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1988 DIGILAW 129 (KER)

JOSE v. STATE OF KERALA

1988-03-04

SANKARAN NAIR

body1988
Judgment :- 1. Courts below found petitioner guilty of the offence punishable under S.292 (2) (a) IPC. On the evening of 24-8-1982, Pw 6 Sub Inspector of Police raided the premises where petitioner was residing, and seized obscene books, about 900 in number. Under Ext. P4 search list, these were taken into custody. Seizure Mahazar was attested by witnesses and petitioner himself. 2. Another person was also charge sheeted, tried and convicted. He is undergoing imprisonment. Prosecution case is that, books authored by petitioner, were printed at the press of the other accused. 3. Courts below, relying on the search and seizure, found that the books were stored in the premises, which were in the use and occupation of petitioner. Learned counsel challenged the search and seizure. According to counsel, search was on 24-4-1982 and Ext. P3 search memo reached the court only on 20-9-1982. There is delay in the search memo reaching the court, and this renders the search illegal, according to counsel. Reliance was placed on the decision reported in State of Rajasthan v. Rehman (AIR 1960 SC 210), to support the contention. Notwithstanding the delay, in Ext. P3 reaching the court, courts below acted on the evidence gathered by search and seizure. It was noticed that, though Ext. P3 reached the court almost after a month, Ext. P4 search list and First Information Report reached the court on the 26th of April, 1982 itself. Courts below were right in thinking that there was nothing suspicious about the search and seizure, in view of the fact that, the search list and First Information Report reached the court a day after the search. Learned Public Prosecutor invited my attention to Assistant Collector of Central Excise v. Vasanthakumar (1988(1) KLT 92). A Division Bench of this court took the view that, delay in the search memorandum reaching the court by itself was no ground for rejecting the evidence afforded by the search and seizure. The effect of violation of S.165 of the Code was considered by a constitution bench of Supreme Court in Pooran Mal v. Director of Inspection (AIR 1974 SC. The effect of violation of S.165 of the Code was considered by a constitution bench of Supreme Court in Pooran Mal v. Director of Inspection (AIR 1974 SC. 348): "So far as India is concerned its law of evidence is modelled on the rules of evidence which prevailed in English law, and courts in India and in England nave consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure It would thus be seen that in India, as in England, where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in" the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out". Test of admissibility of evidence lies in relevancy, unless there is a prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure will not be shut out. The same view has been taken in Dr. Partap Singh and another v. Director of Enforcement and others (AIR 1985 SC 989). 4. Search list and First Information Report reached the court promptly and thus the evidence is not tainted or suspicious. There is no reason why the evidence of pw. 6 should not be believed. 5. It was contended by counsel that mere possession of obscene books, is not an offence. The view taken by Courts below, according to counsel, is that, such possession by itself is an offence. In the instant case, as many as 900 copies of obscene books were found in the possession of petitioner. True, there is no evidence that he sold or distributed the books. But, even without that, possession of books of identical nature in large quantities raises an inference that, such were intended for sale or distribution. Nature of the article, the quantity and attendant circumstances can raise an inference regarding the purpose for which it was stored. I am of opinion that such large quantities were stored by petitioner consciously, not for the sake of storing, but for selling or distributing. Petitioner is, therefore, guilty of the offence under S.292 IPC. 6. It was not contended, and rightly too, that the books were not obscene. They are extremely obscene, and perhaps could not be more obscene. The phraseology is crude and ideas more so. 7. Petitioner is, therefore, guilty of the offence under S.292 IPC. 6. It was not contended, and rightly too, that the books were not obscene. They are extremely obscene, and perhaps could not be more obscene. The phraseology is crude and ideas more so. 7. Coming to the question of sentence, it is certainly not excessive. Distributing obscene material must be viewed seriously. One may perhaps have a right to choose his reading material. But, to corrupt the minds of the young or the adolescents, is certainly a serious offence. Conviction and sentence are confirmed, and Revision Petition is dismissed. Dismissed.