GEORGES v. VELUPILLAI.

GEORGES v. VELUPILLAI.

 P. C, Jaffna, 34,356.

Obscene books-Printing and possessing such books-Penal Code, ss. 285, 286 '-Test of obscenity.

In a prosecution under sections 285 and 286 of the Penal Code for printing and possessing obscene books,-

Held, following Cockburn, C.J., in Queen v. Hicklin, L. R. 3, Q. B. 371, that the test as to a book being obscene or not is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.

THE accused was convicted on two counts of the charges of (1) printing, and (2) possessing for the purpose of sale, an obscene pamphlet in the Tamil language styled " Secret Science." The nature of this work is sufficiently indicated in the judgment of Wendt, J.

On appeal preferred by the accused, the case came on for argument before Wendt, J., on 9th February, 1904.

Dornhorst, K.C. (with him Wadsworth), for appellant.

Ramanathan, S.-G., for respondent.

The following cases were cited in the course of the argument: -Queen v. Hicklin, 3 Q. B. L. R. 360; and Empress of India v. Henderson, 3 All. 837.

Cur. adv. vult.

19th October, 1904. WENDT, J.-

The appellant, who is the proprietor and publisher at Jaffna of a newspaper in the Tamil language called Native Public Opinion, has been convicted on the first count of the charge of having printed for sale an obscene pamphlet in the Tamil language styled " Secret Science," in breach of section 285 of the Penal Code; and on the second count of having in his possession the said pamphlet for the purpose of sale, in breach of section 286. The sentences on the two counts are, respectively, a fine of Rs. 100 or three months' rigorous imprisonment and a fine of Rs. 50 or two months' rigorous imprisonment. The Magistrate has ordered the destruction of all copies of the pamphlet produced in Court or to be found in the possession of accused.

The only question argued in appeal was whether the pamphlet was obscene, and to the consideration of that question I have devoted a great deal of anxious care. The book professes to be a compilation from a number of other works, and in the Court below several books published in England, in America, and in India were produced with the object of showing that the appellant's pamphlet contained nothing more objectionable than appeared in those books, which, it was said, had never been made the subject of prosecution. But the fact that the publishers of these other works were not proceeded against does not prove that such works were not obscene. One knows the very real danger that exists, in England at all events, of giving to a pernicious book, by making it the subject of such a charge, a very much wider advertisement than it would otherwise receive, and so rendering the evil more widespread by the very endeavour to suppress it. It might perhaps have assisted the appellant if he had produced some publication similar to the one in question, which had been judicially declared, to be unobjectionable on the score of obscenity; but he has not. Without that assistance we have to determine whether this book was obnoxious to sections 285 and 286 of the Penal Code.

Before proceeding further I may say that the appellant did in fact sell the pamphlet to the public in general, and that the price was only 25 cents. He also advertised it for sale in his newspaper. The preface describes it as intended to be a " guide to youths and those who have embraced the married state."

What then is an " obscene " book ? "I think, " said Cockburn, C.J., in Queen v. Hicklin, L. R. 3, Q. B. 371, " the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." The Police Magistrate, quoting

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