009-NLR-NLR-V-39-PERERA-v.-AGALAWATTE–et-al.pdf
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ABRAHAMS C.J.—Perera v. Agalavoatte.
1936Present: Abrahams C.J.
PERERA v. AGALAWATTE et al.
467-8—P. C. Kalutara, 17,022.
Obscene book—Advertisement of drugs and aphrodisiac—Tendency to corrupt—Penal Code, s. 285.
Where an Ayurvedic physician published a book advertising drugs asa remedy for the diseased as well as an aphrodisiac for the sound,—Held, that the tendency of the book was to corrupt the minds of thoseinto whose hands the book may fall.
^^PPEAL from a conviction by the Police Magistrate of Kalutara.
Li. A. Rajapakse (with him P. Senaratne), for accused, appellants.
M. M. I. Kariapper, Acting C.C,., for Crown, respondent.
Cur. adv. vult.
October 6, 1936. Abrahams C.J.—
The first appellant was convicted under section 285 of the Penal Codefor printing a number of copies of a book containing obscene passages.The second appellant was convicted for aiding and abetting the firstappellant in the commission of the above offence, and also with possessionof a number of copies of the same book which amounts to an offencepunishable under section 286 of the Penal Code. They were each finedRs. 50 or in default one month’s rigorous imprisonment.
They appeal on the ground that there was a misjoinder of charges,and also on the ground that the passages in the book, which are the
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ABRAHAMS C.J.—Per era v. Agalatuatte.
subject-matter of the charge, are not actually obscene. The first point,that of misjoinder, was not seriously pressed, and I have no hesitationin saying that there is no substance in it. The second point, how-ever, raises a question of considerable difficulty as this sort of casefrequently does.
The book in question,was written by the second appellant who is anAyurvedic physician, and who is the owner and probably the purveyorof various kinds of drugs which he claims in his book to possess remedialqualities for a very extensive number of complaints. Whether thebook contains obscene passages or not, I am of the opinion that it waswritten merely to puff the drugs and for no other purpose* In a prose-cution of this kind, however, the intention of the accused is not actuallyrelevant, the question being, is the book likely to get into the hands ofpeople who may be corrupted by it?
There has been considerable argument as to the meaning of the passagesin the book which form the subject-matter of the charge. It was con-tended by Counsel for the appellants that the passages merely prescribea remedy for those persons who are impotent or suffer from a lackof sexual energy. It was contended on the other hand by Counselfor the Crown that the appeal is wider than that and suggests thelascivious, and incites people to immorality by putting into their mindslascivious ideas. '
A number of cases have been cited on both sides, but, of course, in theconsideration of charges such as these, each case depends on its ownfacts. The test to be applied in considering what is an obscene publi-cation, is that which is contained in the judgment of Cockburn L.C.J. inReg. v. Iiicklin “ The test of obscenity is this, whether the tendencyof the matter charged …. is to deprave and corrupt those
whose minds are open to such immoral influences and into whose handsa publication of this sort may fall ”.»
It is argued for the appellants that the appeal of the book is to thediseased only, and that the book is hardly likely to fall into the handsof anybody else, and if it does, could not be said to be any more harm-ful than a number of medical treatises relating to sexual deficiencieswhich can be purchased by all and sundry without any difficulty. Thebook apparently is only obtainable on application to the writer or thepublisher who, I am informed, advertised the existence of the work inthe Ceylon Press. The reader of the book is exhorted, after reading it,to pass it on to a friend. Therefore, I do not think it can be doubtedthat the book is quite likely to be passed on to people who are perfectlysound, and who do not require medicine to restore or to improve theirsexual powers.
Then as to the material itself, I am of the opinion that there are partsof the passages which are objected to in P 9 and P 10, which go beyondrecommending remedies to the diseased and undoubtedly do suggest tothe sound artificial stimuli for the increase of sexual energy and theenhancement of sexual satisfaction. In other words, there is not onlyprescribed a remedy for the diseased but an aphrodisiac for the sound,and that, in my opinion, has a tendency to deprave-and. corrupt those39/71 (1368) 3 Q. B. Ca*:- 360.;
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ABRAHAMS C.J.—Perera v. Agalawatte.
whose minds are open to such influence. The distinction between aremedy and an aphrodisiac was, if I may respectfully say so, admirablyput in the case of Emperor v. Thdkar Datt and anotherwhere Johnstone
J. said, “We would like to see a distinction drawn between (i.) de-scriptions of diseases with remedies and treatment therefor, and (ii.)description of defective sexual enjoyment, with ajivice for heighteningand prolonging such enjoyment in the case of normal persons. Diseaseis a thing to be combated ; and descriptions of it with cures suggestedprinted in a paper intended to reach sufferers and doctors and not likelyto come into the hands of others, are not criminal; but advice of the kindmentioned in (ii.) above is on. a different footing and should be keptout of public prints, as it amounts to an incentive to sensuality ”.
If the writer of the .book wished .to continue to reach sufferers only,he can express himself in a way which will not appeal to the personswho do not require his remedies.
therefore have no reason to interfere with the Magistrate’s finding,and I dismiss both appeals. –
Affirmed.
> {1917) A. I. B. Lah. 288.