JUDGMENT : G.K. Misra, C.J. - The Petitioner was convicted u/s 292, Indian Penal Code and sentenced to R.I. for 18 months and to a fine of Rs. 500/-, in default to R.I. for a further period of 4 months. He was also convicted u/s 292-A(b) Indian Penal Code as inserted under Orissa Act 13 of 1962, but no separate sentence was awarded under this section. 2. Prosecution case may be stated in short. The Petitioner is the proprietor of a book stall under the name and style of "Capital Corner" located in Cuttack city. On search of his book stall on 4-6-1970, 30 obscene books (Exts. 3 to 32) were found from his possession for the purposes of sale. These books were seized under seizure list Ext. 1. P.w. 3, the Inspector of police, C.I.D. Crime Branch conducted the search and seizure and lodged the F.I.R. (Ext. 33). Petitioner's case is that he is not the owner or proprietor of the book stall and that during search he was passing on the road by its side and his signature on the seizure list was taken as a search witness. Both the Courts below accepted the prosecution story. 3. Mr. Patnaik for the Petitioner does not assail the concurrent finding that the books were obscene. I myself went through some of the books which contain naked pictures of men and women as to various poses and postures in which sexual intercourse is done. In some of the books stories regarding sexual behaviour have been narrated by freely using the names of male and female organs. The words are lascivious and exciting. Any young plastic mind would be easily influenced by sexual desire the moment he goes through these books. Mr. Patnaik therefore did not rightly assail the finding that the books were obscene. 4. He however seriously contended that the finding that the Petitioner was the proprietor of the bock stall is unsustainable. In paragraphs 7 and 8 of his judgment the learned Sessions Judge has elaborately discussed this topic. He has placed reliance on the evidence of the three police officers p.w. 3, 5 and 6, the statement of the accused u/s 342, Code of Criminal Procedure and the evidence of p.ws. 1 and 2 the search witnesses. Criticisms which Mt. In paragraphs 7 and 8 of his judgment the learned Sessions Judge has elaborately discussed this topic. He has placed reliance on the evidence of the three police officers p.w. 3, 5 and 6, the statement of the accused u/s 342, Code of Criminal Procedure and the evidence of p.ws. 1 and 2 the search witnesses. Criticisms which Mt. Patnaik levelled against the evidence of these witnesses have been fully discussed and met by the learned, Sessions Judge and it would be a mere effort in futility to repeat what the learned Sessions Judge has said. After having gone through the evidence of all these witnesses and the judgment of the learned Sessions Judge and after having heard Mr. Patnaik fully I am satisfied that the finding of the Courts below that the Petitioner was the proprietor of the book stall from where the obscene books were found on search is unassailable. 5. Being conscious of this difficulty the Petitioner had filed two applications for additional evidence u/s 428, Code of Criminal Procedure before the learned Sessions Judge. which had been rejected by him. A petition for additional evidence has been filed in this revision to the same effect. It is averred in the petition for additional evidence that during trial the Petitioner was not aware that records were being maintained by Madhusudan Matrumangal Kendra and Slsukalyan Samiti about the houses let out by it and that the counterfoils of the rent receipts were being preserved. Those records would show that the room from which the Petitioner was alleged to have been selling obscene literatures and from which he has been found to be selling was not at all in existence. If at all, those obscene literatures were being sold from the room in occupation of p.w. 1. As the Petitioner is a young man of 28 years of age, he should be given an opportunity to prove these records. It was further stated that two witnesses, Mahammad Anis resident of Kazibazar, Cuttack, and Harekrushna Mallik, resident of Choudhury bazar, Cuttack, should be examined as witnesses. It is alleged that Mahammad Anis, admittedly the salesman of the Petitioner, had stated before the police that the book stall had been taken on lease by the Novelty Store owned by one Sambhunath Karmakar, son-in-law of p.w. 1, and that Harekrushna Mallik is one of the seizure witnesses. 6. It is alleged that Mahammad Anis, admittedly the salesman of the Petitioner, had stated before the police that the book stall had been taken on lease by the Novelty Store owned by one Sambhunath Karmakar, son-in-law of p.w. 1, and that Harekrushna Mallik is one of the seizure witnesses. 6. Identical grounds had been taken before the learned Sessions Judge. He has thoroughly discussed every aspect of the matter in three paragraphs (paragraph 11, and two paragraphs numbered as 12). Section 428(1) Code of Criminal Procedure, 1898 runs thus: 428(1). In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons, and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court by a Court of Session or a Magistrate. Authorities were divergent on the scope and ambit of this S. Mr. Patnaik cited Ajit Kumar v. Emperor A.I.R 1946 Nag. 99, Akhtar. Hussain v. Emperor AIR 1925 Pat. 526, Vishnu Das v. Dr. Krishna Kumar A.I.R 1953 Hyd 145, Ukha Eolhe v. State of Maharashtra AIR 1963 S.C. 1531 and Rajeswar Prasad v. State of West Bengal AIR 1965 S.C. 1887 . In paragraph 9 of Rajeswar Prasad v. State of West Bengal AIR 1965 S.C. 1887 , their Lordships observed thus: Commentaries upon the Code are fun of cases in which the powers u/s 428 were excised. We were cited a fair number at the hearing. Some of the decisions suffer from the sin of generalization and some others from that of arguing from analogy. The facts in the cited cases are so different that it would be futile to embark upon their examination. We might have attempted this, if we could see some useful purpose but we see none. In view of this observation it is unnecessary to refer to the other decisions cited by Mr. Patnaik. It would be sufficient to concentrate on the principle evolved in this decision. In paragraph 8 the ambit of the aforesaid section was explained thus: Since a wide discretion is conferred on appellate Courts. the limits of that Courts' jurisdiction must obviously be dictated by the exigency of the situation and fair play and good sense appear to be the only safe guides. In paragraph 8 the ambit of the aforesaid section was explained thus: Since a wide discretion is conferred on appellate Courts. the limits of that Courts' jurisdiction must obviously be dictated by the exigency of the situation and fair play and good sense appear to be the only safe guides. There is no doubt, some analogy between the power to order a retrial and the power to take additional evidence. The former is an extreme step appropriately taken if additional evidence will not suffice. Both actions subsume failure of justice as a condition precedent. There the resemblance ends and it is hardly proper to construe one section with the aid of observations made by the is Court in the interpretation of the other section. 7. It was made clear in that decision that the power has to be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must not however be received in such way as to cause prejudice to the prosecution or the accused. As for example, it should not he received as a disguise for retrial or to change the nature of the case. The order must not ordinarily be made if the prosecution or the defence had a fair opportunity and had not availed of it unless the requirement of justice dictated otherwise. 8. The aforesaid principle is to be applied to the facts of this case. In his statement u/s 342, Code of Criminal Procedure the Petitioner stated that after the criminal case was filed against him he bad the occasion to make enquiry about the ownership of the book stall. Clearly the ownership in the shop house where the book stall was located did not belong to the Petitioner. The issue was very simple from the start. The Petitioner knew that the charge against him was that obscene books were found in the book stall in his possession. In cross-examination of the prosecution witnesses he had taken the positive stand that he was not the owner and the proprietor of the book stall He could have therefore made all possible enquiries to establish that p.w. 1 was the tenant in respect of the room where the book stall was located under Madhusudan Matrumangal Kendra and Sisukalyan Samiti. In cross-examination of the prosecution witnesses he had taken the positive stand that he was not the owner and the proprietor of the book stall He could have therefore made all possible enquiries to establish that p.w. 1 was the tenant in respect of the room where the book stall was located under Madhusudan Matrumangal Kendra and Sisukalyan Samiti. Similarly it was open to him to have examined Mahammad Anis and Harekrushna Mallik as defence witnesses. It is not in the interest of justice to take additional evidence in a case of this nature. The reasons given by the learned Additional Sessions Judge are fully acceptable and need not be repeated. The application for taking additional evidence is rejected. 9. Mr. Patnaik lastly contended that the sentence of 18 months and imposition of Rs. 500/- as fine is very heavy and the accused being a young man, a lenient punishment should be imposed. The learned Government Advocate placed reliance on Uttam Singh Vs. The State (Delhi Administration) wherein their Lordships observed that offences u/s 292, Indian Penal Code of corrupting the internal fabric of the (sic) have got to be treated on the same footing as the cases of food adulterator and leniency cannot be shown by the Court in matter of punishment. In that case the accused was a married man and was 36 years of age. 10. Section 292. Indian Penal Code was amended in 1969 by the Indian Penal Code (Amendment) Act, 1969 (Central Act 36 of 1969). Initially the sentence was imprisonment of either description for a term which may extend to 3 months or with fine or with both. After the amendment, the offence shall be punished on first conviction with imprisonment of either description for a term which may extend to 2 years and with fine which may extend to Rs. 2000/- and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to 5 years and also with a fine which may extend to Rs. 5000/-. The amendment was given to be a reason by their Lordships why the accused in such offences cannot be leniently dealt with. 11. 2000/- and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to 5 years and also with a fine which may extend to Rs. 5000/-. The amendment was given to be a reason by their Lordships why the accused in such offences cannot be leniently dealt with. 11. Taking into consideration the fact that it is the first offence and the accused is a young refugee of 28 years of age who is trying to rehabilitate himself, I reduce the sentence of imprisonment from 18 months R.I. to 3 months R.I. The sentence of fine and the default sentence in lieu thereof would stand. 12. Subject to the aforesaid modification on the question of sentence, the criminal revision is dismissed. Final Result : Dismissed