trrrAM SINGH v.

THE STATE (DELHI ADMINISTRATION)

March 21, 1974

(P. K. GosWAMI AND R. S. SARKARIA, JJ.J

Pelral Code"-S: 2S2--Sale of playing cards with lt1rid/y obscene 11ake,1 pic1urea-Sentenc_e If severe-If could be released under tlie Probation of ofien .. ders Act, 1958.

The appellant was convicted under s. 292 I.P.C. and sentenced to rigorous imprisonme!lt and fine for selling a packet of playing cards portraying on the revC".rse lundly obsccno naked pictures of men -and women in pamographic sexual_ postures. The conviction and sentence was affirmed by the High Court.

It as contended that the sentence Wa.$ very severe on the ground that only one single offence had been established and secondly that he might be released under the Probation of Offenders Act, 1958.

Dismissing the appeal.

HELD :-(i) The appeUant cannot be dealt with leniently in this case. The amendment of section 292 I.P.C. by Act XXXVI of 1969, apart from enlarging the scope of the exceptions. enhanced the penalty. By the amendment the dicho_ tomy of penal treatment was introduced for dealing with the first offenders and the subsequent offenders. Even in the case of first conviction the accused shall be punished with imprisonment. The intention of the legislature was, therefore, mado clear by the amendment of 1969 in dealing with this type of offenders v:hich corrupt the minds of people to whom these objectionable things can easily reach.

The corrupting influence of these pictures is. more likely to be upon the younger generation who has got to be protected from being an easy prey to these libidinous appeals upon which this illicit trade is based. [724A-BJ

(ii) The appellant cannot be released under s. 4 of the Probation of Offenders Act bavin&' regard to the nature of the offence and the potential danger of th.e appeUanrs activity in the nefarious trade affecting the morals of society, pa:t1cularly the young. These offences have got to be treated on the same footing as the cases of food adulterators. (724-GJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 49 of 1974.

From the Judgment and Order dated the 1st October, 1973 of the f Delhi.High Court at New Delhi in Criminal Appeal No. 170 of 1972. / Gopal Singh and M. S. Grpta, for the appellant.

R. N. Sachthcy, for the respondent.

The Judgment of the Court was delivered by

GOSWAMI, J.- This appeal by special leave is limited only to the G question of sentence in a conviction of the accused-appellant under section 292, Indian Penal Code. The accused has a shop at Kishan Ganj, Delhi. It is no more in controversy that on 1st February, 1972, the accused sold a packet of playing cards portraying on the reverse luridly obscene naked pictures of men and women in pomograpb~ sexual postures to P.W. 1. This sale was arranged by the police Sub-Inspector

(P.W. 4) oit receipt of secret infchnation about the acCQ8Cd uttering H these obscene pictures. On. getting a signal from the purchaser a raid was made in the accused's shop when two more pact.ets. Qf Sllcil

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UTTA'[ Sr.;"GH "· DELHI AD~IN; (Goswami,. 1.) 723

obscene cards were also recovered in addition to the packet already sold to. P.W. L The ten-rupee note, which was the price of the said set of playing cards aiid which had been earlier given by the Sub Inspector to P. W. I, was also recovered from the person of the accused. · ·

At the trial the accused was convicted under. section 292, Indian Penal Code and sentenced to six months' rigorous imprisonment and to a fine of Rs. 500/·, in default further rigorous imprisonment for three months. The High Court affirmed the conviction as well as the sentence.

Hence this appeal. . .

The. learned counsel for the appellant submits that the sentence fr very severe on the ground that only one single sale has been est; iblishcd in this cas.c and also only three packets of cards were recovered fro01

the accused.

He further submits that the .accused is entitled to be released on probation under section 4 of the prelJation of Offenders Act, 1958. . - '

Since obscenity of the playing cards recovered from the aciised is not challenged and for the ma_tter of that the conviction under section 292, J.P.C., it is necessary even for the purpose of appreciating the submission on the ground of sentence tC1 read the definition of obscenity under that section to keep in mind what is interdicted under the law. Section 292(1) reads as follows:- ·

292(1) :"For the purpose of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation or figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest ci'. if its effect, or (where it comprises two or more items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it".

'Sub-section (2) of section 292 is the penal provision which runs as follows:- ·

292 (2} : "Whoeversells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distri bution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever .... * *· * * * * shall be punished on first conviction with imprisonment of either description for a term which may extend to two years. and with fine which may extend to two thousand rupees, and, in the event of a secolld or subsequent convic- tion, with imprisonment of either description for a term which may extent to five years, and also with fine which may extend to five thousand rupees".

SUPREME COURT REPORTS

[1974) 3 S.C.R,

There are certain exceptions to this section with which we are not concerned. This section was amended by Act XXXVl of 1969 when apilrt .froni enlarging the scope of the exceptions, the penalty was en ha need which was earlier up to three months or with fine or with both.

By the amendment a dichotomy of penal treatment was introduced for dealing with the first cifenders and the subsequent 'offenders. Jn the case of even a first oonviction the accused shall be punished with im~ prisonment of either description for a term which may extend to two years and with fine which may extend to two thousand rupees. The intention cl. the legislature is, therefore, made clear by the amendment in 1969 in dealing with this type of offences which corrupt the minds .of people to whom these objectionable things can easily reach and it need not be emphasised that the corrupting inlluence of these pictures is more likely to be upon the younger generaticri who has got to be protected from being easy prey to these libidinous appeals upon which this illicit trade is based. We are, therfore, not prepared to accept the submission of the learned counsel to deal with the accused leniently in lhis case.

With regard to the plea cif the learned counsel on the £COl'e of section 4 of the Probation of Offenders Act, we may read the section :

Power to Court to release certain offenders 011 probation of good conduct : 4 (1) "When any person is found guilty <if having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opimon that, having regard to the circum

stances of the case including the nature of the defence and the character of the offender, it is expedient, to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a

bond,_ with or without sureties, to appear and receive sentence when called upon during such P!'riod, not exceeding three years, as the Court ma, y direct, and in the meantime to keep the peace and be of good behaviour" .

• • The accused is married and is said to be 36 years of ago. Having regard to the circumstances of the case and the nature of the offence and the potential danger of the accused's activity in this nefarious trade affecting the morals of society particularly of the young, we are not prepared to release him under section 4 of the Probation of Offenders Act. These offences of corrupting the intornal fabric of the mind have got to be treated on the same footing as the cass of food adulterators and we are not prepared to show any leniency. The appeal is, therefore, rejected. The accused shall surrender to his bail to serve the sentence.

P. B. R.

Appeal dismissed.