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1989 DIGILAW 400 (KER)

Moidu v. State of Kerala

1989-09-20

THOMAS

body1989
Judgment :- 1. Petitioner was convicted by the trial court for the offence under S.292(2)(a) of the Indian Penal Code and was sentenced to undergo imprisonment for two years and to pay a fine of Rs. 1,000/-. The Sessions Court, in appeal, confirmed the conviction, but reduced the sentence to rigorous imprisonment for one year and fine of Rs. 1,000/-. 2. The Circle Inspector of Police, Tellicherry caught the petitioner around 7p.m. on 25-10-1986 with two video cassettes (M.O.1 series). Those cassettes contained tapes for displaying obscene scenes (such cassettes are called blue films). Petitioner was arrested and the cassettes together with the bag in which they were kept were seized. 3. There is no dispute that M.O.1 series contain tapes for displaying obscene scenes. There is no dispute that such cassettes are not objects used for appealing to the prurient interest of the viewers. 4. Learned counsel for the petitioner raised the main argument that mere possession of obscene objects is not sufficient to attract the offence under S.292(2) (a) of the IPC. The clause says that "whoever 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 obscene object. Whatsoever shall be punished ". The words "or has in his possession" are to be read along with the words "for purposes of sale, hire etc." There can be do doubt that mere possession of any obscene object is not sufficient to visit the person with penal consequences under S.292(2)(a) of the IPC. 5. Learned Sessions Judge has observed that the possession of any obscene object will prima facie be sufficient to attract the provisions of S.292. "A person who stands at a public place with two cassettes kept in a bag would certainly have remained there for the purpose of distributing or circulating the same to other individuals". The court may presume the existence of any fact which it thinks likely to have happened regard being had to human conduct in their relation to the facts of the particular case. A person who is in possession of video for blue films can be presumed to be interested either in seeing them displayed or in selling them or distributing them. A person who is in possession of video for blue films can be presumed to be interested either in seeing them displayed or in selling them or distributing them. It cannot be said that the only presumption drawable from possession of such video cassettes is that the possessor intends to sell them or circulate them. Unless there is something more, at least a circumstance, the court cannot come to the conclusion that the person possessed the video cassettes for the purpose of sale or circulation and not for seeing them displayed for himself. For the aforesaid reasons, I cannot sustain the conviction and sentence passed on the petitioner. Hence I allow this revision and set aside the conviction and sentence. I acquit the petitioner and is directed to be set at liberty.