Mere possession of obscene books for sale is an offence. Mens rea is not dispensed with. It is an inference of law resulting from doing the act.

( 1 ) THIS is an appeal against an order of conviction under Sections 292 and 292/109 I. P. C. and sentence of three months' R. I. and a fine of Rs. 500/- and in default, R. I. for a further period of three weeks.

( 2 ) THE first appellant, C. T. Prim, is a partner of India Book House, at 1, Lindsay Street, Calcutta, end appellant No. 2 Mohonlal Lalwanj, is the sales-man in the shop.

( 3 ) ON 20-4-54 copies of three books, The Dark Urge, The Shame of Mary Quinn and Find Me in Fire along with three other books were seized by the police on the allegation that they were obscene. The learned Magistrate found that only the three books specified above came within the mischief of Section 292 I. P. G.

( 4 ) IT has been urged inter alia on the side of the appellants that the books are not obscene. Further it is contended that in the absence of mens rea the appellants should not have been convicted. Jn the written statement filed by appellant Prim in the court of the learned Presidency Magistrate it was stated that the books formed part of a routine consignment front overseas, for which no specific orders had been placed and that as thousands of books with about 75 new titles came every month, it was not possible to scrutinise all the books, some of which had passed through regular editions before being issued in cheap editions.

( 5 ) SECTION 292 (a) in its relevant portion reads as follows :"whoever. . . . for purposes of sale. . . . has in his possession any obscene book. . . . shall be punished with imprisonment of either description for a term which may extend to three months or with fine or with both. "

( 6 ) MR. Chaudhury, learned counsel for the appellants, has argued that in the absence of any proof as to mens rea the conviction of the appellants should not be maintained. In support of his contention he has referred to several decisions, including Srinivas Mal v. Emperor, 51 Cal WN 900: (AIR 1947 PC 135), Hariprasada Rao v. The State, and Bholaprosad Lala v. The King, 53 Cal WN 300: (AIR 1949 Cal 348 ). It is beyond question that unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of the crime, no one should be found guilty of an offence under the criminal law unless he has got a guilty mind.

Their Lordships observed in the case of Srinivas Mal:"offences which can be held to be committed without a guilty mind are usually of comparatively minor character, and the selling of articles at more than their controlled price under the Defence of India Rules which is punishable with imprisonment for three years, does not come within that limited and exceptional class". The maximum punishment prescribed under Section 292 I. P. C. is imprisonment of three months or fine or both. The offence is not of a minor character, for the liberty of the subject is at stake. The aforesaid analogy of imprisonment for three years, in my opinion, cannot always be the real yardstick for measuring the true, character of an offence. A sentence of three months' rigorous imprisonment is not insignificant in that sense. It has been argued on behalf of the State that mere possession of any obscene book for sale is an offence and that by implication mens rea has been ruled out. But possession connotes conscious possession and in that sense it cannot be argued that mens real or guilty mind has been dispensed with. Let us take an extreme case. A blind person may be used as a tool for the purpose of selling obscene books. Unless he knew what type of books he was entrusted with for sale or unless he knew that he was being used as a disseminator of obscene literature, he should not be found guilty. But mere illiteracy on that part of a vendor cannot succeed easily nor would the plea of innocence be easily available, for example, to a man selling obscene post cards in wrapped up packets. Nor would one conversant only with the English, language, possessing for sale obscene literature written, for exa