Possessing Child Sexual Abuse Material Is a POCSO Offence Even Without Sharing: Supreme Court Restores Prosecution

Acting on a Cyber Tipline report received through the NCRB, Chennai police registered an FIR on 29.01.2020 against the first respondent under Section 67B of the IT Act and Section 14(1) of the POCSO Act; a forensic report found two videos on his phone showing children in sexual activity (paras 4-7). The chargesheet of 19.09.2023 invoked Section 15(1) of the POCSO Act instead (para 8). The Madras High Court quashed the case, holding that merely downloading or watching such material in private is no offence (paras 10-12). Two child-rights organisations, not parties below, appealed with leave (para 3).

Section 15 creates three distinct inchoate offences of storing or possessing CSEAM with a specified intent: failing to delete, destroy or report it with intent to share (sub-section 1), keeping it for transmission or display (sub-section 2), or for a commercial purpose (sub-section 3); no actual transmission is needed (paras 76-81, 222). Viewing such material online without downloading it is possession where the person exercises control over it, under the doctrine of constructive possession (paras 118, 122). Section 67B of the IT Act also punishes creation, possession and consumption, not only dissemination (para 151). Once the prosecution prima facie shows the foundational facts, the Section 30 presumption of a culpable mental state applies, including in a quashing petition; Noor Aga does not confine it to the trial (paras 189, 191-193). The High Court relied on the FIR's Section 14 instead of the chargesheet's Section 15(1) (para 196). The videos were still on the phone when the FIR was registered, so the 2019 amendment applied, and ignorance of the law was no defence (paras 205, 214, 217). Intermediaries must also report such material to the police under the POCSO Act (paras 256, 258).