S nSTNBTAHBlf, J-—Per era v. Kitto
1S80Present: Sinneiam&y, J.K. E. PERERA, Appellant, and R. E. TCTTTO (Superintendent of Police,
I. D.)j Respondent
5. G. 305—Jt. M. G. Colombo, 15388
Saving 4m possession obscene pamphlet for distribution—Ingredients of offence—
Penal Code, ss. 286, 286.
In a prosecution, under Section 2S6 of the Penal Code for having in possessionan obscene pamphlet for the purpose of distribution, it would be sufficientfor the Crown to prove that the accused intended to distribute, by some meansmechanical or otherwise, not the pamphlet itself hut only the representationcontained in the pamphlet.
Further, if the Crown proves that the accused had the pamphlet in hispossession and was tt> airing copies from it, it would be reasonable, in theabsence of an explanation, to assume that the accused intended to distributethe pamphlet also.
iA^PPEAXi from a judgment of tlxe Joint Magistrate’s Court, Colombo.
Colvin JR. de Silva, with. M. L. de Silva, for the accused-appellant.
V. S. A. PuUenayegum, Crown Counsel, for the Attorney-General.
Cut. adv. wit.
February 17, 1S80. SeststetaMbt, J.—
The accused in this case was charged with having in his possessionfor the purpose of sale or distribution an obscene pamphlet which hasbeen produced in the case marked “ A ” and with thereby having com-mitted an offence punishable under Section 286 of the Penal Code.
The learned Counsel for the appellant did not contest the correctnessof the learned Magistrate’s findings on the facts which for the purpose ofthis case may shortly be stated as follows :—
The accused was employed as a clerk in the office of the Local Govern-ment Service Commission. He was also versed in Sinhalese and, in theabsence of the Sinhalese typist, used to perform the latter’s duties.There was in the office a Sinhalese typewriter. On the day in question,at about 2-15 pm. Assistant Superintendent of Police R. E. Kitto andcertain other Police officers went to this office and found the accusedseated in front of the Sinhalese typewriter. By the side of the type-writer was the document marked “A” and in the typewriter itselfthere was a was sheet with two or three lines appearing on it whichhas been produced, marked P2, while below it was a carbon copy markedP3 and below that a piece of tissue paper marked P4. It was later foundthat sis paragraphs of document ” A ” were typed on P2, P3 and P4.Document “ A ” was not merely obscene but also scurrilous.
SINNETAMBY, J.—Per era v. Kitto
For tlie purpose of this ease, learned Counsel for the appellant was.prepared to concede that it was the accused who had typed these six.paragraphs from document “ A ” onto the documents P2, P3 and P4.That, indeed, is on the facts as found by the Magistrate an irresistibleconclusion. He, however; relied purely upon a legal defence. His-contention was that the charge was in respect of the document “ A ,rand the evidence showed that the accused was only using document" A ” as an original in order to prepare copies and that, therefore, what,was intended to be distributed was not document “ A ” but the copies :had the charge been in respect of the copies which at the moment thoughincomplete, was, nevertheless, obscene, then the accused would be=guilty ; but, in as much as the charge was restricted to document “ A ”,the Crown has failed to establish that the possession of document “ A ,rwas for the purpose of sale or distribution. It is necessary, therefore,,to consider the provisions of Section 286 and also Section 285 to whichit refers. Sections 285 and 286 are in the following terms —
Section 285 : Whoever sells or distributes, imports, or prints for saleor hire, or wilfully exhibits to public view, any obscene book, pamphlet,paper, drawing, painting, photograph, representation, or figure, orattempts or offers so to do, shall be punished with imprisonment of eitherdescription for a term which may extend to three months, or with fine,or with both.
Section 286 : Whoever has in his possession any such obscene bookor other thing as is mentioned in the last preceding section for thepurpose of sale, distribution, or public exhibition, shall be punished,with imprisonment of either description for a term which may extendto three months, or with fine, or with both.
Section 285 contemplates a case where the offender actually sellsor distributes any obscene book, pamphlet, paper, drawing, painting,photograph, representation or figure. Section 286 covers cases wherethere has been no sale or distribution bnt where there is possession ofany one of the articles mentioned in Section 285 coupled with an inten-tion to distribute : it contemplates a stage, in point of time, prior to theactual distribution.
Ordinarily it is quite easy to envisage a case in which the intentionto sell or distribute is manifest. Such would be the situation if severalcopies far more than are intended for the offender’s personal use arefound in his possession. In the absence of an explanation from him,it would in such a situation he reasonable to assume that the articleswere kept for the purpose of sale or distribution. But what is it thatis penalised by these sections. It is not in my view just merely the' document ’ or e container ’ bnt the f contents The ‘ container ’itself without the ‘ contents ’ would not be obscene. Neither a pamphlet,paper, nor a hook can be regarded as obscene until and unless the contentsare seen or heard. What, therefore, in my view, Section 285 seeks topenalise is the distribution of the contents and not merely the container.It, therefore, in mv view, does not matter that the accused did notintend to distribute document " A ” but only intended to distribute
SBSHBTAMBT, J.—Per era v. Kitto
the copies that he intended to make from the stencil. What he wantedto do was to distribute the contents of document “ A ” to the public.X find myself unable to agree with the contention of the learned counselthat what the Grown had to prove was that what the accused intendedto distribute was the tangible object, viz : document ” A ”, along withthe obscene representations appearing upon it. One can, I agree, con-ceive of a case where the obscenity does not exist independent of thetangible object on which appears the obscene representation. Suchwould be the case if the obscenity took the form of a figure or object.associated with what it seeks to depict, hut the much more commoninstance is where the obscenity lies not in the object on which therepresentation is made hut in the representation itself.
It is to be noted that Section 285 penalises also the distribution ofan obscene representation. I am using the word “ representation ”because it appears in Section 285 and is most appropriate to covercases which may not have been envisaged when the Penal Code wasenacted in 1885 but can exist now. Por instance let me take the caseof a man who has a lantern slide on which there is depicted an obsceneact. He can distribute the representation on the slide by using a lanternand projecting it on a screen. That, in my view, would come withinthe purview of Section 285. He would be distributing an obscenerepresentation though he may not part with the material used for thepurpose of so distributing the representation. It cannot for instancebe said that if a cinema show is shown of certain obscene acts to beseen by several persons that there was no distribution of an obscenerepresentation merely because the film used for the purpose of projectingthe obscene scenes was not itself distributed among the viewers.
therefore, take the view that it is not necessary to find that theaccused intended to distribute the actual sheet of paper marked “ A ”if it is clearly established that he intended to distribute the representationcontained in that sheet of paper marked (t A ” by some means mechanicalor otherwise. If he does so or it is proved that he had the document■** A ” in his possession with the object of distributing the contents of it,he would be guilty of an offence punishable under Section 286. In■this view of the matter, the accused was clearly guilty of the offencewith which he was charged. I may say that this aspect of the case was•apparently not argued before the Magistrate nor was it considered byhim. I may also add that the learned Crown Counsel supported thejudgment on another ground, namely that where the Crown has provedthat the accused had document “ A ” in his possession and was makingcopies from it, it would be reasonable in the absence of an explanationto assume that the accused intended to distribute the document “ A ”also.
It seems to me that even this contention is entitled to succeed. Thereis the fact that the accused had document e< A ” in his possession andwas making copies from it. He has given no explanation as to why hewas doing so. Indeed, his defence is that he did not do it at all and thishas been rejected by the Magistrate. If he had stated that document■“A” was merely the original which he intended to keep himself and
Sameen v. A. b eyazoickrvma
the stencil copies were intended to be distributed, then there mighthave been some force in the contention of the learned Counsel for theaccused. In the absence of such evidence, the Court was entitled todraw from the incriminating and circumstantial evidence an inferenceadverse to the accused. -Intention^is-something-which is to be gatheredfrom the attendent circumstances and the circumstances suggest, inthe absence of an explanation to the contrary, that the accused intendedto distribute the copies he was preparing as well as the original fromwhich he was preparing it. There is nothing to justify the suggestionmade by the learned Counsel that it was only the copies that the accusedintended to distribute. For this reason, too, I think the appeal mustfail. I would accordingly dismiss it.