of the Indian Penal Code.

I. As to the validity of section 99A, Cr. P. C. see N. Veerabrahman v. State, A.I.R. 1959 Andhra Pradesh 512, 576, paragraph 13 (Provision for iudicial corrective relied on for maintaining the validity).

APPENDIX V DETAILED more on SECTION 26, Posr OFFICE Acr Section 26 of the Indian Post Office Act raises certain questions of sires, as it empowers the Government, e1::':. to intercept, detain or dispose of any postal attic;-s or :Las-s of postal articles, etc._. in a "public emergency" or for pre- serving public safety or tranquillity.

The validity of the section has to be examined with reference to the freedom of speech and expression guar- anteed by article 19(1)1fa} of the Constitution.

Article 1E}(l)(a) and Article 19(2), as they, now stand, run as £ollows:--

"IQ. (1) All citizens shall have the right--- _ otecnonoi

(a) to freeclorn of" speech and expression;" cmainfighw (2) Nothing in sub-clause (a) of clause (1) shaiiﬁﬁfgﬁﬁﬁf aﬁect the operation, of any existing law, or prevent speec'n,ctc.

the State from making any law, in so far as such law irnposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests to the sovereignity and integrity of India', the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence."

It the object of the right to ireeclc-rr. of speech is to prevent public authorities from assuming oontrol of the minds of the people, then it is c;-it-vi-:-L23 that section 26 comes into coniiict with the right Freedom of s1:-ee:h must imply freedom of eﬁectively conveying one-'s viewsg. The interception of a letter means a break in this freedom. as it hampers the tree and uninhibited communication of onc"s views. Therefore, section 26 does impose a restric- tion on the freedom guaranteed by article 19{l}(a) of the Constitution.

Now. in ordinary times, precensorship is incompatible with the freedom of expression}; at least unless there are reasonable safeguards'. The power of interception is ana- logous to censorship. as it permits a speciﬁed authority ':0 determine what shall or shall not 'pass through the mails and, therefore, requires strong justiﬁcation for its validity. That validity can be derived, if at all, only from article 19(2), which enumerates the perrnissﬂole sources of res» triction.

1. See the Cgsrituzion {Sixteenth Amendment) Act, 1963.

2. Cf. Rams}: Tfzappar v. The Stars A.I.R. 1950 s.(:. :24, which was referred to by the Privy Council in Oliver' v. Butx:{gu'eg(1966) IA]?

- E.R_ 459('P.C_.) (Case from Malta). (1966), 3 WLR 310 5 320.

3. -C12 .E3:'§1'eF!}\7e!1Ji'f)ﬂP6f.5 V. E-"mt-:12 of I'.d!'o, .-=..I.R. I953 3.6. 573.

4. Virendrarw. Siam, ALR. 1957 EC.' 896: '9CI. paragraph T2...' E8 The next question is, whether the restriction is saved by article 19(2), that is to say, whether the restriction is-

[i) reasonable, and

(ii) in the interest of one or more -of the permis- sible heads speciﬁed in article 19 (2).

In coming to a decision on this question, one has to bear in mind several points, chief amongst them being---

(i), the situation in which the power of intercep- tion can be exercised;

(ii) the authorities by whom the power can be exercised;

(iii) the articles in respect of which it can be exercised;

(iv) the nature and effect of the power; and

(iv) the procedure for the exercise of the power. As regards the situation, it is described in the section rescue of "public e:ne:'genc_I,"' or "public safety or tran- quillity". The iormer--"pu'b1ic emergency"--t-till require detailed treatment.

Regarding the authority, the Central Government or the --

State Government or any oﬁicer specialty authorised by either of "them. can exercise this power by a written order. There is, thus, delegation, no doubt, but that by itself does not appear to be a fatal defect. The provision for delega- tion does not seem to be unreasonable in itseii. The pro- visions of the section are attracted only in an emergency, and the initial judge of the emergency must, often, be an oﬂicer of the localityi-9.

As regards articles, any postal article or class or des- criptio-n of postal articles in course of transmission by post can be interfered with. This certainly includes letters and newspapers and books.

As regards the nature and eﬁect of the order, the arti- cles can be---(i) intercepted, (ii) detained, or {iii} disposed of in such manner as the authority concerned may direct.

As regards procedure, there is no provision for judicial review. apparently because the power is to be exercised in a public emergency or in the interest of the plllalic safety or tranquiiliiga.

Bearing in mind this analysis of the section, we may proceed to examine in detail the substantive as well as pro- cedural aspects of the section.

I. Cjf. Babufai v. The State {root}, 3 3.03. 4.23 ; A..[.'R. 195: 8.6. 884, 589, paragraph 22.

2.. Sat also Veere:-mdra v. The Sum .A.I.-R. :95-1 S.C. £96.

The procedural aspect may be disposed of first. The section does not lay down any hearing, etc}, but that not be conclusive as regards the validity of an for an enter- gen-e3' 1tiw3. ln judging the reasonableness of a restriction, the extent and urgency of the evil sought to be remedﬂkr-d thereby, disproportion of the imposition, and the 1>reva11- ing condition at the time, etc., have all to be considered".

We may now consider the substantive aspects.

In this connection, the situation in which, the power under section 26 can be exercised is described as one of "public emergency" and "public safety or tranquillity". These will have to justify themselves.

It is from this angle that the matter is to be viewed. and, though in a substantial number of cases, the power may not be abused, yet if it is capable of being exercifed in a. situation not expressly permitted by the Constitution, it may require modiﬁcation. We have, therefore, to con- sider in detail whether the power is conﬁned to the permis- sible heads.

Before the First Amendment to the Constitution, under article 19 (2), the only permissible head of restriction on the freedom of speech and expression (so far as is rele- vant for the present purpose) was "security of the State". In Romesh Thain:-a.r V. State of Madras', the ban imposed by the Government of Madras under section 9 (1-A) of the Madras Maintenance of Public Order Act, 1949, on the entry and circulation in the State of a journal called the "Cross Roads" was declared to be invalided, on the ground that the Constitution had placed in a distinct category those offences against public order which aimed at undermining the security of the State or overthrowing it, and made their prevention the justiﬁcati-on for legislative abridgement of freedom of speech and expression. Nothing less than endangering the foundation of the State or threatening its overthrow could justify curtailment of the right to ﬂ'EE-.- dom of speech and expression. The Supreme Court fur- ther observed, "The Constitution thus requires a line to be drawn in the ﬁeld of public order or tranquillity, mark- ing off, more or less roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the securitgr of the State and the relatively minor breaches of peace of purely loca-1 sign.i~ ﬁcance, treating for this purpose the difference in degree to be a difference in kind."

I. Bum. Commentary on the Constitution, (1965), Vol. :, page 57;,

2. Cf. Bahia? v. The State, (1961), 3 S.C.R. 423 ; h.I.B.. 1961 S.('.. 83.4, 339, paragraph 22

3. Cf. State of Madras v. V. G. Ram, A.l.'R. 1952 S.C. 196.

4. Ramssh Timrpar v. State of Madras, (I950) S.C.R. 594; A..I.R. I95:

S.C. 124,, 123, paragraph 10.

. Therefore, according to this decision "puhi.i_c order" is 'to be classiﬁed. into two categc-1'ies~---one Inanor and the anther minor, that is to sa1i'----

(a) major oﬁenc-es afﬁecting the security or the State; and

(b) minor breaches of peace of local signiﬁcance.

This decision was followed in B-rij Bhusho-n's case'.

It is well-lmown, that by the First Amendment to the Constitution of India, minor categories of public order were brought in. After the First Amendment, the Supreme Court examined the scope of article 19(2) in 1952, and upheld the validity of section. Ml} (a) of the lndian Press {Emergency Powers) Act, 1931, relating to Words etc. 'which incite to, etc, the commission of any offence of mur- der or ,a cognizable oﬁence involving violenceg.

Thereafter, in 1960, Mr. Justice Subba Ran [as he was then) had occasion to interpret the expression "public order". While examining the provisions of the UP. Special Powers Act, 1932-, he observed. "But in India under Article 19 (2) this wide concept of public order is split under dif- ferent heads. It enables the imposition of reasonable res- trictions on the exercise of the right to freedom of speech and expression in the interest of the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, defamation' «or incitement to an olfence. All the grounds mentioned therein can be brought under the general Lieaﬂ 'public

-order' in its most comprehensive sense. But the juxta- position of the different grounds indicate that though sometimes they tent} to overlap they must he ordinarily 'intended to exclude each other. Public order is something demarcated from the others. In that limiter! sense, parti-

cularly in view of the history of the amendment, it can be '

-postulated that public order -is s-ynonymous with public "peace, safety and tmnqiLillity"."

A later decision of the Supreme Court reiterates this view'.

It is true, that the expression "in the interest of" in article l'3(2) is wider than the expression "for the main- tenance of", so that a law which is not designed directly to protect the general public against any particular evil may be valid if it is enacted in the interest of the public order or the general public, as the case may be?

1. Brij Bhmt-as v- .5'}u2i.'}o tjnﬂeﬂsx', 21.1.12. 5959 so. :29.

2. State of Biker v. Slmiljc Bela, 63.1.31. 1952 S.C. 3:29.

3-. 'I?:.-: Supsrirrzemis-at, Central Prism?! 1'. Dr. Rom Mcnolm-r Luz-f:u'n, A.1'.R. 1960 SL'. 633, 639.

4. O. K. Ghost v. _7a.s.vpJ:, A.I.R. I963 S.C. 812, 314, 5:15. paragraph m._ 5; Cf. Ram-iji: Lat v. State of U.P., A.l.R,1o57 S,C'.. 520, 62.2, paragraph 7, referring 'to Dell: Sm-an v. SHIDTE, A.l'.R. I954 Fame 254.

'T 91 This ampliﬁcation, however, does not "ignore-the neces- sity for an intimate connection between the Act and the public order sought to be maintained by the Act1 ."

As was observed by the Supreme Court", "The limita- tation imposed in the interest of public order, to be a rea- sonable restriction, should be one which has a proarrrmate connection or nexus with public order, but not one far- fetched, hypothetical or problematical or too remote in the chain of its relation with the public order".

In short, the serious and grave forms of public disorder

- --which are calculated to endanger the security of the State fall under "security of State", and the relatively minor breaches of the peace of purely local signiﬁcance fall under "public order". Therefore, national upheavals, ' such as revolutions, civil strikes, and war, may be covered by "security of the State", and local disorders may be covered by "public order";

In a recent case before the Supreme Court", the meaning of the expression "maintenance of public order" in rule 30 (1) (b) of the Defence of India Rules, 1962, and section 3 of the Defence of India Act, 1962, was considered in de-

-.tail, and the expression "maintenance of law and order"

(which was employed in the detention order in issue in that case) Was also considered. According to the majority view", "public order" was narrower than "maintenance of law and order". According to the analysis contained in one of the judgments', there are three concentric circles. The expression "law and order" represents the largest cir- cle, Within which is the next circle representing "public:

order", and the smallest circle represents "security of the State." By using the expression "maintenance of law and order", the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules.

Now, the expression "public emergency" in section 26, "Post Ofﬁce Act, appears in addition to the words "public safety or tranquillity", which also are mentioned in the section. It is therefore, obviously intended for cases other than those covered by public safety or tranquillity----in I. Superintendent, Central Prison v. Dr. Ram Mcmohar Labia, A.I.R I960 S.C. 633.

2. Superinrmdent', Central I-"riser: v. Dr. Ram Manohdr Lohia, A.I.R. I960 S.C. 633, 639.

3. Cf. discussion in the iudgment of Patanjali Sastri J. in Romesh Tlzrippar v. State of Madras, (I950) S.C.R. 594, 601 ; A.I.R. I950 S.C. I24.

4. Basu, Commentary onfthe Constitution (1965) Vol. 1, page 671, assumes that section 25 would be covered by " in the interst of public order ".

5. Dr. Ram Manahar Lohia ':7. State of Bikar, A.I.R. 1966 S.C. 740, 745, 758, 761, paragraphs 8, 52 and 66 (May, I966).

6. Sarkar, Hidayatullah and Bachawat I].

'7. Judgment of Hidayatullah I. (on behalf of himself and Bachn"

Wat .) which possession was takenﬁ.

Other _W.0r.Cls,. for a situation other than local disorder. It takes in national upheavals which affect the security of the State. But, apparently, it also takes, in emergencies of 3 Puhhc nature which might have nothing to do with the Security Of the State (or with public order), and it is here that it seems to go beyond the Constitution.

"Emergency", it may be noted, may be of an economic character also'.

There is another aspect of the matter. The class of arti- cles which ;can be intercepted is not linked up with "pub- lic order", etc., so that the section sweeps within its ambit even activities constituting a legitimate exercise of the freedom of speech". There is no principle to guide the officer concer'ned----except that of 'emergency" etc. which itself goes beyond the Constitution,--with the result that the restriction may not be regarded as reasonable'.

We may examine in detail the meaning of the expres- sion "emergency" as explained in some decisions".

It has been observed, that the word "emergency" in section 2(1) (a) of the Compensation (Defence) Act, 1939 (2 & 3 Geo. 6 c. 75), may require diﬁerent meamings to be attributed to lit', having regard to the power in right of The expression "emergenc ", as used in Admiralty directions relating to Vessels in convoy, means the sudden occurrence of facts causing an apprehension of danger or difficulty'.

The expression "present emergency" in the Rating and Valuation (Postponement of Valuations) Act, 1940 (3 & 4 Geo. 6, c. 12), section 1(4), means the World War, 1939- 1945, and its concomittmts, such as the blackout".

1. As to economic emergencies, sec Helvering V- D6055, (I937)_30I U-5- 619 ; St L. Ed. I307, and contrast A.G. for Canada v. A.G. for Ontario, (1937) A.C. 355 (1=.c.). .

2. See generally,-

(:'J Virendra v. State, A.I.R. 1957 S.C. 896.

(ii) Hamdaral case, A..I.R. 1960 SC. 554 (decision as to of the Drugs, etc., Act).

3. Cf. Lovell v. Grtiﬂin, (1938), 308 U.S. 444, and Basu, Commentary on the Constitution, (1965): VOL I: Page 551-

4. Cf. R. M. Seskadn' v. Dist. Mzmicipaliry, Tartfm, A-T-It 1954 SC.

747. 748, paragraph 4- _ I .

5. For legislative deﬁnitions, see Strorud1's Judicial Dictionary (1952), Vol. 2, page 940.

.5, (1943) I A11_E.R. 672, 675, approved on other g1'DU11Cl (1944) I All. ER. 60.

'7. The Larehbank, (1943) 11.0. 299-

8. Conservative Club v. Westminster Assessment Committee, (1943) I A11_ E_R_ m4, 105, affirmed in Wenmimter Assessment Committee v. Gunter-

votive Club, (1944) A.C. 55- section 8 93 Thus, "emergencies" may be of various types, that is to say, not only of imminent War or a rebellion or internal subversion, but also natural catastrophes, and economic «emergencies. The last mentioned (economic emergencies)

-do not necessarily fall under "security of the State".

In England, under the Emergency Powers Act, 19202, an

-emergency can be declared by the Crown whenever it appears that the supply and distribution of food, water, fuel or light or the means of commotion or generally the essentials of life of the community or any substantial por- tion of it are in danger etc? The Act was invoked at the time of the coal strike of 1921, the threatened strike in "1924 and the general strike in 1926'.

Similar provision i's found in the emergency laws of other countries, for example. in the Emergency Powers < "Ordinance of Northern Rhodesia5.

In a Lahore case', the court followed the dictionary 'meaning of the word "emergency" as given in Webster's Dictionary, which is. "An unforeseen occurrence or com- bination of circumstances which calls for immediate action .or remedy". The court observed. that an emergency may 'result from an unforeseen combination of circumstances, and that this combination may not take place all at once,

-but gradually. An immediate action may be rendered necessary when the culminating point is reached.

As to Ordinances under the Indian Constitution or 'under the Government of India Act. 1935. undermentioned

-cases?-3-9 may' be seen.

I. For materials as to' emergency, see-

(:') Holland, "Emergency Legislation in the Commonwealth", (I950 13 Current Legal Problems 148;

(it) Note "Civil Liberties in Great Britain and Canada during the War", Vol. 35, Hartrard Law Review rooé. .

-(iii) M. C. Setalvad, "War and Civil Liberties" (1946).

(iv) "The War and the Constitution", Vol. 4, Modern Law Review S2.

(0) Jennings, "Rule of Law in Total War", so Yale Law Jour- nal 365. '

(vi) Rossiter, Constitutional Dictatorship, page 177.

2. Emergency Powers Act, 1920 (10 & II Geo. 5, c. 55;.

3. See also the Emergency Powers (Defence) Act, 1939.

4. See also the orders passed in 1966. _

5. Section 2(1), Emergency Powers Ordinance of Northern Rho- desia, discussed in (1960) I3' Current Legal Problems 148, 162.

6. Des Raj v. Em;-., A.I.R. I930 Lah. 781, 789 (regarding the Lahore 'Conspiracy Case Ordinance I930) (decision under section 72 of the Govern-

ment of India Act, under which, in cases of "erncrgencv", the Governor- Gcncral could make Ordinances for the peace and good governrncnt .of India.)

7. icon P1-osanna v. Province of West Bengal, A.I.R. 1949 Cal. I (F.B.).

8. Buy). v. Sibmzh, A.I.R. I945 P.C. 156.

-,9. , A.I.R. 15:50 Re. 59.

94' ' Section.f26,thus. in View of the wide meaning of "army. E31163"; may Operate so as to abridge the freedom of Sﬁeeﬁh ant} expression for a purpose not authorised by article 19 (2). and is, 1:0 that extent, likely to ccmﬂict with the Cnnstituticm. ' There are no decisions as to the validit '- ' I 3" of section 26.

1% a Supreme Court case, the validity of the pre-cenggr- 5 1P 011 T1EWSP§l1JEI's under section 144, Cﬁminai Procedure Cafie Wes constdererl, but the exact issue that is - now"

being dlscussed was not dealt with.

The next, question is whether the section should be- am-ende__d c-r. this point. It is true, that -one principle of construction of statutes 'is, that if the impugned provisions of a law can come within the constitutional powers at the Legisiatune by adopting one view of the words of the im- pugned section or Act, the court will take that View of the section and ]-.'unit its application accordingly, in preference to a View which woultl make it unconstitutional on en- other interpretation of the words in questionz-3-*.

It is possible, that, on this principle, the scope of the expression "public emergency" in sec-iian 26(1) will be narrowed down by the courts, andizf that is done, the vali- dity oi the section (in the present_co=ntext) may be saved.

Since, however, opnortunity has now arisen for revising the Act, it seems desirable that the matter be put beyond cont:-overs , particularly in view of the rather wide meaning at (-3 expression *'po.h1ic emergency".

a. smear 7. Stats, men 3 s.c:.n. 4:3; A.I.R.' [grit '$89. 7-

2. Se: in re Hindu Women': Rixiats to Pfﬁfitﬂy Act, fl '} P.C.R. :2 and R.M.D. Ckamarbaugu-aid v. the Uuzbn ﬁf India, V195?) 5.C- - 930: A-1 R- [937 3.12. -623, 633. _ _ .

'5.Kcda'r Nash v. State ofBiha?,'{_1915'2)_'-5'\1D'I)-3 3.83. ?69. £'k-I-'Fm I962 S.C. 5:55 {Validity of section :24.-ii, Indian Penal code, upheld).

4. And see the American authorities discussed .in the dissenting

-jxnigsrxentof Kspiur I . in Amar Nail: Bali 'V. Stare, A.I.R. I951 Punjab '18, 24 -26, paragraphs 36-46. M I

5. Examples of surf: controversies are:~ (£1 .'c'1rr<! Bites-ass' Prtis, P..I.R. :95: Par. 11. 2:. :5, paragraphs :3 ' and 133 £3.13.) Ieectiorl 4(1), Press Ernergcncy Pcrwer Act. 193} .

(iii State v. Ha:-iprasad, A.I.R. 1952 Sam. 25, :8, paragraph 6 [sec- zion 4(1) (:1), Press Emergency Powers Act, I931]-

(iii) Bhamishonksr V'. State, £'..LR. 1;»-32 Sen. 57 13.3. '[seu:'tiuI1.. 7(1) P1155 Emergency Powers Act, I931]. ' (fu) Pattamzrr 1:. Chief Presidency Jlfagirrrate, A.I.R. 1951 Med. 95::

[scctitrn 3111), Press Eanrrsmcy 'POW=r8 Act, 1931]- though the later Superne Court decisions cited -e.3. Krdar Nqth----°:nat-Le a vnlidatilig construction.

B5 The form. in which the section should be amended' has:

been considered in detail. One alternative is to limit slac- tion 26 to only two grounds, ("security of the State" and. "public orcler"). The other alternativc is to mention, in the section, all the grounds speciﬁed in article 19 (2!) '-2. On the one hand, it is 1:0-tlil-ze13r that the power under the sec- tion will be required to be exercised except in the interests of "security of the State" or "public order". On the other hand it would be better to adopt the second cltemctioe, which is wider, to cover unforeseen situations-.

Sub-section (2) of section 26 may now be considered. (3,':;'ffjf._"__"5' It provides, that if any doubt arises as to the existence of .,;,m_m._.';1da. a public iemergencyi or as to whether any act done under lion. section 26(1) was in the interest of public safety and tran- quillity, a certiﬁcate of the Central Government or of the State Government, as the case _m.ay' be, shall be conclusive proof on that point: This has the effect of totally barring judicial review.

Now, if section 26 is to be modified so as to narrow Analogous down its present widthi, then sub-section (2) loses much 151'":- of its practical utility, and should.' be omitted. Even if the -§.:'{:§°'r':p§; expression "public emergency" is retained, sub-section (S!) Act, ma cannot bar Judicial review, when a constitutional question p1'm'i§'1on arises, and shoulri be omitted on that ground also. ifldfggfécgg, There is a provision sirnilar to section 26 (1) in section 5 Act" of the Indian Telegraphs Act"---5. There does not seem to be a similar provision in the Wirless Telegrephy Act', but' there is a power under section lﬂﬁii) of that Act regard- ing conditions governing the issue of licence of wireless telegraph}; apparatus under the Act.

The section in the Indian Telegraphs Act was consider-- ed in detail by the Press Commission.

The following passages from the Press _Commission's' Report l may be quoted :--».

"H363. Indtlrn Telegraph .a=lct.----Sec-tion 5 of the Act enables Government, or any oﬁcer 5935311? ~9.111th°1'l§' ed by Government, on the occurrence of any pubh:-'_ emergency or in the interests of public safety (at) to :. C3'. section 55(1). Cinematosraeh Art. I952 (37 01' I951)-

6 Cf. also section I1(zJ(9)G')(t)CTJ3"'L Cilﬁtﬁms 1542!: 1963 {.53 "E 19 2 .

. Sec discission nelating It: aenion z§(r'y. _ Section 5 of the Indian. T-elegraphs Act, 1885 (13 Of 1335}- . Cf. section 52, Telegraph Act, 1352 [English ﬁtti-

The Indian Wireless Tclcgraphy Act, 1933 (17 of £933}-

, Press Commission of India Repiuri. (I954); Part 1, pages 406-40:? paragraphs I063 --I°7I-

-qP'Ji-l'-'L-(ii 9-Fi "Bk-9 l'?mP91'?1rF Possession of any telegraph establish- ﬁh. lnalntsined or worked by any person licensed under 9 A-C3. 31113 (5) to order 'that any messagqa or class Qf P19533385 frﬂm '_='-'13' Pﬁrson or class of persons or relat- ing to any particular subject brought for transmission by or traiistnitted or received by any telegraph shall not be intercepted or detained or shall be disclosed to Ciovernment or the oﬂlcer specially authorised. If any doubt "arises as to the existence of public emer- gency or Whether the act done is in the interest of public safety, a certiﬁcate of Government shall be con- clusive proof on the point.

lﬂti-1. In so far as the provisions of this section can come into. force only on the occurrence of any emer-

-ggncy or in the interest of public safety, they cannot said to be not in consonance with the Freedom of the Press and outside the scope of perniissible legisla-

tive 'restrictions under Article 19 (2) of the Constitu- tion.

1065. As regards the actual operation of the Act, ,1.hﬁ-Press Laws Enquiry Committee have stated as to oWs:--» ' "Our recommendation in this behalf is, there» fore, that the Central and Provincial Governments should contimiie to have the power of telegraphic interception, for use on special occasions of the occurrence of a -public -emergency or in the inte-1'- est of the public safety provided the orders of the Minister in charge are invariably --obtsined, that delegations of this power should be the 'exception rather than the rule, that delegations should be for a speciﬁed and short period and not general 'anti that clear instructions should be issued by Government to the specially authorised ofﬁceis in ordler to ensure that these powers are not abused. Sub-section (2) of section 5 makes a certiﬁcate of the Central or Provincial Government conclusive on the question about the existence of a public emergency or the needs of public safety. As a. further sate-guard against possible abuse of these powers by subordinate officers we further recom- mgend that provision should be made in the section itself, for example by the addition of Sub-section (3) that the orders passed by specialty authorised ofﬂcers of Government shall be reported to the Central or Provincial Government as the case may be in order to enable the responsible Minister to judge the proper exercise of the powers and the order passed in individual cases".

9'?

1066. This recommendation 'oft;-.he Press Laws En- .-quiry' Committee is supported by the Mar-sjhi Petra- Ice: Sangis. The Indian. Federation oi Workhng Jone- nalists have not indicated in what direction this law requires amendment. The A.I.N.E.C. have pointed out that powers under the Act have been exercised, even 'where there is no emergency, under pressure from the iovcal Executive. All the State Governments who have replied to our question on this subject have urged that

-such powers are necessary in time: of einergency and in the interest of public safety.

1067. The emerge-nay contemplated is not neces- sarily wartime emergencgnand the section in effect comtemplaies imposition of CE-nsorship on dissemina- tion of news even during peace time under certain conditions. We support the Press Laws Enquiry Comnlitiee-*5 recommendatim-15 in this behalf.

1663. Sea Customs Act, 1B'13»--5e-clzion 19 of the Sea Customs Act, 1878, enables the Central Government from time to time, by notiﬁcation in the oiiiciel gazette, to prohibit or restrict the bringing or taking by sea or by land of goods of any speciﬁed description into-, or out of, India serum any customs Irontiers. 'Ibis section is not limited in its operation to any emer- gency or in the interest of public safety. In so far therefore as it prohibits, dissemination of news, other- wise than in relation to an emergency or public safety, it appears" not to be in consonance with the Freedom of the Press of Article 19(2) of the Constitution. In ease, however, of newspapers and periodicals, which are Iiabie to forfeiture under section 9911.. of the Crimi- nai Procedure Code, or any other matter which is He- ble to aﬁect the security of the» State, this section should continue to apply. It would be anomalous to ban the production of that type of ]it.e1-s'o.u'e in this country, but giennit its import.

1339. Sections 181A to 181C authorise detention and further olisposei oi any package suspected to con-- tsio any newspaper or any document the publication of which is punishable under section I24A, Indian Penal Code. As we have aioeady stated, this section, as it stands, appears to us to be inconsistent with the Fre_e-dom of the Press and to be elm: quires of the (Zone- titution, If that 'i?'iE"J.T is accepted these sections will have to be repealed or the reference;-, to section 124.6. will have to be replaced' by references to _. the. new jegrtion 1213, Im__3ian' Penal Code, which is , suggested for enactment. - i .

I-0--46i Lew.

A 1070. Indian Post Oﬁice Act, 1898 Section 25 is contigent on the validity of section 19 of the Sea Cus- toms Aﬂt or any other similar law. The remarks on that section would also apply to section 25 o-f the Post Offices Act.

1071. Section 26(1) is on a par with section 5(1) of the Indian Telegraph Act, and our remarks under that section would also apply to this section of the Post Oﬂice Act".

The recommendations of the Press Commission may be thus summarised:--- *

(i). The Central and State Governments should continue to -have the power of telegraphic (or postal) interception for use on special occasions of the occur- rence -of a public emergency or in the interests of public safety, provided the orders of the Minister in charge- are invariably obtained;

(ii) Delegations of this power should be sparingly made;

(iii) Delegations, when made, should. be for a spe- ciﬁeﬂ and short period,'and not general;

(iv) clear instructions should be issued by the Government to specially authorised officers' in order to ensure that the power is not absued;

(v) to prevent abuse of powers by the subordinate officers, a provision should be made in the section to the effect, that the orders passed by the specially autho- rised ofﬁcers of Government shall be reported to the Central or the State Government, as the case may be, so that the responsible Minister may judge the proper exercise of the powers and the orders passed in indivi- dual cases. -

Section 5 of the Telegraph Act has not, so far been amended! A Private Member's Bill to delete section 5(1)(b) was introduced in the Lok Sabhaz.

It would appear", that it has not been possible to accept the recommendation of the Press Cornmission relating to the amendment of section 5, Telegraph Act, and section 25, Post Office Act.

1. Section 5 of the Telegraph Act has not been amended. Suitable 3C11'91'1 Can, however, be taken by making a provision in rules under scction 7(z)(b).

2. Shri Yash Pal Singh's Bill to amend the Indian 'Telegraph Act (Lok Sabha, I965). .

3. Sec Jthc statement placed on the Table of Le]: Sabha on 18th February, 1964, in to the factual position regarding implementation at the _Press C_:onmiis_,oi9n's rccomnicndaﬁons (Items 7 of the Statement-

in Emerge . It 18 an enclosure to . No. 10.6, Law Com- mission's ﬁ e No. F. 1(1)/62-L.C. 99 There is a provision for interception in rule 23 of the Defence of India Rules, 1962, 0lu°tEd below?"

":3, Power to intercept and censor postal a1'ﬁC1~'3£«'-

(1) Notwithstanding anything contained in section 2|?-

of the- Indian Post Ofﬁce Act, 1898 (6 of 1898), ani' person appointed by the Central Government to be it censor may-

(a) order that any postal article or class or desﬂﬂptian of postal articles in course of trans-~ mission by post shall be intercepted or detained 01' shall be disposed of in such manner as the censor. may direct;

(lo) open and examine the- contents of any postal article-, and delete, destroy or remove any part thereof which the censorconsiders to be pre- judicial to the public safety or interest or to the defence of India or civil defence or the efficient conduct of military operations.

"(2) Any person who delivers any postal article for transmission, either by an indirectroute or other-

wise, in such a manner as is calculated to evade .exa-- mination by a censor, shall be punishable with impri-- sonment which may extend to ﬁve years, or with ﬁne. or with both.".

The expression "public order" seems to have been used Position in in England in two Acts, namely, the Theatres Act, 18431, England- and the Public Order Act, 1936". The former Act eni- powers the Lord Chamberlain to prohibit the performance of any stage play whenever he has reason to believe that .such performance would go against good manners, decorum or the preservation of public order, The -latter Act was intended to prohibit, inter alia, the use of threatening, abusive or insulting words or behaviour in a public place, etc. with interest to provoke a breach of the peace, etc. _ In the U.S.A., "public order" has ﬁgured in certain deci- position in s10ns5-"-5-5-7. The net result of these decisions seems to be U.S.A. that the State may punish speeches and expressions of

1. Theatres Act, 1843 (6 8: 7 Vict. c. 68), section 9.

2. Public Order Act, I936 (I Edw. 8 8: I Geo. 6 c. 6).

_3- Few? V- New York, (1951) 340 U.S. 315 (Speech which violate public peace and order).

_4. Canmgell v. Carinecricut, (_1'9z_l.O) 31o U.S. 2.96, 303 (Statute of Con- necticut requiring previous pe1'1TLtSs101'l o_f $eci-etary of Public Welfare Council bef0re_s0l1c1l:1ng C0l'1[l'.lbutl01'lS for _a religious cause,---held violative of 14th and First amendments, as amounting to a previous restraint which was not needed, to deal with any clear and present danger, _ 5- Chap1ir_Iek:»' V- New Ham1>sk:'re, (I942) 3:5 U.S. 568 (Offensive, cleri- sive or annoying utterances).

6. Saia v. New York (1948) 334 U.S. 558.

7. Ternu'n1°eIlo V. City afchicaga, (I949) 337 U.S. I. (Reviews cases).

100 ' opinion tendingto incite an immediate breach or the peace or riot, regulate the places and hours of public meetings and discussions, and the use Di public streets in relation to the exercise of the right to freedom of speech, etc. "[The] offence known as breach of the peace embraces a great variety of conduct destroying or menacing public

-order and tranquillity. It includes not only violent acts and words likely to produce violance in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to ric-t.-..When clear and present danger of riot, disorder, interference with trafﬁc upon the public streets, or other immediate threat to public safety, peace and order appears, the power of the State to prevent or punish is U-b'il':iO1.I-s."1 Most of the American cases, however; do not deal with the aspect of interception of a communication. for reasons of security of the State. There are a few decisions deal- ing with previous restraint or with censorship generally.

But the rest of them relate to scandalous or obscene matters, or to the distribution of pamphlets in public parks'-3-'-5, etc., or seditious" and fraduient matters'.

1. Camtwalf V. 'Corm¢ct2'cu.:, (I940) 310 U.S. 296, 303.

2. Near v. Mirmesuza, {I931} 283 U.S. 697. ('Previous restraint upon publimtion of analieieus, scandalous and defamatory ncwspapersiﬁe. nesrramt in»:he fonn of court in.fo1-motion held violative of the First Amcnd- ment).

3. Lowell v. G11')3'I'n, (I933) 303' U.S. 444.

4. Nisrrwrko v. Maryland, (I 5:) 340 Us. 263. (Judgment of Frank- furter }. contains a smnrriary of :: previous decisions). _

5. Rockwell v. Morris, (1961) 21: NYS 2d 255 certform-y derded, (1961) 368 US. 913. -

6. U.S. v. Bnrleson, (1931) 255 U.S. 407 (seditious lllatters).

7, Damrdsm v, Read Magazine, (1948) 333 US. :73 (Fraudulent matter).

APPENDIX VI EMERGENCY PROVISIONS IN CENTRAL ACTS An illustrative List of Central Acts' conLaining'pr0vi- stone dealing with emergency (with or withoutnuse Of the expression "emergency" or "public emergency. ).

(Prepared for a study of sea-1c8t£1;t$1 26, Indian Post Office Act, _ \X_fhether the expres-

Acg: Section Gtst slon "emergency"

used (1) The Police Act, Section 15. . . Empowers the State Expression "Ema;-... 186: (5 of 1861). Government, by gency" not used. proclamation, to declare that any area is in a "dis-

turbed or danger-

ous", state. The-

reupon, additional police force can be employed and the District Magistrate may recover the costs from the in-

habitants.

(2) The Indian Tele- Section 5(1) and 5(2); Empowers the Cent- Expression "public graph Act, 1885 rat! or State G0- emergency" is used, (13 of 1885). vemﬁlent or any in section 5.

oﬂicer authorized by either,- '

(a) to take posses-

sion of a telegraph, or (in) to intercept, de-

tain or disclose to the Government etc. telegraph mess-

ages, in case of public emergency.

Governmenfs cer-

tiﬁcate as to "pub-

lic emergency" is ﬁnal.

Word "Eme e "

mcnt may, in the not used. ta my public interest di-

rect a railway to give special prefer-

ence for transport-

ing certain goods.

(3) Railways Act, Section 27A. . . Central Govern-

189o (9 of 1890). p I. The Acts are arranged chronologically.

102

Act Section Gist Whether the expres-

sion "emerger1cy"

used.

(4) The Epidemic Section 2 and 2A. .

- Disensesﬁct-,I397 (3 of 1897).

(5) 'I'he Land Aoquisi-- Section 17 tion Act, 1894 (1 of 1894).

(5) _!The Code of Section 144 Criminal Proce dint. I393 (5 0f 1898).

(7) The Indian Post Section :6 . .

Oﬂice Act, 1398 (6 of 1899).

Section 2 empowers the State Govern-- _ ment, and Section 2A empowers the Central Govern-

ment, to take (or empower any per-

son to take) mea-

sures to prevent the outbreak of a dan-

gerous epidemic, when it thinks that the ordinary provi-

sions of the law are insuﬂicient for_ the purpose. (The Central Govern-

ment's power is conﬁned to ships, etc.).

See Somawanti v.

State, A.I.R. I963 . . 151, 171, (Mudholkar -- J.'s judgment).

Empowers the speci-

fied Magistrates to pass orders for prevention of any obstruction, injury or danger to hu-

man life or pro-

pferty, etc. In cage 0 emergency, t e order may be pas-

sed ex pm-re.

Empowers the Cent-

ral Government.

State Government or any ofﬁoer spe-

cially thorised in this ehalf by the Central or State Government, to intercept, detain and dispose of any article in emergen-

Word "Emergency not used.

Expression "emer-

gency" is used in section I7. See the case law summarised in Abdul Eabbar V. Suite of West Bengal, (1966) 7:

C.W.N. 129, 137.

Word _ uEn1ergcncy"

E.1s)ed in section 144

2. .

Word "public emer-

gency-" used in tion 26.

Whether the expres-

Act Gist sion "emergency"

used.

3 3 4 (8) The Indian Works Section 6(3) .

Defence Act J 1903 (7 of I903)-

-(9) The Indian Ports Section 68B. (read Actintgos (15 of with section GSA). I90 _.

(10) The Indian Boi- Section 34(2) lers Act, 1923 (5 of 1923).

(11) The Indian Ofﬁ- Section 11(2) Act cisl Secrets 1923 (19 of 19:3).

. Empowers t"e Cent-

ral Goiernment in case of emer-

gency, to declare that all or any of the powers confer-

red by sub-section (I) may be exer-

cised any time within six months after the publica-

tion of the notice under section 3(2).

Such notiﬁcation shall be cmsc:'u.rz've proof of the emer-

gency.

Empowers the Cent-

ral Government to authorise any oi-ﬁcer to require the authorities, during the existence of emergency, to perform speciﬁed duties for carrying out any manoeuvres in connection with any scheme for the defence of the said port in the time of war.

Empowers the State Government, in case of emergency, to exempt (by general or special order in writing) any boilers or steam pipes from the ope-

ration of all or any of the provisions of the Act.

Empowers a Police Oﬂioer, not below the rank of Super-

intendent, to em-

power another pc-

lice oﬁiocr in the case of great emer-

gency or in the in-

terest of State, to (2') Word "Emer-

gency" used in sec-

tion 6(3).

(if) Also makes the notiﬁcation conclu-

sive proof of emer-

gency.

Word "Emergency"

used in section 68B.

Word "Emergency"

used] in section 34.

"Emergericy" used in section 12(2).

:44- .150! gr: -- - -: Whether the exp:-cg.

- Act. ' Section . Gist? sion "eme'rgency"

' used 1: 2 3 4 exercise the powers of search or entry, etc., which norm-

ally is conferred by the Magistrate on a Police Officer not below the rank of the ofﬁcer-in-charge of a police station under section 11(1) of the said Act. V (12)The Indian So1- Provisions of the Provides for suspen- Expression "Erners diets (Litigation) entire Act. sion. of legal IJr0- gﬂncy" not used, Act, 1925 (4 of ceedings or exocu-- Use of the Act is 1925). tion of decrees of contemplated only-

any Court of law, war, etc. where the opposite party is a soldier

---serving under special or war con-

ditions.

(13) The Indian Section 7(;), Control of local Under section 7(2), Lighthouses Act, 7(2) and Proviso. light houses. 1?:-:>v1so, a local' 1927 (27 of 1927). 11ghthou_se authority-

mar)', m "ﬁner! gooey". take suitable action (14) The Criminal Section 10 '3 E1'l1gUW61'S the State We-rd "Emergency" Law Amendment Government to not used, except in Act, 1932 (23 of make certain. oﬁ'- heudnote to section 6. 193:). meet cogruzable remporarﬂy.

(15) The Indian Air- Head note to section Section 6 empowers Wei-d_ "emergency"' craft Act, 1934 6. "Power of Cen- the-Centra1Govern-- used 111 head note to (22 of 1934). trial Government to ment, in the inte- section 6., make orders in rest of public safety emergency." or tranquillity, to . order, by a notiﬁca-

tion in the gazette, the cancellation of any license or cer-

tiﬁcate, the regula-

tion of ﬂights of aircraft, erection Of' aerodtomes etc. Disobedience of such order is punishable with three years imprisonment, or ﬁne or both.

. ___;__j,__..._,.___._

- _ Whether the expres-

Act Section Gist ston "emergcncy" . used I 2 3 4 Indian Aircraft Act Section 8 B~Headnote. Power to take rnea- "Emergency" used in 1934 {comdj "Emergency powers sures _to prevent the head note. for protecting public epidemics. health."

(16) The Indian Tariff Section 4A. . . EmergE=1'1CyP0WEI'0f Explﬁssion 'femer- Act, r934 (32 of the Central Gov- gency" used in the I934)_ et'nment,t0Jt1creasc l'l'lHZ'IglI18.l note to or levy export section 4A.

duties by notiﬁca-

tion in the Gazette, even if the article is not included in the Second Sche-

dule. However, the notiﬁcation is to be laid before the Par-

liament, if sitting, soon after, and if not sitting, within 7 days of, its re-

assembly.

17) Armed Forces Preamble, long title, Under section 2, Word. (Emergency Du- --short title, and the Central Gov- used. in preamble, ties Act, 1947 (15 section 2. ernment may (ten1- long title and short Of I947)- porarily). declare title.

any speciﬁc service to be of vital im-

portance to the community. There-

after, it is the duty of a member of the armed forces to obey a command in relation to em-

ployment in that service.

"Ernergency",_ (18) Trading with Heading, title and Seeks _to extend the Expression "emer.

the Enemy (Con- sections 2(1), 72(2). provisions of the gency" used in the. tinuanoe of provi-

Defence of India title of this Act, and sinus) Act, 1947 Rules, I939 (made in the previous Or-. (16 of 1947). under the Act of dinanoe.

I939), relating to the control of trad-

ing with states at war (and persons etc. belonging to States at war), with the Government of India, and the cus-

tody of property be-

longing to them, __.....--___.._--..__.;._______ 186 Whether the expres-

Act Section Gist sion "emergency"

used I 2 3 4 even after the ex-

piry of the Defence of India Act, 1939 and of the Emer-

gency Provisions (Continuance) Or-

dinance, 1946.

(19) The Factories Section; Empowers the State Tlreexpression ::puh- Act, 1943 (53 of _ Government _to he ernerg:ent:}' is I94g)_ exempt (by notiﬁ- used 1l'1 section 5.

canon, etc.) any 10% section 150(1);

actories Act, 1937 .(Engl1sh)].

(2.0) The Represent- Section 57 ation of the People Act, :95: (43 of 1951).

(21) Railway C.om- Title and section 3 .

panics (Emergency Provisions) Act, 1951 (51 of 1951).

factory or class of factories from all or any provisions of the Act, in case Of public emergency, for a speciﬁed pe-

riod not exceeding 3 months at a time.

Empowers the Pre-

siding Oﬂicer to adjourn the poll in case of riot or vio-

lence or natural calamity or any su-

fficient cause on account of which it is not possible to hold the poll.

Empowers the Gen-

tral government to appoint directors in a Railway Com-

pany, where a situ-

ation has arisen in the affairs of 21 Railway Company which has prejudi-

cinlly aﬁected the convenience of per-

sona using the rail-

way or has caused serious dislocation in any trade or in-

dustry using the railway, or has cau-

sed serious unem-

ployment amongst a section of the community, or when, in the opi-

nion of the Central Government, it is necessary to take the management of the company in the national interest.

"Emergency" used in the marginal note.

Word "emergency"

used in the short title .

I 10?

Whether the expres:

Act Section Gist sion "

'll .

I 2 3 4 (22) The Mir1esAct, Section 39(3) Erﬁsowus the Ben- "Emergency" used in t I952 (35 ollssz).

-(23) The Life Insur- Preamble and title . B1106 EEC}?

Provision) Act, 1956 (9 of 1956).

-(24) The Arm! Act. Section 17(9) . .

I959 (54 of I959).

-(3§I)ng'he Defence of Preamble, and see-

ia Apt, 1962 Ition 1(3).

(51 of 196:).

(26) The PersonalIn- Preamble, title and iurica (Emergency section ,2(s)- - Provision) Act, 1962 .(59 of 1962).

Preamble, title and sections r(b), 5(1), 2, 9 and to.

(27) The Emergency Risks (Goods) In surance Act, 196:

(6: of 196:).

Mates provisions for Word Government section 39(a).

to make rules pro-

viding for exemp-

tion of all persons except adolements from the provisions of section 20, 3o, 3:. 34 or 36(5) in case where an emer-

genqy involving se-

rious risk to the safety of the mine or of persons em-

ployed therein is apprehended.

Provides'for taking The word "Emer- over, in the public gency" used in the interest, of the short title.

management of life insurance business pending national-

isation thereof.

Central Government Not used.

may revoke all arms licences.

Preamble refers to The "Procla.u-nation the "Proclamation Jot' Emergency" re- Emergency". Sec-- ferred. to.

tion 1(3) limits the duration of the Act to the Emergency and six months thereafter.

Word "emergency"

Empowers the Cen-

used, in short title.

Jtral Government to make I. scheme for the grant of re-

lief in respect of injuries sustained during the period of eznensency. by certain persons.

"E1-nergency"

insurance of used in short title.

_ in India ugtunst damage by enemy action dur-

ing the period of emergency.

108

Whether the expres-

Aclt _ Section Gist sion "'emergency"

' ' used. -

I 2 3 4 (28l_I'heBmergc1}cy-Pregmblc, tit1e&sec- Makes provisions for Word "emergency' Risks (Fletones) nuns 1(3), 2, 3, 4, insurance of certain used in shorttitle. Insurance Act, 4.6.7and 8. property, like fac- T952 (53 Of 1962). tories and their buildings, against damage by enemy action, during the period of emer-

gem?-

(zg) The Main: Port Section 90 . . The Board under Used in the body Of' Trusts Act, 1963 the Act is e.mpcI-- section :90.

(38 of 1963). wered to set apart funds for different purposes, including for an emergency arising in the or-

dinary conduct of work under this . .. .. ... . ,, . -~.-._._.. ""'*' 109 APPENDIX VII Smriiroinr PROVISIONS IN ENGLAND AS To INTERCEETION OF POSTAL ARTICLES The following pro-visions in England may be noted:---

(1) Section 11(1) (b) (c), Post Oﬂice Act, 1953 (1 8:

2 Eliz. 2c. 36), peiialising the sending of a postal pacl-:'et containing indeqient or obscene prints or articles or acontaining words etc., which are grossly offensivel.

(2) Section 11(3), Post Oﬁice Act, 1953 (1 2 Eliz- .'2 c. 36), empowering the making of regulations ior preventing sending or delivery of postal packets con- taining words, etc., of a Iibelflous Character.

(3) Section 1'? (1), Post Ofﬂce Act, 1953 (1 & 2 Eliz. 2 c. 36), regarding the Postmaster General's power to detain any postal packet suspected to contain goods chargeable with customs duty.

* (4) Section 58 (1), proviso, Post Oﬁice Act, 1953 ,- (1 & 2 Eliz. 2 c. 36), which saves power of the Secre- tary of State to order by Warrant in writing that letters passing through the Post Office may be opened or de- tained (extract attached). ' (5) Under section 52 of the Telegraph Act, 1863 (26 & 27 Vict. c. 112), the Secretary of State can by warrant, authorise such persons as he thinks ﬁt to assume control of telegraph works "where such action is "expedient for the public service".

(6) Section 20. Telegraph Act, 1863 (31 & 32 Vict. c. 110). _(Punishment of an oﬁicial for disclosing or intercepting messages, contrary to his duty). (This legislation does not expressly cover telephones').

I. Section II(I)(b)(c), Post Ofﬂce Act, 1953 (1 & 2 Eliz. 2 c. 35), pre- '-91111131311'; is not governed by the test laid down in the obscene pubiications gict, 1959. See Wade and Phillips, Constitutional Law, (1959), page

- 49-

2. $89 Halsbury, Edit, V01. 7, page 379, paragraph 303(2)

3. The uestion of tapping telephones was considered in Eng} :1 'n

-.aRcportoft(lieP'vyCo c1II _ -. - - ant' Phillips: consﬁtuilioml gw' '3g596(;)9,5';);gEU;gs-133. discussed in Wide and 110 Exrmcrs or szcrrons £1 (1) (b) (:2), 11(3), 17(1) Arm 53(1) or run Eneusn Posr Orrrcs ACT, 1953 (1 8: 2 El.-Iz.-2 c, 36}- l;:°::;'5§;'°g" "11. (1) A person shall not send or attempt to send or by pm, of procedure to be sent a postal packet which--- certain a11jc]_¢3_ (B) . . . . . . . . . . . . . . . .

(b) encloses any indecent or obscene print, paint- ing, photograph, lithograph, engraving cinematograph ﬁlms, book, card -Or written comm ' cation, or any indecent or obscene article whether similar to the above or not; or " '

words, marks or.design,s which are grossly offensive or of unindeeent or obscene Character, (2). .'. . . . . . . .;

(3) Post dﬁiee regulations may he made for preventing the sending or delivery by post at any such articles as are mentioned in paragraph _ (b) or (c} of sub-section (1) of thissection or-"Bf lady"-p'<§ata1epa'c1§et havingthereon, or on tll11e"r':o*'i*er thereoi,=any_a'¢vords, marks or designs of :11 1ibe1ious-

c aractiéi-. - '-= M. . .-

(4) . . . . . . . . . . . . . . ..

Power to _ _' _ . _ detain postal ._1'i'. (1) W1thout- p-re]ud1ce to the last foregmng section, Packe_ts_ the Postmaster-Generai»may( detain any postal packet sus-

°°'"'="",;"3 ected to contain-"an' goods'.chargeable -with any custom' com" and' utﬁc} which has not een paid or secured or any goods in

-the Course of importation, exportation or removal into or out of the United Kingdom, the Channel Islands or the Isle of Man contrary to any prohibition or restriction for the- time being in force with respect thereto under or by virtue- of any enactment and may forward the packet to the Com- missioners of Customs and Excise.

(2)-& [3)_....., . . . . . . . . ..

3; 58. (I) If any ofﬁ-cer of the Post Office, contrary to his postal duty, opens, or procures or surfers to be opened, an}; postal, Packtts by packet in course of transmission by post, or wilfully detains 0559*" 0f or dela s, or procure-s or suffers to be detairled or delayed, 2,'§,§;'_'" any sue postal packet, he shall be guiltv of o misdemzeonour and be liable to imprisonment or to a ﬁne, or to both:

Provided that nothing -in this section shall exfelnd to the"

opening, detaining or delaying of a postal packet returned for want of (1 true direction, or returned by reason that the person to whom it isdirected has refused it, or has refused or neglected to pay the postage thereof, or that the packet' cannot for any other reason he delivered, or to the opening, detaining or delaying of a postal packet under the autho- rity of -this Act or in obedience to an express warrant in: writing-under the hand of a Secretary of State.' (2) . . . . . . . . . . . ' *-

111

APPENDIX VIII Heron-r-or Conim-.r-rs: IN ENGLAND REGARDING 1N'I'ERCEP'HON m OF COMMUNICATIONS . t ' , C - ' "ttee aminecl the question of inter- .1,-s91>']!:'.l1l}fE.n g':-1511113 cgmgrtlllsﬂlzuanceselin which the committee was appointed' are thus-_ stated1:---

' ' Security Telefahoiie co'mn1_-mticaiions (intern-eptiorn}.--On

-Jtihe G, -195i';,Te*t1ie_-1-I5'i1!§"'Slecretar?! was asked in the of Qoiitznons iiij what c rcumstances he haci aullioi-ise'd;Il1é*'15_oli(:el to supply the Bar Co'_unc:il, in cdfnie_e'c_ion with 5,' desciplinéry matter affecting -a. bar- risterﬁwlth trams of intercepted telephone con-

-«.ieriéations:iii'rtlie niidon-area. l Bntleztreplied that the material in question was "D'l5'IalIlEd.=1n1ﬂ§'fI authsiiﬁty of aitoan-ant of the Secre- tary of State and re1a_téo'.1.1:0 the case of aiiotoriaus and self-confessed criminal; that it was disclosed to the Bar"

. Counhil ,Z:n..rasponse to a=req1sest:I3'oen the Council for asaifsﬁanee ina.»inq1iiaries::w'l1ic'h the-y were making into- tomﬁ¥a.jn!ﬁs':ﬁbo\:1t the -ﬁrrofassioﬁal conductor a part1'-- cular bantister; that the Menaloert who aslced-the ques-

-- tion ccmldglaie 'swat-ed that the Secretary of State only acted in H'1l$:',:1VR'_'{ whim he":-ealised that the public in~ terest necessitated such action; that this action would never be used except in the interests of public order;

_ that he was not prepared to go into detail in this mat--a lei. which derived from the prerogative and which was a power that he should exercise at his discretion; that he considered thatthe ciretunstances of this case justi- fied the action that was taken (571 I-LC. Deb. 1469-14?1;. see also 1-lB7--1497, 1560--1501'). .

On June 7, 195?, the Home Secretary made 3' state- ment and answered further questions. He said that the prerogative power of intercepting telephone com- munications eould be used only by the personal a1J-tho-- rity of the Secretary of State; that this power was one which Parliament had always recognised to be essen- tial for the protection of society; that it was used solely in cases involving the security of the State, or for the purpose of detecting serious crime; that information- from this source was jealously guarded and it was settled principle that it was not disclosed to persons outside the public service; that the circumstaaices of this case were, however, whollgr exceptional; that it was represented to the Secretary oi. State that the disclosureiof this information to the Bar Council was IL {rem Ifublic Law 254, 355.

112

desirable in the interests of maintaining our high stan-

-dard in the administration of justice and that the Secretary of State felt it to be his duty to supply to the Bar Council information which had already been obtained; that he must make clear that this case would '.not.be treated as a precedent; that Her Majesty's Gov- ernment appreciated to the full the necessity of preven- ting any abuse of this necessary but distasteful power; that the decision was taken by his predecessor as Sec- retary of State; that in his (Mr. But1er's) opinion, the general principle that this sort of information was not disclosed to persons outside the public service should be the line of conduct in future; that there was no ues- tion of using this power to obtain information a ut what passed between a lawyer and his instructing solicitor or a member of the legal profession and his client; that the power was used to defect serious crime and would never be used for prying into conﬁdential

-communications between an accused person and his

- legal adviser (571 EC. Deb. 1573-1579; "see also 5'72 H.C. Deb. 413-424, June 27, 1957).

On June 28, 1957, it was announced that a com- mittee composed of Sir Norman Birkett, Lord Monckton and Mr. Patrick Cordon Walker, would inquire into the practice. Their terms of reference are "to consider and report upon the exercise by the Secretary of State of the executive power to intercept communications and, in particular, under what authority, and to what extent, and for what purposes this power has been put; and to recommend whether, how, and subject to what safeguard, this power should be exercised, and in what circumstances information obtained by such means should properly be used or disclosed."

The maintpoints made in the Report of the Committee of Privy Councillors have been thus summarised'.

Security Telephone communications (interception).--Dn October 31, 1957, the Prime Minister stated that he had received the Report of the Committee of Privy Coun- cillors, that the Government accepted all recommen- dations and that arrangements were being made to give effect to those which called for a change in procedure (575 I-LC. Deb. 398-399).

The Committee's report stated that the origin of the power of the Executive to intercept communica- tions could only be surmised, but the power had been exercised from very early times and had been recog-

1. Sec (1958) Public Law 7: to 73, extracting the suiilnrary from com- monwealth Survey (Commonwealth Oil-ice of Information) Vol. 12, I957- 113 'nised as lawful by a succession of statutes -covering "the last 200' years or more. The manner of its eirercise had from time to time been the subject of public dis- cussion, cmdi in 1844 had been the subject of investi- gation by two secret committees, one of each House of Parliament, which inquired into the law respecting the detaining and opening of letters at the General Post Office, but both these committees had recognised "the power as lawful.

The committee found some difference of view 011 the authority to intercept telephone messages; in one "view it was identical with the power to open letters; in another, it rested on a comparatively modern statute.

It is today the invariable practice that the inter- ception of communications is carried out only on the authority of the Secretary of State for Home Aifairs (or, in the case of Scotland) given by warrant under his own hand; the warrant sets out the name and address or telephone number of the person whose com- munications are to be intercepted. The Secretary of State has to satisfy himself, on the facts of each parti- cular case, that it is proper to issue his warrant. In practice, the principle on which he acts is that the purpose of the interception must be either to detect serious crime or to safeguard the security of the State.

The power of interception is now almost exclu- siv sly exercised, under warrant from the Secret of State, by the Metropolitan Police, the Board of us- toms a-nd Excise and the Securtiy Service; the Corn- mittee found that "it is used with the greatest care and circumspection, under the strictest rules and safe- '.9:uards." They were satisﬁed that "the Secretaries of State and all the officials concerned have taken, and continue to take, scrupulous care to ensure the strict observance of the purposes to which it is intended by the Home Office that the interception of communic.a-- tions should be directed and conﬁned", that "inter. ception is highly selective and is used only where there is good reason to believe that a serious offence or security interest is involved". and that the use «of the power has been effective in detecting major crimi- nals and preventing injury to national security.

They recommended that the exercise of the power in these limited spheres should be allowed to continue under the same strict rules and supervision: "the criminal and the wrongdoer should not be allowed to use services provided by the State for wrongful pur- poses quite unimpeded, and the Police, the Customs, and the Security Service ought not to be deprived of an effective weapon in their efforts to preserve and maintain order for the beneﬁt of the community." In 61 M of LaW--11.

114

the opinion of the committee, "the interference with the privacy of the ordinary law--abiding citizen or with the individual liberty is inﬁnitesimal and only arises as an inevitable incident of intercepting the commu- nications of some wrongdoer. It has produced no harmful consequences.

The committee reached the conclusion, however, that, in the Marrinan case, which had given rise to the investigation, the decision of the Home Secretary, Lord Tenby, to permit the disclosure of information contained in telephone intercepts. to the Bar Council and the Bencliers of Lincoln's Inn was a mistaken decision, though there could be no doubt that it was "Wholly governed by considerations of the public in- terest". They recommended that "in no circumstances should 1'J_;iat,erial obtained by interception be made available to any body or person whatever outside the public service".

Among other safeguards which, the committee recom~ mended, should be adopted, were:

that there should be a regular review of-outstancl- ing Warra-ntsvnot less than oncea month;

that warrants should be valid only for a stated period: I . '. _-- W that each warrant should relate only to 'one indivi- dual, of whom -particulars should be speciﬁed;

that full records should be kept in the Home Office in .each»cas_e;: ..

that there should be no extension of the powers. of interception beyondthose existing powers which the committee has deﬁned.

While agreeing" with other members of the committee on.

their main conclusions and recommendation, Mr' Gordon Walker made reservations on the continued use of the exist- ing power of interception in View of public re-pugnance. He considered that the power should be used for the detec- tion of crime only in the most rare and urgent cases, such. as the apprehension of dangerous criminals or lunatics; and for security purposes only for direct counter--espio- nage and protection of high secrets of State, or for the prevention of the employment of fascists or communists on work vital to the State (the two purposes he added, for which the Security Service at present mainly intercepts communications) "1.

1, Even after the GoInmitiee's Report, a controversy arose in I959. See Comment, "Interception, Partial and Impartial", (1950) Public Law 5, and 514 1-1.0. Deb. 1184, I388, and 615 l-LC. Debates 1523, I536 er. seq.

115

As regards the 1957 Report, the following extract from one study1 would he of interest-

An important limitation on the principle in Entick v. Ccrrrington must, however, be noted. The principle assumes that the action of the administrator which has been called in question infringes some legal- ly protected interest of the private citizen. Yet upon investigation it may be decided by the court that no such Iegally protected interest has been infringed. This was very clearly brought out in an aﬁair which gave rise to much public discussion, and resulted in the appointment of a committee whose report is entitled "Report of the Committee of Privy Councillors ap- pointed to inquire into the interception of communica- tions". Three Privy Councillors of undisputed autho- rity, Lord Birkett, Lord Monckton and the Rt. Hon. Patrick Gordon Walker, considered how far the pra.c- tice of wire-tapping (as it_ is commonly known) could be justiﬂed.

The Commit-tee found that the power was on the whole wisely used; warrants for interception were sparingly granted (in 1956,_183 letters and 159- telephone interceptions were authorised) and only when the Home Secretary was personally satisﬁed that the public interest required it. The origin and basis of the power of intercept commnntcattons is obsure, though it has been exercised for many years. (In the eight- eenth century the Bishop of Bath and Wells was the chief government decoder). The Committee's conclu- sions suggest that there are two views as to the origin and basis of the power. First, it is said that there is a prerogative power, or a power in the nature of a pre- rogative power', to intercept communications in the public interest. (Prerogative, we may here interpose, is that law for the Queen which is no law for the sub- ject. It is the name for the common law discretionary power of the Crown). This power is said to be im- pliedly recognised by a long series of statutes relating to the Post Office from 1710 to 1953. Thus, section 58, sub-section (1) of the Post Office Act, 1953, makes it an offence for any ofﬁcer of the Post Office to open any communication except under the express warrant in writing of 3. Secretary of State. Now it is certainly a curious prerogative which enables one Minister of the Crown to interfere with the statutory functions of an- other; and it is also certainly curious that none of the many writers on the prerogative throughout the gen- turies has referred to this power; and it is of course clear that_1or_ig user of itself does not make legal what 'is otherwise illegal. There is. therefore, much to he I. Hcustou. Essays in Constitutional "Law,-(1954), pages 50-5;

2. H.M.S.O. (I957) Crud. 283.

1115

said for the second view, which is simply that no pre- rogative power is needed to intercept communications because no unlawful act is thereby committed. This was the View of the Post Oltice down to 193'? so far as telephonic communications were concerned. The Post Master Gene:-al's View until that year, when he was persuaded to follow the Home Oflice practice, was that anyone could tap telephone. and indeed if one _10Dks a'! the statutes it appears there is some justification for this view. The Acts do not authorise the Secretary of 'State to issue a warrant, presumably because anyone may do so; they merely make 11; a crirninal offence to interfere with communications except under the authority of such a warrant. This View depends UWT1 the fact that :1 legal power is only required if some legally protected interest of the subject is being in~ vad-ed, and in the case of interception of communica- tions it is hard to see just what that interest may be-. If We look at the recognised heads of civil liability it is hard to see how interference with a postal packet, or even more, a telephonic communication, can pn°.=<_'i- 1313; be ﬁtted into any of them. Breach of contract is out of the question, for it was re--afﬁrmed by the Court of Appeal in 1957' that the services which the Post- rnaster--Ge-neral renders are not of a contractual character. Nor does a Post Office servant who opens a letter commit any tort or breach of bailnnent. hes- pass to chattels is out of the question because the plaintiﬁ is not in possession of the article, nor indeed has he a right to immediate possession of it, for the Post Office regulations provide that one who has posted a letter is unable to retrieve it. The other torts such as conversion or detcinue seem equally inappro- priate; in any event section 9(1) of the Crown Pro- ceedings Act, 194?', effectually bars such actions? The conclusion would seem to be that it is time for Pan liamen: to review the situation and place the whole matter on :1 ﬁwn statutory basis."

1. Tris'-Fits 83> Ca. V. For: Oﬁics, (1957) 2 QB. 352; (1957) 2 A1], ER, 337 CC.A.).

2- The sllb-section not only' relieves the Crown frsrn lﬁabiﬁty in respect of all telephone messages, loss of or damage to -in unregistered postai packers, but also exempts from liabilixy any ofﬁoer of the crown except at thesuit of the C':-Jwn itseif. It seems that me is without, any_ remeﬁy if a postmaster dlzstrcys ooe's mail befare one'; eyes, This is a I-ernai-'sable, perhaps a unique, e3:L':pt'|C'.l:I 1'3 -the prim-_ip1a that every oﬂicial is individually responsible for his ti-1-:5.

APPENDIX IX.

LEGAL ISSUES RAISED RY INTERCEPTION or POSTAL ARTICLES The question1 whether interference by way_ of inte1'--e ception of postal articles amounts to any illegality at all, may be usefully considered. So far as tangible goods of' economic value are concerned, the following points can be made: ---

(a) It has been held in one case", that the Post:

Master General can take on the character of a bailee, so as to be entitled to sue a third person. In that case it was also observed, that the Post Master General would have a good answer to an action by the bail-',0r for damages for loss of the thing baﬂed. But that was because the Crown could _not be sued. In India, in-. View of section 6 (last part), the Post Crfﬁce may per- haps incur liability also qua bailee; and if that is so, then, by not carrying out the duty of conveying the goods, it commits the tort of conversion, at least if the goods are destroyed or materially interfered with, because the goods were placed in the Post Oﬁice only for the puxrpose of being, transmitted to the addressee.

The following discussion regarding bailment may be cited'--

'Bailment is essentially a delivery on terms, but none of the deﬁnitions we have is exhaustive in view of the widely different forms a bailment. can take. In Terms d--e la Ley it is writtten:

"Bailment is a delivery of things whether' it be of writings, goods or stuﬁ.' to another, sometimes to be delivered back to the bailor,.. that is to him that so delivered it, sometimes to the use of the bailee. that is to say, of him to Whom it is delivered, and sometimes also: it is delivered to a third person."

And in Stephen's Digest of Criminal Law:

"When one person delivers, or causes to be delivered, to another any movable thing in °1_'dEI' that 1'C_IT1aY be kept for the person making the delivery, or that it may be used, gratultously 01' 0th€1'W1Se. by the person to whom delivery is made, or that it may be I. See the query raised 'n H , E ' - -

(1964), pages 5o_s2. 1 E11530" 553373 In COI1StItl.ltlDI1al Law

2. The Winkﬁeld, (1902), Probate 42, 54, so,

3. Vaines, Personal 'Property, (1957) pages 57-53, 117 118 kept, as a pledge by the person to whom. deli-

very is made, or that it may be carried, or that work may be done upon it by the person to whom delivery is made gratuitously or 1101, and when it is the intention of the parties that the speciﬁc thing so delivered, or the article into which it is to be mace, shall be delivered either to the person making the delivery, or to some other person appointed by him to receive it, the person making the delivery is said to hail the thing delivered:

the act of delivery is called a bailment; the person making the delivery is called the bailor, the person to whom it is made is called the bailee."'1.

The above deﬁnitions avoid inclentifying a bail- ment with :1 contract but until recently judges and writers have more or less consistently treated bail- ment as an express or implied contrracti, and it is curious that the two cases which deny that a bailrnent ment as an express or implied contract", and it is is a great deal to be said for this mode of treatment and it might Well he asked Whether, for practical pur- poses, bailment is not better regarded as a contract in View of the importance of the contractual terms' which generally dominate the relationship".

"However, it is clear that bailment is sui genesis, and modern writers adopt this view mostly without question and the theoretical difficulties of treating bailment as a contract are apparent when one consi- ders, in addition to the simple case of bailnient by

1. These deﬁnitions are cited by Rainer, L.I., in Asklay v. Talhursx, 1937) 2 All ER. 837; (1937) 2 K.B. 242. Cf. the ﬁrst deﬁnition given by 3.1' William jones, op. cit., 1, "a delivery of goods, on a condition express or irnpliod, that they shall be restored by The |3EilC'E t0 the bailor or according to his direction as soon as the purpose for which they were bailed shall he answered."

2_ Sir Wﬂlimn Ioncs, op. cit., deﬁnes bailment "a delivery of goods. in trust, on a contract express. or implied, that the trust shall be duly executed, and the goods be delivered, as soon as the time or use for which they were bailed shall have elapsed or be performed." Of. his first deﬁnition, supra.

3. R. v. Robson (1361), Le. 55: Ca. 9 ; R. v. Mcﬂmald, (I885), 15 Q.B.D. 3335 holding respectively that a .!I]ElI'l.'1 woman and an infant could be guilty of larceny as a bailee. Cf. Smith v. Plomer (1912), J 5 East 607. See also Meuz v. Great Eastern Rag'! C'a., (I895) 2 Q.B.D. 387.

4- Halsburgfs Laws (3rd ECIIL), -96, states "It must _he remembered, however, that bailmcnt is a contract and the parties may always vary the incidents by the terms of the contract."

5. For an unsuc.-aessfiil attempt at evasion, see Elder Demj>sze:* v. Pater- son, Zachonis as Can, (I924) A-CL 522-

5. Winﬁeld, op, cit, 97; Fifoot, op. cit. 253 Ceshite and Fifcot on -C_.on- tract; Goodeve, Personal Property, Chap. 2, s_ecnon 3_; Kenny, 0L1tllfl'lE3 of crimiml Law, Chap- XIII ,- Paton, Bailment [I] Gomrnon Law,

29. 119 ﬁnding, the problem of discovering the consideration'- in a gratuitous bailment (said in Coggs V. Be-rnard (Barnard)? to be in fact that thie owner entrusts the goods with the bailee), the position of a distraining landlord" or the distrainer of a chattel demage feasant, the undoubted bailment that exists when goods are not collected from a carrier at their destination', or the bailment that may arise upon a misdeliveryﬁ"

Thus, it is not accurate to assume that a bailment arises only on contract". "Bailment is necessarily to be dealt with by the Contract Act only so far as it is a kind of contract. It is not to be assumed that without an enforceable contract there cannot in any case be a bailment." 7 If the View that the Post Oﬁ-ice is a hailee is ac- cepted, then such bailment would seem to fall within the species "mand_atum"---~wherein goods are deliver- ed to some who is to carry them or to do something to them without reward".

(b) As regards conversion, it is true, that ordinarily only a person in possession or entitled to immediate possession can sue in conversion. He must have the right of possession and a right of property in the goods I. But C0i'111l1drl.l.1TlS on consideration are sterile to the modern lawyer. Law Revision Cc-n1mittee's Sixth. Interim Report; Central Lmdon Properiw Trust Ltd. V. High Times House, Ltd. (1947) B23. 130; Denning, L]. in 15 M.L.R. 1'.

2. (I703) 2 Id. Rayrn. 909 and See the well-known and odd case or Baz'r1lIr2't1'ge v. Ffrmstcme (I83 8), 8 Ad, & E1. 74.3,

3. 2 Blackstonr-:'s Commentaries 452, says the distrairien subject to' a contract implied by law, e.g. to restore the goods on payment before sale. Bot qwzsre whether he is a haiiee. See page 62, ante.

4. See Mitchel? V. Lancarhire and York.:}ea':-e Rm'! Co., (18751. L.Q. to (22.3.1). 256. Here the contract provided for the contingency but the terrns did no more than state what in fact was the common law. See 'page 94, post.

5. cr. Elvin and Powell', Ltd. v. Pia!-nmer Raddfr Ltd. (1933:, 5o T.L.R. 158, with Hfart 'V. Bart. (137431 L.R. 9 Each. 36, and see page 84, post.

6. See Cheshire and Fifoor, Contracts, (I964), pages 72, 73 7.1; Vaines, Personal Property, (1957), page 76.

7.5 Pollock 8: Mulls, Indian Contra: Act, (1957), page 362, ::riti-:i-s- ing the assumption to the contrary in Ram Yulam v. Star: OF UP... A.I..'E. I950 All. 206, 207.

8. As to classiﬁcation of baiirnents, see Coggs 2; Bernard, (1703) 2 Ld. Rayman 909; Wi1shere,_C:-mmon Law, (1951); pages 5'83, 587, Vaincea, Personal Property {I957}, page 52.

_ 9. For-afull discussion, see Paton, Bailment in the Common Law, (35 52), P38" 39; 37- 120 at the time of the conversion or detentionl-3-"-'. It is also true, that the sender of goods by _ post cannot retrieve the goods sent by mail, without the orders of the competent authority-'''. But that provision seems 120 be intended only to ensure that the process of trans- mission is not affected, and not to regulate the pro- prietory rights ofthe parties concerned.

(-2) Moreover, as has been observed", sometimes the owner's right to immediate possession is reroitted by the very act of conversion, so as to entitle him to sue in trover. Thus, it has been held, that if goods have been placed in the hands of a bailee for a limited purpose, and he deals with them in a manner inconsist- ent with the terms of the bailment, (as by selling them), the right to possession revests in the owner, who can forthwith sue the bailee for conversion'?-5-9.

(cl) Further, an owner has, in any case, a right to sue for goods if he is deprived of possession even if he is not entitled to immediate possession, for an injury to his reversionary interest"-1', and this head of liabi- lity (action on the case for damage to his interest in the goods) would seem to be appropriate at least where the articles in question are destroyed.

(e) If the property in the goods has passed to the addressee", then certainly the addressee can sue for the goods, either as owner or as a person entitled to get immediate possession.

So far as goods having no economic value, or goods having a value besides an economic one, are concerned, these points can be made:----

(i) The sender or the addressee---whoever is re- garded as entitled to the immediate possession of I. I-Ialsbury, 3rd Edn., Vol. 38, page 733, paragraph 1297.

2. _?'ar-vis v. W:'ZI:'ams, (1955) I A1l.E.R. 108, III (C.A.).

35 Commercial Banking Co. v. Mann, (I961) A.C. I; (19430) 3 All. ER. 482 .C.).

4. Generally, see Warren, "Qualifying as Plaintiff in an action for

-a conversion" (I936) 49 Harvard L. Rev. IOB4.

5. Section 18 of the Indian Post Oﬂice Act, read with rule 201, Indian Post Office Rules, 1933.

6. Fleming, Torts, (I965), page 64.

7. North General Wagon Co. v. Graham (1950) 2. K.B. 7'; (1950) I All E. R. 730, as explained in Relzanca Car Etc. V. Roding Motors, (1952) I All E. R. I935(C.A.).

8. See Salmond, Torts, (1961), page 278.

9. See also Paton, Bailment in the Common Law (1952), page 335- :o. Street, Torts, (1959), page 59.

11. Mears V. L.S.W. Rly. 09., (1862) II C.B.N. 350.

I2. As between the sender and the addressee, the answer to the question whether propert has passed to the addressee depends on many other factors, e.g., w ose agent the Post 0ﬂ'ir.e is. See I. T.C. v. Ogale glass Worn, ;\.].R. 1954 S-C- 439- 121 goods--can sue in detinue'. It is not the economic loss that is signiﬁcant in the case of such goods (for exam- ple, letters), but another kind of loss, Le. loss of literary matter of information or views 1n queSt10I1- The sender or addressee would like to have the goods specie--which is possible in detinue alone?-3-4.

Detinue is the form of action which lies when one person wrongfully detains the goods of another. The gist of the action is unlawful failure to return the goods, when the goods are demanded?

Thus. wrongful taking is redressecl by trespass; wrongful detention is redressed by detinue; and wrong- ful destruction or disposal is redressed by conversion. This applies to papers alsoﬁ. In fact, any chattel can be the subject-matter of conversion'.

"The standard remedy of a person who has been deprived of goods is conversion; and detinue is the standard remedy against a person who fails to- return the goods".

return of the chatta19.

The gist of the action of detinue is unlawful de- tainer, and it is an action of tort. I1; is no longer neces- sary to allege "delivery" (detinue sur bailment) or "ﬁnding" _(detinue sur trover), and it can be brought against any one who unlawfully detains goods from a person entitled to immediate possession, without re- gard to the means by which possession is obtained".

the In detinue, the suit is primarily for the~ For wrongful deprivation of use and possession of the-

plaintiﬂ"s goods, conversion is the recognised legal ex-

pression". The action of detinue, on the other hand, is -.-

based upon a wrongful detention of plaintiff's chat-

tels"-'-".

-I. As to detinue, see Salrnond, Torts, (1951), page 290, articles 43; Snell, Equity, (I960), page 531:, paragraph 4 Paton, Baitment in the Common Law (I952), page 379.

2. Street, Torts, (1959), page 57.

3. As to speciﬁc restitution, see Keaton, Equity, I18-1:9; Salmond Torts (r96t), page 292.

4. See Halsbury, 3rd Edn., Vol. 33, page 77. et seq.

5. See Ballet: V. Mingay, (1943), I All. ER. 143, I45 (C.A.).

(I955), P3335 -

6. M'Ls0d V. M'Ght'e, (I84!) 2 Man St G. 32.6 '(mutilating a guarantee), ., cited in Fleming, Torts, (1965), page 60.

7. See deﬁnition of conversion in Salrnond, Torts (r96r), page

262.

8. LA. Weir, Note-----"Tort, Contract and Bailment". (November, 1965), Camb. LJ. 186. 190.

8 9. 63:3: Simian Cherry v. Az'abi'g.-.' Aiyer, (1923) I.I...R. 45 Marl.

52. 8 I-

I0. Wilshere, Common Law, (1951), pages 324., 325. II. Clerk 8: Lindscll, Torts (I961), paragraph 899.

12. Clerk & Lindscll, Torts, (1961), paragraph 934.

13. For damage by negligence, see Simpson, Action on the case for -

Conversion (I959) 75 L.Q.R. 364.

122

(ii) ,The recipient of a letter acquire the property in the paper1--3--". But the property in the contents is in the sender, at least so far private matters are con- cerned"-5-°.

(iii) A letter is an "original literary work", and the writer has copyright therein, and can restrain any publication of copies of his letter as an infringement".

Would not the destrucion of a literary Work amount to- destruction of a recognished literary pro- perty, and thus be actionable?

(iv) The writer of a conﬁdential work can, in cer- tain cases, prevent its publication9-1°.

Opening of such letters may, perhaps: therefore, constitute an injury, though this has not yet been decided.

In a _case before the House of Lords", publication of unpublished lectures of a university professor was res- trained, and this was on the ground that such publica- tion Was in the nature of a breach of conﬁdence which fell Within the ordinary scope of equitable res- 'traint12--13.

An English case" relating to photographers may be cited in this connection. In that case. a photogra- pher had, by arrangement, taken and sold to the plain- tiff some photographs of herself, (iJ.e. the plaintiff). The photographer, then, at a subsequent date, without the plaintiffs knowledge, used the negative to have her likeness inserted in Christmas cards. The plaintiff I. Paton, Jurisprudence (1946), page 128.

,3. Cﬁ section Io, _Il.lustration (c), Speciﬁc Relief Act, 1:377 (1 of 1377) (repealed); now section 8, Speciﬁc Relief Act, I963 (47 of I963).

3. See also Oliver v. Oliver, (1861) II C.B. (N.S.) I39; I32R.R. 505; 31 L.]'. C.P. 4.

4- Cf-, 5€Ct50T_1 54. illuﬁration (Y). and ﬁcction 55, illustration (:1), Specific Relief Act, 1877 (I of 1877) (repealed); new sections 39~39, Speciﬁc Relief Act, 1963 (47 of 1963).

5. Halsbury, 31-cl Edn., Vol. 8, pages 437-438.

6. Copinger, Copyright, (1958), page 2.8.

7. Coplnger on Copyright (1958), page 27.

8. Br-i'ti'sh Oxygen Co. v. Li'qui'd Air Co., (1925) I Ch. 333.

9. Halsbury, 3rd Ed.n., Vol. 3, page 438.

10. For a full discussion, see Gopingar, Copyright (1958), pggim 31 to 38.

II. Caird v. Simc, (1887) I2. App. Cas. 326.

12. See Hanbury, Modern Equity, (1957), page 551, I3-_Seea1s;o SHe11,Equit3'.(I96§),pages 721. 722. See also 1:-.i., Mathieson, in (1961) 39 Canadian Bar Review 409.

I4. Pollard v. Photograph-is Co. (1888) 40 Ch. D. 345.

123

.appll.ed for an injunction to restrain this. She had not (as was the necessary) registered any copyright in the negative, hut she contended that there uras an implied condition In her contract that the negative should no. he used for any other purpose than t0 SUPP13' Photc"

graphs to herself. The court held that, a photographer was not justiﬁed in striking off copies of a ph0t0E1"3P--"1 for his own use unless, expressly 01' implied. he haji authority from his client. "I say expressly 01: 1If1_l3h95-* ly", the Court stated, "because a photographer 15 fl?' quently allowed, on his own request, to take a photo- graph of a person under circumstances in which a sub- sequent sale by him must have been in contemplation of both parties, though not actually mentioned."

The court considered that an abuse of a conﬁdencc---- analogous to the misuse of information obtained in

-conﬁdential emp1oyment--arose in this case, and grant- ed the injunction prayed for. It was said that, that.

"though failure to register the copyright barred the plaintiff from enforcing a remedv for breach of copy- right, she was still entitled to relief on the grounds of breach of a contractl.

Injury to feelings may justiﬁahly enhance the

-damages. Thus, in one case", the Court of Appeal, with reference to an unauthorised publication of the photo- graph of a murdered man along with his daughter and son--in-law, observed, "It Was an intrusion into his life, deeper and graver than an intrusion into a man.'s property".

(V) Interception of letters, moreover, may raise many questions, for example, whether it is legally open to a post office official (apart from a valid statutory provision) to read and (thus interfere with) letters between a husband and wife, letter conveying business secrets, letters containing conﬁdential communications, and the like. The last words of section 6 of the Indian Post Office Act show, that the Act gives no p-rotecticun in case of wilful acts. If the law recognises (or, future, is likely to recognise), the interest of the sender or addressee in these matters, then such interception is, or is likely to become, actionable.

It is likely, that courts would be inclined to extend the protection 'Wh2lCh'llaS so far been extended to iangj- hie goods, (_or intangible goods with a pecuniary value), to communications and similar interests also.

{[9663 §:gg0?*_ﬂ1_lIﬂCt1'0f19 to prevent breaches of conﬁdence, see Snell, Equity

2. Cf. William V. Settle, (19-6o}, 2 All. 13.12. 806, S12 (C.A.).

124

(vi) The question is not of a physical object only; it may also be of the personal interest'. If the lan- guage of property fails to meet the object of protect- ing this personal interest, the law may, in future. evolve other methods. The uncertainty that has exist- ed so far on the subject is due to the fact that the interest sought to be protected has remained ill deﬁned and unidentiﬁed. It is for this reason that statute may have to intervene, to deﬁne the position.

(vii) The matter is, however, not very important in India, because, even if there is no breach. of any right recognised at ordinary law, the fundamental right:

under article 19(1)(a) is violated, and the remedy under articles 32 and 226 of the Constitution is always open.

The position resulting from this discussion can be thus summarised:

(1) The relationship between the Post Ofﬁce and the sender is either of a bailor and bailee, or akin to that of a bailor or bailee. At the worst, the Post Office is a stranger, and the owner has all rights) against the Post Office that he has against any other person.

(2) Whatever be the relationship, the proprie-

tary remedy of conversion or of injury to reversionary interests is available to the owner--(who may be the sender or addressee) if the articles have a pecuniary"

value.

(3) The remedy of detinue is available to the owner (who may be the sender or addressee')',. for all.

articles.

(4) Further, in the case of articles having mainly literary or sentimental value, destruction of the article [under section 23(3), for example] would- perhaps amount to interference with literary property; opening of the article would often amount to a breach of conﬁ- dence; and even where no question of literary pro- perty or conﬁdence is involved. the law may in future recognise and protect other interests, so that interter--

ence may become actionable.

I. See Paton, Jurisprudence. (I945). page 128,) as to personal' st. 125 Regarding literary property, it may be noted that 'while destruction of a literary work does not seem to have so far ﬁgured in any reported case, this is because there is only a partial understanding of literary pro- perty. As has been observed1--

"Much of the diﬁculty surrounding the con- cept of copyright arises from the fact that while it protects economic rights, the concept of proper- ty involves rights other than economic rights. Copyright is unique because it is special form of intangible property and should be limited to eco- nomic rights. But it is a derivative right, being derived from the larger property interest an author has in his works. As it exists today, the derived right destroys the larger property in.- terest, but if the larger interest is recognised, the result is that literary property has two compo- nent parts------a commercial right and a creative right. Since one is primarily economic in nature and the other primarily personal in nature, they provide both a basis for delineating problems of literary property, and a framework for resolving the problems in terms of purpose without resort to technicalities."

I _.I. I'artcrson,(F"'%tarute of 616§)r1.ne", (1966) 3 Harvard Juornal of Legis- ation 2.23, 252, c ruary, I9 , U niawful use of mails.

Prohibitory Order Notice.

APPENDIX X CANADA REGARDING INTERCEPTION or POSTAL ARTICLES In Canada, the following statutory provisions seem to be relevant regarding interception.

Section 7. (Canada) Post Oﬁice Act, 1951.

Section 6(1) and 6(9) (Canada) Post Office Act, 1951----empowers the making of regulations regarding the conditions under which mailable matter may be sent, and for excluding non-rnailable matter from mails.

Section 59. (Canada) Post Office Act, 1961, punishes a person sending any explosive, dangerous, etc., substance.

Section 41. (Canada) Post Office Act, 195l--"Notwith- standing anything in any other Act or laws, nothing is liable to demand, seizure or detention while in the course of post except as provided in this Act or the regulations."

Exrsscr or sncrron '7, CANADIAN Poor Orrrcs ACT, 1951. Use of Mails for Unlawful purposes

67. '(1') Whenever the Post--Inaster General believes on reasonable grounds that any person--

(a) is, by means of the mails,

(i) committing or attempting to commit an. oﬁence, or _.

(ii) aiding, counselling or procuring any per- son to commit an offence, or _Pos1r1oN IN

(b) with intent to commit an offence, is using the mails for the purpose of accomplishing his object, the Post-master General may make an interim order (in this section called an "interim prohibitory order") prohi- biting the delivery of all mail directed to that person (in this section called the "person affected") or deposited by that person in a post ofﬁce.

(Ex) Within ﬁve days after the making of an interim prohihitory order the Post--master General shall send to the person aﬁected a registered letter at his last known address informing him of the order and the reasons there- for and notifying him that he may within ten days of the date of registered letter was sent, or such longer period as the Post-master General may specify in the letter, re- quest that the order be inquired into, and upon receipt Within the said ten days or longer period of a written re- quest by the person affected that the order be inquired into, the Post--rnaster General shall refer the matter, toge- ther with the material and evidence considered by him in making the order, to Board of Review consisting of three persons nominated by the Post-master General one of whom shall be a member of the legal profession.

126 127

(3) The Board of Review shall inquire into the facts Board of and circumstances s-urrounding the interim prohibitory R°"'°'"' order and shall give the person affected a reasonable op- portunity of appearing before the Board of Review, making representation to the Board and presenting evi-

dence.

(4) The Board of Review has all the powers of a Com- Powers of missioner under Part I of the Inquiries Act, and, in addi-- B°""'d' tion to the material and evidence referred to the Board by the Post-master General, may consider such further evidence, oral or written, as it deems advisable.

(5) Any mail detained by the Post-master General Opening of pursuant to sub-section (3) may be delivered to the Board mail by of Revenue, and, with the consent of the person affected, Consent' may be opened and examined by the Board.

(6) The Board of Review, shall, after considering the Report of matter referred to it, submit a report with its recommen- B03"- dation to the Post-master General, together with all evi- dence and other material that was before the Board, and upon receipt of the report of the Board, the Post-master General shall reconsider the interim prohibitory order and he may revoke it or declare it to be a ﬁnal prohibitory order, as he sees ﬁt.

('7) The Post--master General may revoke an interim Revocation or ﬁnal prohibitory order when he is satisﬁed that the of Drdﬁn person affected will not use the mails for any of the pur- poses prescribed in sub-section (1), and the Post-master General may require an undertaking to that effect from the person aﬁected before revoking the order.

(8) Upon the making of an interim or ﬁnal prohibit-ory Effect of order and until it is revoked by the Post-master General, "dc"-

(a) no postal employee shall without the permis- sion of the Post-master General (1) deliver any mail directed to the person affected, or

(ii) accept any mailable matter offered by the person aﬁected for transmission by post,

(b) the Post--master General may detain or re- turn to the sender any mail directed to the person affected and anything deposited at a post office by the- person affected, and

123

able mail, and any mail so declared to be undeliver- able mail shall be dealt with under the regulations relating thereto.

'Interim (9) Where no request that an interim prohibitory ';'1df.;12f°m' order be inquired into is received by the Post-master o,de,_ General Within the period mentioned in sub--section (2), the order shall, at the expiration of the said period, be deemed to be a ﬁnal prohibitory order [(1951) c. 57 s. 7]'.

APPENDIX XI AUSTRALIA---POSIT'ION REGARDING INTEBCEPTION OF POSTAL ARTICLES. Bo 31:5, etc. issued by un- Extract of section 30-133', Australian Crimes Act, 1950----1960. law_fu1_1 as- SOCIEUCIII "30E. (1) No book, periodical, pamphlet, handbill, pos- nott_ralns- ter or newspaper issued by or on behalf or in the interests ° by of any unlawful association shall-- Inserted by

(a) if posted in Australia. be transmitted through N0-9,193-'5. the post; or 5' 17'

(b) in the case- of a newspaper, be registered as a newspaper under the provisions of the Post and Telegraph Act 1Q0l--1923.

(2) Any newspaper registered under that Act, wl1::ch DcresisfIH- is issued by or on behalf or in the interest of any unlawful "UH "f"°""3' association. shall be removed from the register. ,1,°$,','§,:f,Z.d ' - b No. 0, (3) Any book, periodical, pamphlet, handbill, poster or 1332,35. newspaper posted in Australia. the transmission of which Amended would be contravention of this Act, shall be forwarded b.vN0. 84. to the General Post Office of the State in which it was 19303:-53 posted, and shall be forfeited to the Commonwealth and §;1;heE,,Sc shall be destroyed or disposed of as the Post-master ' General directs."

Sections 3, 29, 40--~-'-14, 57, 96, 107 of the (Australian) Posts and Telegraph Act, 1904----1950, prohibit the sending of obscene and certain other objectionable matter by post. (No provision for interception is, however, contained in these sections).

l2--61 Law.

129

Detention of suspected postal articles.

Cf. 1923-, No. 1.2 S.

36. Opening of suspected postal articles.

Of. 1928, No. 12

3. 37.

Notiﬁcation to addressee or sender of detained postal articles.

C . 1928, o. 12 s. 39(2).

Disposal of articles opened under this Act.

Cf. 1923, No. 12, section 39 (1), 40.

articles Opening of postal articles under Governor Genera1's Warrant.

APPENDIX XII New ZEALAND----POSITION REGARDING INTERCEPTION or POSTAL ARTICLES.

Extract of section 30 to 34, 44 and 84, New Zealand Post Oﬁice Act, 1959 "30. Where the Post-master General or Post--master has reason to suspect that any postal article contains any en- closure in fraud or violation of this Act, or of the Customs Acts, or of any enactment prohibiting or controlling the transfer of money or valuable securities by post, he shall detain the pos-tal a-rticle for opening and examining in accordance with section 31 of this Act.

31. Every postal article which is detained under section 30 of this Act may be opened and examined at post office by two officers of the Post Office specially nominated for that purpose by the Post--master General, or by one such ofﬁcer nominated as aforesaid in the presence of another officer or in the presence of an officer of the Customs who, before the opening of the articles, shall make the declara- tion set forth in the First Schedule to this Act and shall not be opened or examined otherwise.

32. Where it is intended to open a postal article under section 31 of this Act, the Post--master General shall cause notice thereof to be sent to the addressee if he is known or otherwise to the sender thereof if he is unknown.

33. (1) Subject to the provisions of this Act, if any postal article opened or examined under this Act is found to be in fraud or violation, or to have been posted in fraud or violation, of this Act or of any enactment prohibiting or controlling the transfer of money or valuable securities by post, the Postmaster General may direct that the postal article be forfeited; and any such article shall be destroyed or otherwise disposed of in accordance with this direction.

(2) If any postal article opened under this Act is found to be fraud or violation, or to have been posted in fraud or violation, of the Customs Acts, it shall be handed over to the Customs Department to be dealt with in accordance with the Customs Act.

(3) Every postal article opened under this Act and found to contain any valuable or saleable enclosure shall together with its contents be safely kept pending its dis- position under this section, and a list of any such postal articles together with a memorandum of the contents thereof shall be made and preserved, _ 34. (1) The Governor-General may, by Warrant under his hand, direct the Postmaster-General' or any oﬂicer to detam or open any postal article for any pui-po.-:2 mention-i ed m the Warrant.

130 : "i 131 (2) If any postal article opened under this section is Cf» 1923. found to contain any money or enclosure belonging to the NI°_-I;§3'- New Zealand Government, the officer opening the article 1?\T,,'_23_ ;_ 4_ may extract the money or enclosure therefrom and dispose of it in such manner as the Postmaster--..zeneral directs.

['1

44. If the Postmaster-General has at any time reason- ,I,Jf:,}:,::,t11° able ground to suspect any person in New Zealand or articles for certain I h ' --

e sew ere to be engaged in addresscm

(a) Any business or undertaking relating to ille- Cf. 1923. gal betting, or to the conduct of an illegal letter, or to ;'_I°3'2_'2' fortune telling; or

(b) Any obscene, immoral, or unlawful business or undertaking; or (C) Advertising in direct or indirect terms regard- ing sexual matters in a manner likely to be oﬁensive--- the Postmaster-General may by notice in the Gazette order that no postal article addressed to -that person (whether by his own or any fictitious or assumed name) or to his address without a name shall be for- warded or delivered under this Act.

84. (1) The Governor-General may from time to time, W3'"'i'° by Order in Council, make regulations for the control or faggrgnfsf prohibition of telegraph messages -in time of war or when (jf_ 1923_' war is reasonably to be apprehended. No. 12, s. 161(6), (2) Every person who commits a breach of any regu- (7). lation made under sub-section 1 of this section commits an offence and shall be liable to imprisonment for a term not exceeding three months or to a fine not exceeding one hundred pounds, or to both." -

APPENDIX XIII U.S.A..----POSITION REGARDING rnrsscasrron or POSTAL ARTICLES It would seem', that in the U.S.A. there are three instru- mentalitiesf employed by the post office for the restraint of mail. The first is conﬁscation and destruction, used primarily against obscene matters and foreign political propaganda.

Since 1957, certain procedural rights for persons whose material was non-rnailable on the ground of obscenity have been provided for, namely, written notice of the reasons for barring the mail, hearing before a Post Office examiner, and decision after two days of the hearing in case of a periodical''.

Authority for barring from the mail papers containing foreign political propaganda is said to be derived from the Espionage Act, 1917, and the Foreign Agents Registration Act, 1933. The 1938 Act required agents for foreign prin- cipals within the United States to register, and failure to do so was a crime. The 191'? Act punishes the possession of papers in aid of a foreign Government which violate any penal statute, and also makes such material non- mailable. , , The second instrurnentality is what is known as "stop order". This was ﬁrst authorised against persons found to be using the mails to defraud, and the eifect of the order was that all mail addressed to the person or company concerned was intercepted, stamped "fraudulent", and returned to the sender. The validity of such order in relation to fraudulent mail has been upheld, though not without strong dissent'-5.

This power was later authorised in relation to mails dealing with obscenity also. It can he used, however, only against mails addressed to the company concerned which is directly connected with the speciﬁc issue of its periodicals which is found to be obscene". This authority has later been extended to mails suspected of promoting fraud, obscenity or gambling. 7

1. See Pritchett, American] Constitution (1959), page 404.

2. (1') Conﬁscation and destruction,

(ii) Stop order, and

(iii) Refusal of second class permit.

_ 3. 39 Code of Federal Regulations 203 (November 9, 1959). cited. in Pritchett, Amercial Constitution C1959}, page 404.

4. Lane}: v. Carlife, (I922) 258 1.1.5. 138.

. Domﬂdsor: v. Read Magazine. (1948), 333 U,S. I78. Summerﬁeld v. Swnitine Basia (.75., (1955), 3.49 U.S. 91:. . (I956) 70 Sm. 699- =-rpxun 132 133 restraint is refusal to grant "second class mailing privileges." This power has been _usEd. though not wtihout dissent', against matter not ma-ilable under the Espionage Act. The validity of this power 3111 ﬁelds unreleated to national security, is doubtfuli', and one case-3 the attempt of the Post Master General to withdraw the second class mail privilege from a magazine, on the ground that the material was so close to obscene that it was morally improper and not for the public welfare and The third type of

-the public good, was invalidated.

i What is and what is not obscene is always a matter difﬁcult to decide. Thus, a post oiﬁce ban on the mailing of nudist magazines was, in one case, reversed by the Supreme Court'. On the other hand, in a very recent case', the ban imposed b the Post Master General against one Magazine was uphe cl.

(1) Article 1, section 8, Clause 7 of the Constitution of the U.S.A. says, "that "The Congress shall have power . . . . ..to establish post offices and post roads". This pos- tal power embraces all measures necessary to ensure the safe and speedy transit and prompt delivery of the mails.

(2) The postal power also includes the power to ex- clude from the mails publications designed to defraud the public or corrupt its morals, such as lotteries" and fraudulent matter?

It may be noted, that in the Donaldson cases what was sustained was a court order forbidding the delivery of a mail and money orders to a magazine for conducting a puzzle contest which the Post Master General had found to be fraudulent.

But there is some doubt as to whether a power to ex- clude from second class mail can be exercised arbitrarily, or whether that power is subject rto some limitation. While the second class mail need not be kept open to pub- lications of all types", this does not imply that the power can be exercised arbitrarily".

1. Milwaukee Publisfzfng Co. V.' Buriesan, (I921) 255 U.S. 407.

2. See Harmegan 'V. Esquire, (I946) 327 U.S. I46.

3. Hamteg-an v. Esquire, (1946) 327 U.S. I46.

4. The Sunshine Book Co. v. Summerﬁeld, (1958) 355 US. 37:. nagiai-3f'isia5i§'§ii,'1g'§é3"$.§§;s§§g3§3i'§§oihi'3.s§3? """"*"'"" 'T'""

6. Ex pm-is jacksan, (I378) 96 13.3. 727, 73;,

7. Donaidrou V. Re-ad' Magazine, (1948), 333 US. 173,

8. Dmahisan tr. Read Magazine, (I943) 333 U.S. 178. 1 9. Hannsgaw v. Esquire, (1946) 3:57 U23. I45, 155, {per Douglas C Lewis Hxblishblg Co. V. Morgan. (1913) 229 U.S_ 228 (per White Power to protect the mails.

Power to prevent harmful use of the postal facilities.

Excluding pow-er genc--

rally 35 an.

adjunct to other powers.

Fourth Amend-

mom.

134

(3) Apart from the power to close the mails, to parti-

cular types of publications which are harmful, a much broader power of exclusion was asserted in one Act of 19351, whereunder to induce compliance with the regu-

latory requirements of that Act, Congress denied the privilege of using" the mails for any purpose to holding companies which failed to obey that law, -irrespective of the character of the material to be carried. The Supreme Court, treating this as a penalty, held the statute to be constitutionally valid, because the regulations whose in- fractions were thus penalised were themselves valid, but it declared, that Congress could not exercise its control over the mails to enforce requirement which lay outside its constitutional province'3--3.

By virtue of the Fourth Amendment, a sealed letter deposited may not be opened by the postal authorities without the sanction of a lvlagistratet. The Fourth Amendment, however, is confined to material things, and hence its language cannot be extended to telephone messages"--°.

The following statutory provisions in force in the l.T.S.A. are relevant':

(a) 18 US. Code, Article 1'Tl'7---Letters etc. which are non-rnailable "shall not be conveyed in the mails or delivered from any post office etc." These include matter advocating or urging treason, insurrection, or forcible resistance to any law of U.S., and matter in vioéliation of certain sections of Title 13, of the U.S. Co e. ' [These sections of Title 18, U.S- Code, are----

499--Forgery of military etc. passes. 506--F'orging of seals.

1. The Public Utility Holding Company Act, 1935; see (1946) 15 U3, Code 79d. 79:

2. Electric Bond C9' Share Co. v. Secui-<:'ti'v:s Exchange Commiasiois, (I938). 303 U.S. 419- See also American (Power and Light} Co. v. S.E.'.C. ('_I<;46) 32.9 U.S

90.

3. Electric Band C? Shara Co. v. Securities Exchange Camm:'.m'm-1, (1938), 303 U-S. 419. 422.

4. E. pa:-re jacksaa, (1878), 96 us. 727, 733.

§. Oimsu-no' v. 15.3. (1923) 277 US. 433,-. 72 L. Ed. 944 {Majority iudg-- mcnt .

6. On Lee 1:. U.S. (1952) 343 US. 747, 753 {Majority judgment).

'7. These refer to 'the edition of the US. Code before 1964. In the 1964. edition of the U.S. Code, some changes have been made but not in substance. _See, now, Title 39 13.8.6. section 4001, (1964) read with Title 13, sections 1302., 1341, 1342, 1461, 1463, 1714, 1715, 1716 1717, 1718 [1964 edition).

i 135 'T93------Gathering etc. or losing defence information.

794-----Gath.ering or delivering defence information to Government.

915-----(Personation of) foreign diplomats. 954----Fa1se statements inﬂuencing foreign Govern- ment.

956----Consp-iracy to injure propertynf foreign Gov- ernment.

957--Possession of property in aid of foreign Gov- ernment. ' 960--Expedition against friendly nat.ion.

964----Delivering armed vessel to belligerents.

101?----Wrongfu11y using Government seals. 1542---Fa1se statement for passport.

l543----Forgery and false use of passport. 1544-----Misuse of passport.

2388----Activities affecting armed forces during War.

(13) 13, US. Code, article 1341 (Fraudulent mat"

tar) [Delivery may be Withheld).

(C) 18, US. Code, articles 1461 and 1463 (Obscene matter, information about contraceptives, and incite-

ment to heinous crimes) (Delivery may be withheld) [Indecent matter can be withdrawn from the mails under regulations to be made by the Post Master General].

((1) 39, U..S. Code (1960 Revision) Articles 4251, 4351, 4352, 4451, 4551 deal with "second class mail"1. Where any publication has been accorded second class mail privileges, the same shall not be suspended or annulled until a hearing is granted to the parties interested.

We may discuss the procedure regarding second class mail in the U.S.A. A "second class mailing" permit can be denied to a' publication by the Post Ofﬁce. When this is done, publication through the mails becomes prohibi-

tively costly. To be eligible for a second-class permit, a publication inust----

1.As to second class privileges, se£-- ,.,..

(i). be issued at stated intervals;

(ii) have a known ofﬁce;

(iii) be printed;

.Hamsgcn v. Esquire, (1946) 327 U.S. 146, which seems to limit the authority of Milwaukee Leader cars. (1920 255 U.S. 407.

ldﬁ

(iv) be for the dissemination of information of a public character or devoted to literature, the sciences, arts or some special industry';

(V) have a legitimate list of subscribers;

(vi) be designed primarily for non--advertising purposes'.

The second class permit cannot. however, be denied on the ground that the publication does not contribute to the public welfare. The Post,0fﬁce Department denied a second class mailing to the Esquire magazine, on the ground that the 'publication did not contribute to the pub- lic good and to the public welfare, but the Supreme Court' did not uphold this standard, and pointed out, that to withdraw this privilege from a publication simply because its contents seemed to one oﬂicial not good for the public would sanction withdrawal 'of the sect:-nd~class rate tomorrow from another periodical whose social or econo-

_tnic views seemed harmful to another official.

(e) 39, U.S.C. {I960 Revision} Article 4ﬂ05-«Where the Post Master General ﬁnds any person conducting lotteries or fraudulent schemes through the mail, he can stop such mail matter of those persons.

(f) Vol. 39, U.S.C. {I960 Revision)' Articles ¢l{}ﬂ6--~ 400'? empower the Post Master General to exclude the letters and mail matter of any person obtaining through mail, money for obscene, lewd, etc., articles. or depositing in mails information as to where such articles can be obtained. He can make an interim order for 2.0 days, and get it conﬁrmed by the U.S. District Court.

No'rs:--~The power to authorise temporary deten- tion of mail does not apply to mail addressed to pub- lishers of publications which have entry as second class matter. or to mail addressed to the agents of those publishers.

(h) Vol. 39 13.3.0. (1960 Revision].

Section 4008-' (added in I96-2) «---Mail matters, except sealed letters, originating. etc-., in a foreign country and determined by the Secretuy to the Treasury to be "Communist political pro- paganda" shall be detained By the Post Master General, and the addressee notiﬁed. If the ad- dressee does not desire delivery within :1 reason-

:.swa",1=s. s 0fdUnJ" # redo. (5:55). gizgsxswfﬁ om or mm ( X W I mm' Press' N"

2. Ffarrmegan v. E:4.:.I2'r.s'. (1945) 327 U13, 145, 153, I53, _ 3. For the law before 1960, see Geuhorn &'By 33¢ Ajrninigtfaffqg Law {=9-ﬁe). pages rs:-77:».

13'?

able time (not exceeding 61} days), it is disposed of as the Post Masher General directs. {i}_ Vol. 39, U.S.C. (1950 Revision-)----

Section 4DD1----(1)Mattcr the deposit of Whieﬁ in mails is punishable under the following sec- iions of Title 18 of U.S.C. is non--meilable.

(2) Non-majlable maizter is to be disposed oi'. as ihe Posi Master Genera] directs.

[The sections of Title 18 of referred to are»-

Title I8 U.S.C. Prat-iﬁbns 1'ej."err."d L) 18 I302 . . Lotteries.

I8 1341 . . Frauds 8: spimilcs.

18 I342 , . Fictitious name or address for unlawful business.

18 :46: . . Obscenity inciting abortion and ﬁlthy, vile and indeccnt (hing, etc. 18 1463 . . Obsccnc, eIc.. mane: oi cnvclopc.

I8 1714 . . Fcreign divorce information.

I8 1'; I 5 . . Firearms.

IS Ivrﬁ . . Tniurious articles -qpoisons, reptiic-.3, .;-12.). :8 17E'; . . Many matters, including matter advo-

cati_Ilg treason, insurrection Ur forcilzle resistance to any U.S. Jaw.

13 I718 _ I..ibellous matters on Wrapplcis, etc. Norr.:--Under 18 U.S.C., section 1715, no person other than an authorised officer of the Dead Letter Office or acting under a search-warrant can open :3 letter without the addressee-'s consent.

(j) It is statedl-3, that in the U.S.A. publications, {particularly those received from foreign countries) have been held up, if in the opinion of the ofﬁcialg concerned the publications showed a subversive intent.

(1-:) Mails sent from abroad to persons not regis- tered Lznder the Foreign Agents' Registration Act, 1938 {as amended) can be forfeited.

-..__.../._g

1. Wiggins, Freedom or Sec.-ccy (Oxford UUi\«'EfS1l_V' Press, New York}, ([956): Page 137.

2. «See also Casrberg, Freedom of Speech in the West (1959), (A1151 15: U"-M'-1) page 141, Iafﬁrring to Boise, "Scc1.uit}' ihrough Book Burning == {I955}, page 99.

138

(1) In times of War, special restrictions under the Espionage Act, 1917 come into play1--'-'.

(In) There is a provision prohibiting interception of telephonic communicationsa. But that is not rele- vant for the present purpose.

I. Masses Publirhing Co. v.Pa:ten, (1917) 244 Fed. 535: (August 1917 issue of a magazine excluded from the mails, being of a revolutionary and anti-war character).

2. Milwcmkee err. v. Bm-Ie.-can, (192m) 255 US. 407.

3. Sections 5m, and 605, and I308, Federal Communications Act (1934), 47 U.S.C. I51 ; See " Electronic Eavesdropping" (1964) Am. Bar Ass, Journal 540, 542 and 543.

APPENDIX XIV Liability for registered articles in Eng'ta.no'.

Under the (English) Post Ofﬁce Act, 1953 (1 & 2 Eliz. 2 c. 36), section 8(1)-(b), Post Ofﬁce Regulations may make provisions (inter ctlm) as to the "reg1strat1on" Of P°5t5*1 packets. Under section 8(2) of the (English) Post Office Act, 1953, the "registration" of a postal packet shall not render the Crown in any manner liable for the loss of the packets or contents thereof, save as provided in section 9 of the Crown Proceedings Act, 1947. Under section 9(2) of the Crown Proceedings Act, 1947, the Crown is liable to the extent speciﬁed in that section.

Relevant portions of these provisions are extracted below:--

Eactract of section 8 of the Post Oﬁice Act, 1953 (1 & 2 Elia. 2 c. 36).

"8(1) . . . . . . . . ..

(2) Save as provided in section 9 of the Crown Conditions Proceedings Act, 1947, the registration of or giving of 9; ""t'ﬁ1' a receipt for a postal packet, or the giving or obtain- gacE':s_ ing of a certiﬁcate of posting or delivery of a, postal acket, shall not render the Crown in any manner iable for the loss of the packet or the contents thereof."

.E:ctmct from section 9(2) and section 9(5) of the Crown Proceedings Act, 1947 (10 8: 11 Geo. 6 c. 44).

9. "(2) Notwithstanding the provisions of section Liability; in 13 of the Post Office Act, 1908, proceedings shall lie °".""°°"°°"

against the Crown under this sub-section in respect of p°_ml loss of or damage to a registered inland postal packet, not being a telegram, in so far as the loss or damage is due to any wrongful act done or any neglect or default committed by a person employed as a servant or agent of the Crown while performing or purport-

ing to perform his functions as such in relation to the receipt, carriage, delivery or other dealing with the packets:

Provided that . . . . . .

(C) the amount recoverable in any such pro-

ceedings shall not in any event exceed the maxi- mum amount which, under regulations made under section 81 of the Post Oﬂice Act, 1953 is available for compensating the persons aggrieved having regard to the fee paid in respect of the registration of the packet; and 139 ., 140

(d) the Crown shall not be liable under this ; . "sub-section in respect of any packet unless such 'conditions as arecprescribed by virtue of sub-

- section (5) of this section in relation to registered inland postal packets have been complied with in relation to that packet.

For the purposes of any proceedings under this , sub-section, it shall be presumed, until the contrary is shown on behalf of the Crown, that the loss of or damage to the Pixcket was due to some wrongful ac:

clone, orsorne neglect or default committed, by a per- son employed as a, servant or agent of the Crown while performing or purporting to perform his func- tions as such in relation to the receipt, delivery or other dealing with the packet.

(5) Regulations may be made under section 81 of the Post Office Act, 1953, for prescribing the condi--

tions to be observed for the purpose of this section in relation to registered under postal packets."

Thus, it appears that--

(a) the quantum of liability for "registered" postal packets in England would depend on the amount of fee paid, by virtue of section 9(2) (C) of the Crown Proceedings Act, 1947, which speaks of the "maximum amount".

(b) Further, the fee for "registration" in England is not a ﬁxed one (as in India), but a varying one.

(c) "Registration" of a postal packet in England. therefore, corresponds more to what is known as "insurance" under the Indian Post Office Acta, then to "registration" under the Indian Act'.

Engl_I.hT;1ere ppears to be no separate provision for " insurance ': in the 1.8 CI.

2. Section 30 to 33, Indian Post Office Act, 1898.

3. Section 28. Indian Post Ofﬁcc Act, :898.

GMGIPND--TSS-61 Law--25-2--197o--I,75c..

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Indian Post Office Act 1898