Raja Azlan Shah J:

The appellant was convicted for an offence under s. 292(a) of the Penal Code viz, publicly exhibiting for sale an obscene book, to wit one copy of Majallah Filem Malaysia, October 1969 issue. He was fined $60 in default two weeks imprisonment. I dismissed the appeal against conviction and intimated that I would give my reasons later. I now proceed to do so.

Majallah Filem Malaysia is an approved publication but an article appearing in it offends against the recognised standards of propriety and is therefore obscene. That is not challenged.

One of the grounds of appeal is that the publication is an approved publication by the Government and therefore not an obscene publication. Counsel's argument is that a publication which contains an obscene article is not obscene because it is an approved publication. I think there is a fallacy in the argument. In my view the word "approved" strong as it is, cannot be read without any qualification. It does not mean extra legem. We boast of being a free democratic country but that does not mean that we are not subject to law. The impugned article is clearly obscene and a publication is an obscene publication even if only a part of it is obscene (see Ranjit D Udeshi v. State of Maharashtra) AIR [1965] SC 881.

The conviction is impugned on another ground that the appellant has no knowledge that the publication is obscene as he is only a retailer and therefore not expected to know what is contained in every publication. The argument is based on the false premise that before a person is found guilty of selling or keeping for sale any obscene publication, the prosecution must prove that he "knows" that the publication is obscene. In a case under s. 292(a) of the Penal Code knowledge that the publication is obscene need not be proved. If the law is otherwise it would place an intolerable burden on the prosecution. The difficulty of obtaining legal evidence of the offender's knowledge of the obscenity of the publication has made the liability strict. Absence of knowledge may only be taken in mitigation of sentence. A third ground of appeal is that the learned Magistrate had failed to direct his mind as to the identification of the appellant. The evidence shows that the police constable (PW1) who raided the shop saw the impugned publication displayed for sale but when giving evidence in Court he had failed to identify the accused. The investigation officer (PW3) in his testimony said that in the course of investigation he went to the said shop where he saw the accused and that he checked the business license, which he produced as Exh. P 3. The said license discloses the name of the accused.

Identification is a fact or circumstance which must be proved against an accused person before it can be relied upon and used against him. A fact or circumstance is held to be proved only when it fulfils the definition of the word "proved" given in s. 3 of the Evidence Ordinance. The evidence of identification is as much subject to this definition as any other kind of evidence but it would appear to me that in assessing the evidence of identification the trial Court does not apply the tests provided in this section. It is true that an absolute certainty is not required but the Court has to test the evidence with prudence and accept it only when it is so highly probable that its truth can safely be accepted. The test excludes from its orbit blind faith of a true believer, because prudence and credulity do not go together.

In my view and so is the view of the lower Court the evidence of identification has fulfilled this test. There is sufficient evidence to establish the accused's identity.

Appeal dismissed.