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KOCHI: Mere possession of obscene
books or materials without exhibiting it for sale or circulation is not an
offence, says the Kerala High Court.
The decision by justice P Ubaid came
on a petition (Crl. RP No. 1366/2006) filed by Mohammed Rafeeque of
Perinthalmanna through advocate Shajin S Hameed. After seizing obscene books
from a shop, police had booked the petitioner, who was present there, for
selling obscene books (Section 292(1)(a) of Indian Penal Code).
In the judgment, the court said, “An
accused can be found guilty and convicted under Section 292(1)(a) IPC only if
there is evidence to show that he had sold, or distributed, or publicly
exhibited, or in any manner put in circulation, or has in his possession, any
obscene matter. Mere possession of some obscene material without exhibiting it
for sale, or circulation, cannot be punished under Section 292(1)(a) IPC. PW1
(investigating officer) admitted fairly that the books seized by him were not
in fact kept there for sale, or that he had not seen such materials being kept
or exhibited there for sale or circulation. If so, there cannot be a conviction
under Section 292(1)(a) IPC.”
Even if it is assumed that the books
were kept there for sale or that the shop owner possessed it for sale or
circulation, the evidence of the investigating officer does not contain
anything to show that the accused is the shop owner or employee, the court
pointed out.
The obscene books were seized in a
raid conducted by Perinthalmanna circle inspector at a shop on May 2, 2001. A
trial court had found the petitioner guilty and convicted him. Allowing the revision
petition, the court set aside the conviction and acquitted the petitioner.
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