NARAYANAN v. STATE OF KERALA — 1970 DIGILAW 123 (KER)

Judgment :- 1. The question for consideration in these Revision Petitions is whether the Proprietor and Manager of a Printing Press who had nothing to do with the authorship of certain obscene literature and the editing and circulation of it are liable to be convicted under S.292 (a) of the Indian Penal Code and S.3 (1) (a) and (b) of the Young Persons (Harmful Publications) Act, for short, the Harmful Publications Act. 2. The Revision Petitioners are the second and third accused in C. C. Nos. 110 and 111 of 1969 on the file of the District Magistrate, Quilon. The accused persons are the same in both the cases. While the third accused in the two cases has filed Crl, R. Ps. 150 and 151 of 1970 the second accused has filed Crl. R. Ps. 152 and 153 of 1970. 3. The convictions were under S.292 (a) of the Penal Code and S.3 (1) (a) and (b) of the Harmful Publications Act. The second and third accused were each sentenced in each case to undergo simple imprisonment for one month for the offence under the Penal Code and to pay a fine of Rs. 200/-and in default to undergo simple imprisonment for one month for the offence under the Harmful Publications Act and those convictions and sentences were confirmed in appeal by the Additional Sessions Judge, Quilon. 4. The third accused is the Proprietor of a press called S. N. V. Press at Kottarakkara. The second accused is the Manager of that press. The first accused is the Editor, Printer and Publisher of a bi-weekly called "Kochuseetha". C. C. Nos. 110 and 111 of 1969 related to certain stories and news items in the issues dated 20121968 and 1511969 of the bi-weekly. The first accused was convicted in both the cases on his plea of guilty. 5. The accounts of the S. N. V. Press produced in the case show that for printing the bi-weekly charges were paid to the press by the first accused. Profit or loss on account of the sales of the bi-weekly was to be enjoyed or sustained as the case may be by him alone and not by the second or third accused who had no interest whatsoever in the editing and publishing of it. The Press in printing it was only doing job-work. 6. Profit or loss on account of the sales of the bi-weekly was to be enjoyed or sustained as the case may be by him alone and not by the second or third accused who had no interest whatsoever in the editing and publishing of it. The Press in printing it was only doing job-work. 6. S.292 of the Penal Code was enacted in pursuance of the international convention regarding suppression of the circulation and traffic in obscene publications. The object is plain enough. There is bound to be an erosion of moral standards if one is constantly exposed to literary and visual materials which over-emphasise sexuality and brutality. All civilised societies need legal ban on obscenity for protecting and preserving the moral values on which there is a concensus. Although such is the object of the convention, there is as yet no empirically reliable information on what effect, if any, obscenity or pornography has on normal adults. It has also to be remembered that though freedom of speech and expression which includes freedom of the press is guaranteed by the Constitution, reasonable regulation of it in the interest of morality is permitted and on that ground S.292 of the Penal Code was held in Ranjit D. Udeshi v. State of Maharashtra AIR. 1965 SC. 881 to be constitutionally valid by the Supreme Court. But the provisions in S.292 of the I. P. C, and S.3(1) (a) and (b) of the Harmful Publications Act as they entail penal consequences, in interpreting them I ought to exercise a special care to see that no one is brought within them who does not come within its express language. 7. With the above ideas in mind I shall now read S.292 (a) of the I. P. C. and S.3 (1) (a) and (b) of the Harmful Publications Act. "292. Whoever (a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obsence object whatsoever, .......................................................................................................................................................................................... . .shall be punished ". "3. "292. Whoever (a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obsence object whatsoever, .......................................................................................................................................................................................... . .shall be punished ". "3. (1) If a person (a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation any harmful publication, or (b) for purpose of sale, hire, distribution, public exhibition or circulation, prints makes or produces or has in his possession any harmful publication or he shall be punishable It ................................................ . 8. S.3 (1) (a) of the Harmful Publications Act and the first part of S.292 (a) of the Penal Code take within them a person who sells or lets to hire or exhibits or circulates obscene objects. S.3 (1) (b) of the Harmful Publications Act and the second part of S.292 (a) of the Penal Code take within them a person who makes or produces or has in his possession any such object provided it is for purpose of sale or hire or distribution or public exhibition or circulation. The S. N. V. Press when it printed the bi-weekly in the instant cases was doing only job-work. It is the Editor and Publisher who sells or hires or distributes or exhibits or circulates in other manner the bi-weekly. Hence persons like the second and third accused are not embraced in S.292 (a) of the Penal Code or S.3 (1) (a) and (b) of the Harmful Publications Act. 9. For the second part of S.292 (a) of the Penal Code to apply the person concerned should be the maker or producer of the bi-weekly or one in possession of it. The maker of an article or a story or news item is the author or composer of it. The producer of it is the person who brings it before the public for consideration or consumption. The press where the mechanical work of printing alone was done for remuneration has nothing to do with the authorship of the offending article or story or the news item or its production. That is also clear from a comparison of the words employed in S.292 (a) of the Penal Code and S.3 (1) (b) of the Harmful Publications Act. The press where the mechanical work of printing alone was done for remuneration has nothing to do with the authorship of the offending article or story or the news item or its production. That is also clear from a comparison of the words employed in S.292 (a) of the Penal Code and S.3 (1) (b) of the Harmful Publications Act. Whereas the word "prints" is expressly used in S.3 (1) (b) of the Harmful Publications Act besides the words "makes or produces" that word is significantly omitted in the second part of S.292 (a) of the Penal Code. By implication it has to be taken that printing was not intended to be included in the expression'makes or produces' as used in the second part of S.292 (a) of the Penal Code. 10. No doubt, copies of the offending literature were in the press after they were printed but they were there only till they were handed over to the first accused who got delivery of the same on payment of the printing charges. The custody of the press in the meanwhile of those copies was not for sale or hire or distribution or public exhibition or circulation. 11. The person intended by S.3 (1) (b) of the Harmful Publications Act who does printing is really the person at whose request and for whom the printing is made. I cannot believe that it was the intention of the legislature to bring within the Section the composer, proof reader and others who were responsible only for bringing forth the printed material out of the press. The relevant issues of the bi-weekly in the present case describe the first accused as its Editor, Printer and Publisher although it was printed in the press belonging to the third accused. The responsibility for the printing of the bi-weekly is with the first accused and not with the second or third accused. The express language of the relevant sections do not take in the Proprietor and Manager of the press where the printing was done. 12. Further mens rea is absent here in the case of the Proprietor and Manager of the press which merely did job-work. In Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC. The express language of the relevant sections do not take in the Proprietor and Manager of the press where the printing was done. 12. Further mens rea is absent here in the case of the Proprietor and Manager of the press which merely did job-work. In Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC. 881, a decision of the Supreme Court it was held that the offence contemplated by S.292 of the Penal Code could not be complete unless it was shown that the accused had a guilty intention. Of course S.3 (1) (a) and (b) of the Harmful Publications Act, which is a special enactment, does not specifically refer to mens rea being an ingredient of the offence punishable under it. But unless a statute expressly or by necessary implication rules out mens rea as an ingredient of the offence none should be convicted for offences under that statute without proof of a guilty mind. The object of S.292 (a) of the Penal Code and S.3 (1) (a) and (b) of the Harmful Publications Act was to prevent circulation of and traffic in obscene publications. In The Crown v. Mir Mumtaz Ali (1905) VI Punjab Law Reporter 588 the question that arose for consideration was whether the owner of a press where the book containing obscene matter was printed was liable to be punished under S.292 of the Penal Code. The proprietor of the press was convicted under that section by the District Magistrate and sentenced to pay Rs. 25/- as fine. When it came to the notice of the Sessions Judge he reported the matter to the Chief Court of Punjab re-commending that the conviction and sentence be set aside as there was nothing to show that the proprietor had knowledge about the printing of the book. The Chief Court agreed with the views of the Sessions Judge and accepting the reference set aside the conviction and sentence. In C. T. Prim v. State AIR. 1961 Cal. 177 Bhattacharya, J. with whom Debabrata Mookerjee, J. agreed said this: "It has been argued on behalf of the State that mere possession of any obscene book for sale is an offence and that by implication mens rea has been ruled out. But possession connotes conscious possession and in that sense it cannot be argued that mens rea or guilty mind has been dispensed with. But possession connotes conscious possession and in that sense it cannot be argued that mens rea or guilty mind has been dispensed with. Let us take an extreme case. A blind person may be used as a tool for the purpose of selling obscene books. Unless he knew what type of books he was entrusted with for sale or unless he knew that he was being used as a disseminator of obscene literature, he should not be found guilty." The view that mens rea is a necessary constituent of the offences under S.292 (a) of the Penal Code and S.3 (1) (a) and (b) of the Harmful Publications Act appears to me to coincide not only with the terms of those Sections but with reason and fairness as well. 13. There is no evidence direct or circumstantial in this case that the second and third accused had any the least intention to circulate in any manner obscene literature when the bi-weekly was printed in the press. Their only intention was to do the job-work of printing, a mere mechanical work. The requisite mens rea is also wanting in this case. That being the position the second and third accused are not guilty of the offences charged against them. Therefore these Revision Petitions are allowed and their convictions and sentences in both the cases, C.C.110 and 111 of 1969, are set aside and they are acquitted. Fine, if paid, shall be refunded to them.