1960 Present: Sinnetamby, J.

K E. PERERA, Appellant, and R. E. KITTO (Superintendent of Police,
C. I. D.), Respondent

S. C. 305-Jt. M. C. Colombo, 15388

    Having in poss88sion obscene pamphlet for distribution-Ingredients of offence- Penal Code, ss. 285, 286.

In a prosecution under Section 286 of the Penal Code for having in possession an obscene pamphlet for the purpose of distribution, it would be su1Iicient for the Crown to prove that the accused intended to distribute, by some means mechanical or otherwise, not the pamphlet itself but only the representation contained in the pamphlet.

Further, if the Crown proves that the accused had the pamphlet in his possession and was making copies from it, it would be reasonable, in the absence of an explanation, to assume that the accused intended to distribute the pamphlet also.

APPEAL from a judgment of the Joint Magistrate's Court, Colombo.

Colvin R. de Silva, with M. L. de Silva, for the accused-appellant.

S. A. Pullenayegum, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

February 17, 1960. SINNETAMBY, J.-

The accused in this case was charged with having in his possession for the purpose of sale or distribution an obscene pamphlet which has been produced in the case marked " A " and with thereby having committed an offence punishable under Section 286 of the Penal Code.

The learned Counsel for the appellant did not contest the correctness of the learned Magistrate's findings on the facts which for the purpose of this case may shortly be stated as follows :-

The accused was employed as a clerk in the office of the Local Government Service Commission. He was also versed in Sinhalese and, in the absence of the Sinhalese typist, used to perform the latter's duties. There was in the office a Sinhalese typewriter. On the day in question, at about 2.15 p.m. Assistant Superintendent of Police R. E. Kitto and certain other Police officers went to this office and found the accused seated in front of the sinhalese typewriter. By the side of the type- writer was the document marked "A " and in the typewriter itself there was a wax sheet with two or three lines appearing on it which has been produced, marked P2, while below it was a carbon copy marked P3 and below that a piece of tissue paper marked P4. It was later found that six paragraphs of document "A" were typed on P2, P3 and P4. Document " A " was not merely obscene but also scurrilous.

For the purpose of this case, learned Counsel for the appellant was prepared to concede that it was the accused who had typed these six paragraphs from document "A" onto the documents P2, P3 and P4. That, indeed, is on the facts as found by the Magistrate an irresistible conclusion. He however, relied purely upon a legal defence. His contention was that the charge was in respect of the document "A' and the evidence showed that the accused was only using document. "A " as an original in order to prepare copies and that, therefore, what was intended to be distributed was not document " A " but the copies: had the charge boon in respect of the copies which at the moment though incomplete, was, nevertheless, obscene, then the accused would be guilty; but, in as much as the charge was restricted to document" A", the Crown has failed to establish that the possession of document " A , was for the purpose of sale or distribution. It is necessary, therefore to consider the provisions of Section 286 and also Section 285 to which it refers. Sections 285 and 286 are in the fallowing terms:-

Section 285 : Whoever sells or distributes, imports, or prints for sale- or hire, or willfully exhibits to public view, any obscene book, pamphlet paper, drawing, painting,. photograph, representation, or figure, or- attempts or offers so to do, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine,. or with both.

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