Judgment

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 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 theSub-Inspector to P.W. 1, as also recovered from the person of the accused.

2. 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 Rupees 500/-, in default further rigorous imprisonment for three months. The High Court affirmed the conviction as well as the sentence. Hence this appeal.

3. 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.

4. Since obscenity of the playing cards recovered from the accused is not challenged and for the matter of that the conviction under Section 292, Indian penal Code, 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 purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation of figure or any other object, shall be deemed to be obscene 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 hear the matter contained or embodies in it."

Sub-section (2) of Section 29 is the penal provision which runs as follows :-

292(2) : "Whoever -

sells, lets to hire, distributes, publicly exhibits or in any manner puts into 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.....

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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 conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees."

There are certain exceptions to this section with which we are not 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, theref