JUDGEMENT
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(1.)THIS is an application under Section 24 of the Press (Objectionable Matter) Act, 1951 (LVI. of 1951) against the order of forfeiture passed by the State Government on 7-1-1954, forfeiting a book entitled 'dampatya Rahasya' published in Gu]arati by Messrs. Ellis and Martyn, a firm doing business in Bombay. It appears from the petition that a book bearing the title 'mysteries of Marriage' was published in 1943 in English. The book which has been forfeited is a translation of the English book and is said to have been brought out in March 1953. Both the English and Gujarati books give detailed descriptions of 40 coital postures, that is positions which may be adopted during the act of sexual intercourse. At the end of each book there are coloured pictures showing the different postures. Each picture shows a naked man and a naked woman joined together for the purpose of sexual intercourse. By the side of each picture, there is a diagram which shows the position of the male organ inside the female organ. As the book was considered to be obscene, the State Government obtained the opinion of the Advocate General and on his certifying that it contained obscene matter, an order of forfeiture was passed under Section 11 of the Act. The grounds for issuing this order, as stated in the order itself, are that the book contains descriptions of forty postures of sexual intercourse and pictures of the different postures which are obscene. Against this order, the present application has been filed and the petitioners have prayed that the order of the State Government forfeiting all copies of the book may be set aside.
(2.)CLAUSE (vi) of Section 3 of the Press (Objectionable Matter) Act, 1951, states 'inter alia' that the expression "objectionable Matter" means any words, signs or visible representations which are grossly indecent or obscene. Section 11 of the Act empowers the State Government to declare by notification in the Official Gazette, after obtaining a certificate from the Advocate-General or the one of the other law officers mentioned in the section, that any issue of any book contains any objectionable matter, that every copy of such book shall be forfeited to the Government. The word "obscene" is not defined in the Act. But the definition of this term, which is generally accepted by the Courts, is that laid down by Cockburn C. J. In -- 'the Queen v. Hicklin', (1868) 3 QB 360 (A)
". . . . I think ths 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. "
This test has been accepted by various High Courts in India and also by this Court in --'queen Empress v. Parashram Yeshwant', 20 Bom 193 (B) and -- 'emperor v. Vishnu Krishna'. 15 Bom LR 307 (C ). In considering whether a pub-lication is obscene, the class of persons who are likely to read such a publication must also be taken into consideration, see -- 'emperor v. Thakar', AIR 1917 Lah 288 (D) and -- 'sukanta Haldar V. The State', AIR 1952 Cal 214 (E ). A scientific book which is published, say for the use of medical men, cannot, therefore, be tested in the same way as a book intended for the use of the ordinary public. In applying the test, one has also to consider the effect which the book would produce on an ordinary average person, and not on a person with depraved mentality.
(3.)WE are also of the opinion that a publication cannot be said to be obscene merely because it deals frankly with sex matters, provided, of course, that the language used is not such as to excite sensual feelings or give rise to thoughts of lust. We agree with the view expressed by the Lahore High Court in -- 'emperor V. Harnam Das', AIR 1947 Lahore 383 (P), that a book which is intended to give advice to married people on how to regulate the sexual side of their lives, that is to say, with a view to promoting their health and mutual happiness and which is written in a fairly plain language in order to be understood, cannot be said to be obscene, merely because such a book might fall into wrong hands.
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