IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 30TH MAY 2008 / 9TH JYAISHTA 1930 Crl.Rev.Pet.No. 817 of 2000() ----------------------------- CRA.325/1998 of SESSIONS COURT, THRISSUR .................... REVN. PETITIONER/APPELLANT IN CRL.A.325/98: -------------------------------------------------------------------- KASIM, AGED 57 YEARS, S/O. KUNJAIDRUMAN, RESIDING AT POOVILAKATH HOUSE, POOTHOLE, THRISSUR DISTRICT. BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS RESPONDENT/RESPONDENT IN CRL.A.NO.325/98: --------------- STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.817 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of May 2008 ORDER Petitioner was prosecuted for the offence punishable under Section 3(1) read with Section 6(1) of the Young Persons (Harmful Publications) Act, 1956 (for short 'the Act'). 2. The gist of the charge against the petitioner was that he had kept M.O.1 and M.O.2 (series) books for sale in his shop which, according to the prosecution, were harmful publications falling within the ambit of Section 2(a) of the Act. The books were seized by the police after a search made at the shop premises at about 6.30 A.M on March 19, 1996 and charge sheet was laid against the petitioner accordingly. 3. The trial court, after considering the oral and documentary evidence on record, held that the publication was “detrimental to public morals and calculated to produce a pernicious effect in depraving and debauching the minds of the persons into whose hands it may come”. Resultantly, the petitioner was found guilty and convicted and sentenced Crl.R.P.No.817 OF 2000 :: 2 :: under Section 3(1) read with Section 6(1) of the Act to undergo rigorous imprisonment for one year. 4. The learned Sessions Judge in appeal confirmed the order of conviction. However, the sentence was modified and reduced and the petitioner was directed to suffer rigorous imprisonment for six months and to pay a fine of Rs.5,000/- and in default to undergo rigorous imprisonment for a further period of six weeks. 5. Section 2 of the Act which defines “harmful publication” is extracted hereunder: (a) “harmful publication” means any book, magazine, pamphlet, leaflet, newspaper or other like publication which consist of stories told with the aid of pictures or without the aid of pictures or wholly in pictures, being stories portraying wholly or mainly-- (i) the commission of offences; or (ii) acts of violence or cruelty; or (iii)incidents of a repulsive or horrible nature; in such a way that the publication as a whole would tend to corrupt a young person into whose hands it might fall, whether by inciting or encouraging him to commit offences or acts of violence or cruelty or in any other manner whatsoever. Crl.R.P.No.817 OF 2000 :: 3 :: 6. “Young person” as defined in Section 2(c) of the Act means a person under the age of twenty years. Section 4 of the Act empowers the State Government to declare any publication as a “harmful publication” and forfeit every copy thereof to the Government through an order to be notified in the official Gazette stating the grounds for the order. Section 6 empowers the State Government to authorize any Police Officer or any other officer to seize any harmful publication. Any Magistrate of First Class may authorise by warrant, any Police Officer not below the rank of Sub Inspector to enter and search any place and seize any publication found in such place if it is found to be a harmful publication. 7. A perusal of the definition of “harmful publication” extracted above will show that any publication like a book, magazine, pamphlet, leaflet, newspaper, etc. which contains stories portraying wholly or mainly the commission of offences or acts of violence or cruelty or incidents of a repulsive or horrible nature that would tend to corrupt a young person” shall fall within the ambit of the above definition. Of course the publication as a whole must be such that it would tend to corrupt Crl.R.P.No.817 OF 2000 :: 4 :: a young person into whose hands it might fall, whether by inciting or encouraging him to commit offences or acts of violence or cruelty or in any other manner whatsoever. 8. The prosecution case was that M.O.1 and M.O.2 (series) books (80 and 35 in number respectively) were seized from the shop of the petitioner. It is seen from the evidence on record that the books contained the description of “sexual acts”. PW3 and PW4 in their oral testimony deposed before the court that they had conducted the search on receipt of information that the petitioner had kept obscene books in his shop. PW4, Circle Inspector further stated in his deposition that he had found two bundles containing obscene books. The evidence of PW3, the Police Constable, who accompanied the Circle Inspector, was also on similar lines. PW3 ofcourse had also mentioned the titles of the books, namely, 'Sundari' and 'Viswasundari'. Reference has been made to the oral testimony of Pws3 and 4 only to indicate that M.O.1 and M.O.2 (series) did not apparently contain any materials which “portrayed commission of offence, acts of violence or cruelty or incidents of repulsive or horrible nature”. 9. There is no gain saying the fact that sexual act can be Crl.R.P.No.817 OF 2000 :: 5 :: described in a repulsive manner. But there is nothing in the evidence of PW3 and PW4, the official witnesses, that the 'so called' harmful publications contained any stories or depictions falling within the definition of harmful publication. What had been stated by the official witnesses was only that M.O.1 and M.O.2 (series) books seized from the shop of the petitioner were obscene. The trial court as well as the appellate court have proceeded on the footing that the contents of the book would have corrupted the mind of the young people. No portion of the contents of the books had been referred to in the order, either by the trial court or the appellate court which, according to them, would have depraved or debased the young mind. 10. Any book or magazine, the contents of which are allegedly obscene or pornographic, cannot be brought into the dragnet of “harmful publication” as defined under the Act, unless such contents are so abhorrently distasteful and unabashedly reprehensible. As noticed already, “a harmful publication” as defined under the Act shall consist of stories, told with or without aid of pictures, portraying commission of offences or acts of violence or cruelty or incidents of a repulsive or horrible Crl.R.P.No.817 OF 2000 :: 6 :: nature. Even assuming some pornographic material may be repulsive under certain circumstances, it cannot be said in general terms that such publications will incite or encourage a young person to commit offences or to indulge in acts of cruelty. Sexual perversion can be a state of mind; conditioned by various factors - both psychological and physiological-like suppressed libido, social taboos, stress induced inhibitions etc. It can be the by-product of any of those or a combination of several other libido related phenomena. 11. Undoubtedly, a perverted mind can plunge sublime sex into the abyss of revulsion and denigrate it in to a horrendous and meaningless physical abuse. But still it cannot be said that any “so called” obscene book or publication will fall in the category of “harmful publication” as defined under the Act merely for the reason that it describes the act of sex with or without the aid of pictures. Gone are the days when Lady Chatterly's Lover and Lolita had incurred the wrath of puritans and conservatives. 12. Before I conclude, it will be apposite to take a glance at the Statement of Objects and Reasons of the Act, 1956 Crl.R.P.No.817 OF 2000 :: 7 :: which in my view will put the entire issue in its proper perspective. Statement of Objects and Reasons “Pictorial and other publications containing stories of the glorification of crime, violence and vice, known as “horror comics”, are being circulated in India in large quantities. The dissemination of such stories is likely to encourage anti-social tendencies among children and exert a harmful incluence on young persons. So far as the import into India of pictorial publications is concerned the Government of India have imposed a ban under the Sea Customs Act, 1878 (VIII of 1878). The object of this Bill is to prohibit the production in India of such literature or of any variant and its circulation within India.” For the foregoing reasons, I have no hesitation to hold that the order of conviction and sentence passed against the petitioner under Section 3(1) is totally misconceived and unsustainable. Therefore, the petitioner is found not guilty. The order of conviction and sentence is set aside. He is acquitted. Revision petition is allowed. (A.K.BASHEER, JUDGE) jes/cl Crl.R.P.No.817 OF 2000 :: 8 :: A.K.BASHEER, J. Crl.R.P.No.817 OF 2000 ORDER 30th May 2008 Crl.R.P.No.817 OF 2000 :: 9 :: A.K.BASHEER, J. Crl.R.P.No.817 OF 2000 ORDER Crl.R.P.No.817 OF 2000 :: 10 :: 30th May 2008