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Madhya Pradesh High Court · body

2008 DIGILAW 727 (MP)

Rafique Khan S/o Hafiz Khan v. State Of M. P.

2008-06-16

S.R.WAGHMARE

body2008
ORDER : This revision has been filed by the petitioner being aggrieved by the order dated 9-3-2004 passed by 2nd Additional Sessions Judge, Indore in Criminal Appeal No. 489/03 upholding the judgment passed by the trial Court convicting the accused under section 51 read with section 63 of the Indian Copy Right Act (hereinafter referred to as "the Act" for brevity) and sentencing him to suffer simple imprisonment for a period of six months with fine of Rs. 50,000/-, in case of default, the accused was to undergo an additional simple imprisonment for six months. 2. Brief facts of the prosecution story are that Indian Music Industry (hereinafter referred to as "I.M.I." for brevity) was a registered institute having Head Office at Mumbai and having its business all over Madhya Pradesh. Complainant Dinbandhu, who was the official investigator in the said company, appointed to investigate into the fraudulent reproduction and to prevent piracy of the original C.Ds filed a complaint that a shop named Khushboo Video situated at New Palasiya, Indore was selling pirated C.Ds. The complainant had, on the date of incident at around 12.30 pm gone to the said shop and purchased MP-3 C. D. Each C.Ds had more than 100 recorded filmy songs of which the copyright ownership belonging to the I.M.I. The owner of the Khushboo Video Shop was thus responsible for the violation of section 51 of the Act and the offence was punishable under section 63 of the Act. The complainant also stated that the mark of his copyright was not affixed on the cover of the C.Ds and was thus also in violation of section 52-A of the Act and punishable under section 68-A of the Act. The complaint was filed by complainant Dinbandhu vide Ex.-P/5 on 4-1-2002 at police station, Tukoganj, Indore in the nature of an FIR. 3. The Investigating Officer Jaganath Bakode PW-3 had then gone along and seized 25 cassettes in number containing the songs of films Jubeda, One-Two-Ka-Four, Lagan and Mohabbatein etc. The accused was arrested vide Ex.-P/2 the arrest memo and his statement was recorded after giving him notice vide Ex.-P/11. Thereafter, the accused was informed of his right to present bills, by which he may have purchased the said pirated C.Ds and if any documents pertaining to the purchase was in his custody. The accused was arrested vide Ex.-P/2 the arrest memo and his statement was recorded after giving him notice vide Ex.-P/11. Thereafter, the accused was informed of his right to present bills, by which he may have purchased the said pirated C.Ds and if any documents pertaining to the purchase was in his custody. The accused in his statement recorded his submission that he did not have name and address of the person, from where he had purchased the C.Ds nor have any bill or receipt for the same. The complainant being an expert of sorts examined the C.Ds; seized the same vide report Ex.-P/10 and stated that the recorded songs was from the films to which the copyright ownership belonged to the I.M.I. and spot map was prepared and the statement of witnesses was recorded. Investigation was launched and the charge was duly filed before the Court and thereafter the accused was committed to the committal Court for trial. 4. The trial Court convicted the accused for offence under section 51 read with 63 of the Act, however, acquitted the accused for offence under section 52-A and 68-A of the Act. Being aggrieved, the petitioner filed an appeal before the Appellate Court, which upheld the conviction as well as the sentence of the accused awarded by the trial Court. Hence, the present revision. 5. Learned Counsel for the petitioner basically challenged both the orders of the Courts below on the ground that the seizure of the said MP-3 CDs were not supported by any independent witness. Annexure-P/10 the seizure memo has been drawn by the Authorized Officer of the IMI, who was also the complainant. The corroboration is found in the testimony of the police officer, who were witness to the seizure memo. Relying on Saheb vs. State of Punjab, AIR 1997 SC 2417 , learned Counsel contended that when the seizure was not witnessed by any independent witness by the prosecution to prove the alleged recovery, then relying only on the independent police officers rendered the conviction liable to be set aside. 6. Learned Counsel also contended that there was absence of proof, since the seized MP-3 CDs were neither properly seized nor identified. 6. Learned Counsel also contended that there was absence of proof, since the seized MP-3 CDs were neither properly seized nor identified. However, it would be trite law to consider the said objection, since the Apex Court has time and again cautioned that the Police Officers in the course of their duties should not be unnecessarily doubted, unless mala fides have been impugned. I find from the testimony of the Sub-Inspector PW-3 Jaganath Vakode that he put his signature on the seizure memo, as he is found the accused selling pirated CDs. The CDs were seized in the presence of the accused by him vide Ex.-P/1 and he had arrested the accused vide Ex.-P/2 and both the memos contained his signature, although he had admitted that no independent witness had been called upon to put signature on the seizure memo, since a large crowd had gathered in the shop at the time of the seizure. The other witness to the seizure memo is PW-1 Vaibhav, who was junior investigator for I.M.I. along with Dinbandhu PW-2, the complainant along with the Investigating Officer has also drawn up the seizure memo, put his signatures thereon. It would be crucial to doubt the veracity of the statements of the public officer who were empowered under the law to search and seize the alleged pirated CDs, since no mala fides against them have been impugned by the accused either in the trial Court or the Appellate Court. 7. The other important objection was on the basis of Sheo Ratan Upadhya vs. Gopal Chandra Nepali and another, AIR 1965 Allahabad 274, whereby the Court had held that under section 63 of the Copy Right Act, the use of the expression "Knowingly Infringes" indicated that where the person knowingly publishes or prints a work in which another person has ownership of copyright, the ingredient of mens rea is required for offence and conviction under section 63 of the Act, if the same is not satisfied, the offence cannot be established. The argument, though attractive cannot be acceded to, since the accused has already been acquitted from the offence under section 52-A of the Act, since it could not be established that the accused was guilty for publication of the sound recording and also under section 68-A of the Act levying the punishment for such publication. 8. The argument, though attractive cannot be acceded to, since the accused has already been acquitted from the offence under section 52-A of the Act, since it could not be established that the accused was guilty for publication of the sound recording and also under section 68-A of the Act levying the punishment for such publication. 8. Both the Courts below on consideration has found that the accused was guilty for violation of section 51 of the Copy Right Act, which defines infringement of copyright. Section 51(b) of the Act, which defines infringement of copy right. Section 51(b) of the Act clearly states that when the person sells or hire or distribute any such work whose copy right belonging to another owner would be guilty of infringement of right of ownership of the said copyright and was liable to be punished under section 63 of the Act and coming to a conclusion that the accused was guilty of the said infringement by selling of the pirated version, for which he did not have the licence, I find that the accused has been properly indicted. 9. Learned Counsel for the respondent-State has also objected to the application of the case Saheb (supra) stating that the case pertains to Terrorist and Destructive Activities and Prevention Act and seizure of revolver procedure for which required strict compliance and the recovery of the fire Arms had not been seized and packed properly and there was an every possibility of tampering with the weapon, whereas in the instant case both the witnesses have duly testified to the said fact that the CDs were seized in their presence and they had put their signatures on the seizure memo. The infringement of the copyright had occurred due to no name being mentioned on the cover regarding the music companies, which had published the said CDs and the accused was selling the said CDs without having licence of the same. 10. The other case cited by the learned Counsel for the accused is Valsala vs. State of Kerala, AIR 1994 SC 117 which pertains to safe custody of the seized article and the Apex Court had found that there was no evidence to show that the article was sealed and kept in proper custody in the police station. 10. The other case cited by the learned Counsel for the accused is Valsala vs. State of Kerala, AIR 1994 SC 117 which pertains to safe custody of the seized article and the Apex Court had found that there was no evidence to show that the article was sealed and kept in proper custody in the police station. So also the sending of the article seized for chemical examination was also doubtful and hence, the conviction was set aside and therefore, the case is tangentially off the point and not applicable to the present case. 11. On perusal the impugned order and the submissions of learned Counsel for the respondent as well as perusing the record, I find that the revision mainly hinges on the point, whether the pirated CDs according to the accused have not been manufactured by the accused and the infringement of the copyright has not been fully proved by the prosecution; simply because the CDs were seized from the shop, then under such circumstances, whether it could be held that the accused was guilty of infringement under section 51 of the Copy Right Act. I find that there was a proper marshalling of the evidence by the trial Court as well as the Appellate Court and the implication of the accused has also properly been proved. The Investigator PW-2 Dinbandhu was appointed by IMI as Senior Investigator to look into such cases of fraud and piracy and although admittedly there have been no independent witness to support search and seizure, except the public official and policemen. There is no need to doubt the veracity of search and seizure as PW-2 Dinbandhu, the Asst. Investigator as well as Sub-Inspector Jaganath Vakode PW-3 have fully supported the search and seizure by admitting their signatures on the seizure memo and arrest memo. So also their corroboration of the fact that 25 CDs were seized, need not be doubted because they are public officers in the course of their duties and no mala fides can be impugned to them. Moreover, the very fact that the seized CDs did not contain any name on the cover clearly indicated that the accused had full knowledge that the copy right was in the name of complainant IMI, despite which he carried on business of selling pirated CDs. Moreover, the very fact that the seized CDs did not contain any name on the cover clearly indicated that the accused had full knowledge that the copy right was in the name of complainant IMI, despite which he carried on business of selling pirated CDs. The finding of guilt has been arrived at concurrently by two Courts below and this Court in exercise of his revisional jurisdiction cannot re-appreciate the entire evidence. 12. The only mitigating factor which I find from the submissions of learned Counsel is that the accused petitioner is 39 years old and the only bread winner of his family. Moreover, only 25 CDs were seized as submitted by learned Counsel for the petitioner and who also submitted that the accused was actually running a Kirana Shop and selling of MP-3 CDs was not his regular business, if at all any offence has occurred, it was due to ignorance. Also contending that it was a first offence and if at all this Court came to a conclusion that the accused petitioner was guilty, he was fully liable to be entitled for release on Probation of Offender's Act relying on Narayandas vs. State of M. P., 1988(II) MPWN 106 , whereby this Court had for offence under section 7 of the Essential Commodities Act, 1955 granted benefits under the Probation of Offenders Act to the appellant on the ground that the appellant was first offender and the Court had affirmed that no fruitful purpose would be achieved by calling 13. Also to bolster his submissions, learned Counsel relied on Ghanshyam Das vs. Municipal Corporation of Delhi, AIR 1975 SC 845 and Baba Raghunath Naik vs. Mrs. Terezinha Pacheco Faria, AIR 1967 Goa, Daman and Diu 95 (V-54 C-14). The Court had in the criminal revision directed that the petitioner was held guilty for commission of offence under section 379 of the Indian Penal Code. The Court, although upheld the conviction since there was no previous conviction against the accused as the theft pertained to a Coconut tree had released the offender only with an admonition and ordering to pay the compensation. Relying on Atmaccori Ramamurty vs. The State, AIR 1967 Orissa 54 (V54 C 24). 14. The Court, although upheld the conviction since there was no previous conviction against the accused as the theft pertained to a Coconut tree had released the offender only with an admonition and ordering to pay the compensation. Relying on Atmaccori Ramamurty vs. The State, AIR 1967 Orissa 54 (V54 C 24). 14. Hence, considering the record and the submissions of the learned Counsel, I concur with the findings of conviction of the accused, however, although I uphold the conviction of the accused petitioner for offence under section 51 and 63 of the Copy Right Act, and the fact that since the minimum sentence has been imposed and cannot be reduced and no fruitful purpose would be served in sending the petitioner who is on bail back to jail, it is further, directed that the petitioner shall be released on probation on his entering into a bond for good behaviour for one year before the trial Court and also a personal bond for Rs. 5000/- with one surety to the like amount to appear and receive the sentence when called upon during the period of one year from today, in case he does not abide by the bond of good conduct and behaviour. 15. With the above directions, the revision is partly allowed to the extent hereinabove indicated.