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PETITIONER: UTTAM SINGH

       Vs.

RESPONDENT: THE STATE (DELHI ADMINISTRATION)

DATE OF JUDGMENT21/03/1974

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. SARKARIA, RANJIT SINGH

CITATION:  1974 AIR 1230            1974 SCR  (3) 722  1974 SCC  (4) 590

ACT: Penal  Code--S.  292--Sale  of playing  cards  with  luridly obscene  naked  pictures--Sentence if  severe--If  could  be released under the Probation of offenders Act, 1958.

HEADNOTE: The  appellant  was  convicted  under  s.  292  I.P.C.   and sentenced  to rigorous imprisonment and fine for  selling  a packet  of playing cards portraying on the  reverse  luridly obscene  naked  pictures of men and  women  in  pornographic sexual  postures.  The conviction and sentence was  affirmed by the High Court. It  was contended that the sentence was very severe  on  the ground that only one single offence had been established and secondly  that he might be released Linder the Probation  of Offenders Act, 1958. Dismissing the appeal, HELD  :-(i) The appellant 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  dichotomy  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,  made clear by the amendment of 1969  in  dealing with  this  type  of offenders which 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-B] (ii)  The  appellant cannot be released under s.  4  of  the Probation  of Offenders Act having regard to the  nature  of the  offence  and the potential danger  of  the  appellant’s activity  in  the nefarious trade affecting  the  morals  of society, particularly the young.  These offences have got to be  treated  on  the  same footing ,is  the  cases  of  food adulterators. [724-G]

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 49 of 1974. From  the Judgment aid Order dated the 1st October, 1973  of the Delhi High Court at New Delhi in Criminal Appeal No. 170 of 1972. Gopal Singh and M. S. Gupta, for the appellant. R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by GOSWAMI, J.- This appeal by special leave is limited only to the  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  pornographic sexual  postures  to P.W. 1. This sale was arranged  by  the police   Sub-Inspector  (P.W.  4)  on  receipt   of   secret information   about  the  accused  uttering  these   obscene pictures.  On getting a signal from the purchaser a raid was made in the accused’s shop when two more packets of such 723 obscene cards were also recovered in addition to the  packet already  sold to P.W. 1. The ten-rupee note, which  was  the price  of the said set of playing cards and which  had  been earlier  given-by  the  Sub-Inspector to P.W.  1,  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  is very severe on the ground that only one  single sale  has been established in this case and also only  three packets  of  cards  were recovered  from  the  accused.   He further submits that the accused is entitled to be  released on  probation under section 4 of the probation of  Offenders Act, 1958. Since  obscenity  of the playing cards  recovered  from  the accused  is  not challenged and for the matter of  that  the conviction  under section 292, I.P.C., it is necessary  even for the purpose of appreciating the submission on the ground of  sentence to 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 ob scene, if               it  is lascivious or appeals to  the  prurient               interest  or  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 bear the matter               contained or embodied in it". Sub-section (2) of section 292 is the penal provision  which runs as follows :-               292 (2) : "Whoever-               sells,  lets  to hire,  distributes,  publicly               exhibits   or   in  any   manner   puts   into

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             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 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 second 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". 724 There  are certain Exceptions to this section with which  we are  concerned.   This section was amended by Act  XXXVI  of 1969 when apart from enlarging the scope of the  exceptions, the  penalty  was  enhanced 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 offenders and the subsequent offenders.   In  the case  of  even  a  first conviction  the  accused  shall  be punished with imprisonment of either description for a  term which may extend to two years and with fine which may extend to  two thousand rupees.  The intention of  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 riot be emphasised that  the  corrupting influence  of these pictures is more likely to be  upon  the younger  generation 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 this case. With regard to the plea of the learned counsel on the  score of section 4 of the Probation of Offenders Act, we may  read the section               Power to Court to release certain offenders on               probation  of  good conduct : 4(1)  "When  any               person is found guilty of having committed  an               offence   not   punishable   with   death   or               imprisonment  for life and the Court by  which               the person is found guilty is of opinion that,               having regard to the circumstances 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 period, not  exceeding               three  years, as the Court may 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

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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  internal fabric  of  the  mind have got to be  treated  on  the  same footing  as  the cases 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. 725