SASI S/O. KRISHNAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Is it necessary to send a cassette seized on the allegation that it contains obscene matters to the Tahsildar for getting a report before deciding the question whether an offence under Section 292(2)(a) of Indian Penal Code was committed. This is the question to be settled in this revision.

(2.) Facts are not complicated. On 1.2.2000 at about 4.30 p.m police party headed by Sub Inspector of Police, Vadkkekkad conducted a search in World Video Cassette shop in building No.VI/516 of Vadakkekkad Panchayath and in the presence of the petitioner seized six Video Cassettes after getting satisfied that they contain obscene matters. Petitioner was arrested and later released on bail on the same day. After completing the investigation charge was laid for the offence under Section 292(2)(a) of Indian Penal Code which was taken cognizance as C.C.405/2000 by Judicial First Class Magistrate, Kunnamkulam. Petitioner pleaded not guilty. Prosecution examined eight witnesses and marked five exhibits apart from identifying MO.1 series of obscene video cassettes. Learned Magistrate on the evidence found that petitioner was in possession of the said shop room as a building tenant and was conducting World Video shop and was in possession of MO.1 series of six video cassettes which are intended for circulation and petitioner thereby committed an offence under Section 292(2)(a) of Indian Penal Code. He was convicted and sentenced to rigorous imprisonment for one year. MO.1 series were confiscated and were directed to be destroyed. Petitioner challenged conviction and sentence before Sessions court, Thrissur in Crl.A.371/2001. Learned Additional Sessions Judge on re -appreciation of evidence found that evidence of PW8 owner of the shop building proves that building was rented out to the petitioner, who is running the video cassette shop. From the evidence it was found that petitioner was in possession of MO.1 series of video cassettes. Learned Sessions Judge then found that the crucial question is whether MO.1 series contain obscene matters to attract an offence as alleged or not. Finding that MO.1 series were not sent to Taluk Tahsildar as provided by Government circular No.K.Dis.17699/91/LRE 2 dated 9/8/1991 and as directed by this court in official memorandum No.D1 -57734/97 learned Sessions Judge found that in view of Government circular and official memorandum issued by this court observed that the practice of viewing the cassettes by the Magistrates are discontinued and the cassettes are to be sent to the Taluk Tahsildar and the question is to be decided only on getting a report from the Tahsildar. Finding that learned Magistrate has not personally seen the cassettes, learned Sessions Judge set aside the conviction and sentence and remanded the case to the learned Magistrate with a direction to refer MO.1 series to the Taluk Tahsildar for verification as directed in the Government circular and official memorandum issued by this court, referred earlier.

(3.) Revision is filed challenging the order of remand. Revision petitioner would contend that learned Sessions Judge did not properly consider the appeal. It is contended that official memorandum and the Government circular are to be followed only in cases where violation of provisions of Cinematograph Act is alleged and that is to detect whether there are any interpolations in the films after certification made by the Central Board of Film Certification. Question whether the cassettes are containing obscene matters or not, cannot be decided by the Tahsildar or for that purpose the cassettes are to be sent to the Tahsildar. It is contended that in view of law laid down by the Apex court in Ranjit D.Udeshi v. State of Maharashtra (AIR 1965 SC 881), Chandrakant Kalyandas Kakodkar v. State of Maharashtra and others (AIR 1970 SC 1390) and Samaresh Bose and another v. Amal Mitra and another (AIR 1986 SC 967), it is the duty of the court to decide whether a particular matter is obscene or not and as it was not done, learned Sessions Judge should not have remanded the case and should have acquitted the accused. It is contended that when there is no evidence on the side of the prosecution to prove that MO.1 vodeo cassettes were in the possession of the petitioner for the purpose of lending it out and there is no evidence to prove that it contains obscene matters, the order of remand is unwarranted and is to be quashed.