Delhi District Court
State vs Pawan Sharma on 27 January, 2012
IN THE COURT OF MS KIRAN BANSAL
ADDL. CHIEF METROPOLITAN MAGISTRATEI/EAST
KARKARDOOMA COURTS DELHI.
STATE V/s PAWAN SHARMA
FIR No: 222/01
PS: Mandawali/Crime Branch
U/s: 63/68A Copy Right Act
& 292 IPC
JUDGMENT
a). ID No. of the case : 02402R0090562002
b). Srl. number of the case : 95/2001
c). Date of commission of offence : 16.07.2000
d). Name of complainant , if any : Sh. Sanjeev Kumar
S/o Sh. Om Prakash
R/o E39, East of Kailash,
New Delhi.
e). Name & address of accused : Sh. Pawan Sharma
S/o Sh. Fakir Chand
R/o 318, Pandit Mohalla,
Village Mandawali, Delhi.
f). The offence complained of : U/s 63/68A Copy Right Act &
292 IPC
g). The plea of accused : Pleaded not guilty
h). Final order : Acquitted.
FIR no. 222/01 State Vs. Pawan Sharma Page no.1/11
i). The date of such order : 27.01.2012
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The facts of the present case have been disclosed in the complaint of the complainant that on 16.07.2000 at about 05.10 pm at 105, Chaudhary Complex, 3rd floor, Chander Vihar, I.P.Extn., Delhi within the jurisdiction of PS Mandawali, Delhi the accused namely Pawan Sharma was found in the possession of infringed cassettes of various films for displaying and not containing the particulars as required and thus, committed an offence punishable u/s 63/68A of Copy Right Act and that he was also found in possession of two VCDs containing obscene and lascivious scenes for the purpose of displaying and thus, also committed an offence punishable U/s 292 IPC. On the complaint of the complainant, FIR bearing no. 222/01 U/s 63/68A C. R. Act & 292 IPC was registered against the accused Pawan Sharma, investigation were carried out and challan was prepared and presented in the court after completion of the investigation.
2. Subsequent to the filing of the challan, cognizance was taken. Thereafter, the charge for the offence U/s 63/68A C. R. Act & 292 IPC was framed on 03.10.2002 to which accused pleaded not guilty and claimed trial and hence the matter was, thereafter, listed for PE.
3. With a view to establish its case, the prosecution has examined PW1 Sanjiv FIR no. 222/01 State Vs. Pawan Sharma Page no.2/11 Kumar who deposed that he had been authorized by various producers and copyright holders to take the follow up action against the violation of copyright. On 16.07.2001, he had received information that the film 'Gadar' was being shown illegally on Hari Om Cable Network at 105, Chaudhary Complex, Chander Vihar, I. P. Extn. who was not authorised for the same. He made a complaint in this regard which is Ex.PW1/A. Later on, inspector Sandip Bhyala instructed SI B. K. P. Singh to take action on this complaint. After constituting a raiding party comprising SI B. K. P. Singh, HC Yattar Singh & HC Rajender at about 5 pm, they reached at Hari Om Cable Network at 105, Chaudhary Complex, Chander Vihar, I. P. Extn. where accused Pawan Sharma was found and the premises was searched. The cassette which was being displayed was taken out from the VCR and the cassette was not having the details of the Censor Certificate and copyright particulars over it. Some more video cassettes were also recovered from there. Thereafter, all the five cassettes were sealed in a pullanda. Four video cassettes and two blue films were also recovered from the said premises and the same were sealed in two separate pullandas. All three sealed pullandas were sealed with the seal of RA. The tools/equipments which were used in screening of films on cable i.e. VCR, Colour TV, modulator, amplifier, supplanter, audiovideo leads, cable wire etc were also taken into possession vide seizure memo Ex.PW1/B. Thereafter, FIR was got registered through HC Rajinder. Accused was arrested and he was personally searched vide personal search memo Ex.PW1/C. The documents regarding the copyright are marked PW1/D to FIR no. 222/01 State Vs. Pawan Sharma Page no.3/11 PW1/H. This witness was cross examined by Ld. defence counsel.
4. PW2 ASI Rajinder Singh who deposed that on 16.07.2001, he alongwith SI V.K.P.Singh, HC Attar Singh, Ct. Naresh, Inspector Sandip Bhayala and complainant Sanjiv Kumar reached at I.P. Extn. near Kali Temple after receiving a complaint regarding the piracy. Where they conducted a raid at Chaudhary Complex at Hari Om Cable Network and one Pawan Sharma found them. On searching the spot, they found one film was being screened on Cable T.V. and also found 11 cassettes of new released films out of them, two cassettes were found blue and some other items pertaining to the telecast i.e. VCR, Amplifier, T.V. All these articles alongwith the recovered cassettes were seized vide seizure memo Ex. PW1/B. Thereafter, IO prepared a rukka and the case FIR was got registered and accused was arrested. This witness was also cross examined by Ld. Defence counsel. In his cross examination, he deposed that before conducting the raid in the premises, no neighborer was contacted to join the raiding party and before the registration of the present case, the complainant has produced the original papers regarding the authorization before the IO.
5. PW3 HC Desraj who deposed that on 16.07.2001, he recorded FIR No. 222/01 on the basis of rukka which was sent by SI V.K.P. Singh brought by HC Rajinder Singh which is Ex.PW3/A and same was handed over to HC Ravinder.
FIR no. 222/01 State Vs. Pawan Sharma Page no.4/11
6. PW4 SI V. K. P. Singh who deposed that a complaint was received from Sanjiv Kumar regarding the display of newly released Hindi films illegally on cable T.V. On the basis of this information, he alongwith other staff members of raiding party, reached near the Kali Mandir, PPG and conducted a raid at X105, Chaudhary Complex, Chander Vihar, PPG, II floor where a cable T.V. Network was in operation and a movie was being screened on T.V. with the help of VCR and other devices. During the search of the premises, four other video cassettes of newly released Hindi films and four video cassettes of old Hindi films and two video cassettes having no description were found. The video cassettes which were not having any description printed over them were checked and found having obscene and found to be pornographic. One Pawan Sharma who was the owner of the premises did not produce any license or authority to display the newly released films on cable T.V network. The recovered cassettes were also not bearing the mandatory details like name and address of the producer/copyright holder etc. Thereafter, a rukka was prepared which is Ex.PW4/A and all the recovered articles were seized vide seizure memo Ex.PW4/B. Pawan Kumar owner of the premises was interrogated. IO arrested the accused vide arrest memo Ex.PW4/C and accused was personally searched vide personal search memo Ex.PW4/D and the case property was deposited in the Malkhana and accused was sent to lockup. Next day, accused was taken out from lockup and was again interrogated and his disclosure statement Ex.PW4/E was recorded. This FIR no. 222/01 State Vs. Pawan Sharma Page no.5/11 witness was also cross examined by Ld. Defence counsel.
7. PW5 HC Attar Singh who deposed in terms of the PW1, PW2 & PW4. This witness was also cross examined by Ld. Defence counsel. In his cross examination, he deposed that the area where raid conducted is thickly populated area, no attempt was made by the IO to join any respectable person from the locality or the neighborhood to join the raiding party before sending the rukka.
8. Thereafter, after giving sufficient opportunities, no other PW appeared therefore, the PE was closed vide order dt. 23.12.2010 and the matter was listed for SA. Thereafter, statement of the accused Pawan Sharma U/s 313 Cr.P.C was recorded without oath on 13.07.2011 and after putting all the incriminating evidence upon him to which he pleaded innocent and stated that nothing had been recovered from his possession and he has been falsely implicated in the present case. Thereafter, the matter was listed for DE but after giving ample opportunities, accused could not produce any defence witness and therefore, DE was directed to be closed after giving last and final opportunity vide order dt. 14.09.2011. The matter is, thus, listed for the purpose of the final arguments and the arguments heard and entire record have been perused.
9. I have heard the submission of Ld. Sub. APP for the State and the accused FIR no. 222/01 State Vs. Pawan Sharma Page no.6/11 himself. I have also carefully perused the record. The court has carefully examined the entire material available on record including the testimony of the PWs recorded before the Court. There are lot of witnesses who have been examined in the present case. PW1 Sanjiv Kumar who was authorized by various producers and copyright holders to take the follow up action against the violation of copyright. He made a complaint Ex.PW1/A. After constituting a raiding party comprising SI B. K. P. Singh, HC Yattar Singh & HC Rajender at about 5 pm, they reached at Hari Om Cable Network at 105, Chaudhary Complex, Chander Vihar, I. P. Extn. where accused Pawan Sharma found and the premises was searched. Thereafter, all the five cassettes were sealed in a pullanda. Four video cassettes and two blue films were also recovered from the said premises and the same were sealed in two separate pullandas. All three sealed pullandas were sealed with the seal of RA. The tools/equipments which were used in screening of films on cable i.e. VCR, Colour TV, modulator, amplifier, supplanter, audiovideo leads, cable wire etc were also taken into possession vide seizure memo Ex.PW1/B. Thereafter, FIR was got registered through HC Rajinder. Accused was arrested and he was personally searched vide personal search memo Ex.PW1/C. The documents regarding the copyright are marked PW1/D to PW1/H. PW2 ASI Rajinder Singh who alongwith SI V.K.P.Singh, HC Attar Singh, Ct. Naresh, Inspector Sandip Bhayala and complainant Sanjiv Kumar reached at I.P. Extn. near Kali Temple after receiving a complaint regarding the piracy. Where they conducted a raid at Chaudhary Complex at Hari Om Cable Network and one FIR no. 222/01 State Vs. Pawan Sharma Page no.7/11 Pawan Sharma found them. On searching the spot, they found one film was being screened on Cable T.V. and also found 11 cassettes of new released films out of them, two cassettes were found blue and some other items pertaining to the telecast i.e. VCR, Amplifier, T.V. All these articles alongwith the recovered cassettes were seized vide seizure memo Ex. PW1/B and FIR was got registered and accused was arrested. PW3 HC Desraj who was stated to be the DO of the present case. He only recorded the FIR No. 222/01 on the basis of rukka which is Ex.PW3/A. PW4 SI V. K. P. Singh who was stated to be the IO of the present case deposed that a complaint was received from Sanjiv Kumar regarding the display of newly released Hindi films illegally on cable T.V. On the basis of this information, he alongwith other staff members of raiding party, reached near the Kali Mandir, PPG and conducted a raid at X105, Chaudhary Complex, Chander Vihar, PPG, II floor where a cable T.V. Network was in operation and a movie was being screened on T.V. with the help of VCR and other devices. During the search of the premises, four other video cassettes of newly released Hindi films and four video cassettes of old Hindi films and two video cassettes having no description were found. The video cassettes which were not having any description printed over them were checked and found having obscene and found to be pornographic. He prepared rukka Ex.PW4/A and seized all the recovered articles vide seizure memo Ex.PW4/B. He arrested the accused vide arrest memo Ex.PW4/C and accused was personally searched vide person search memo Ex.PW4/D and the case property was deposited to the Malkhana and FIR no. 222/01 State Vs. Pawan Sharma Page no.8/11 disclosure statement Ex.PW4/E was recorded. PW5 HC Attar Singh who deposed in terms of the PW1, PW2 & PW4.
10.Thereafter, after the completion of the Prosecution Evidence. The matter was thereafter listed for the purpose of the recording of the statement of the accused.
11.Statement of the accused U/s 313 Cr.P.C was recorded without oath and after putting all the incriminating evidence upon him to which he pleaded innocent and stated that nothing had been recovered from his possession and he has been falsely implicated in the present case. Accused did not lead any defence evidence, the matter is thus listed for the purpose of the final arguments and the arguments heard and entire record have been perused.
12.I have heard the submission of Ld. APP for the State and the accused himself. I have also carefully perused the record.
13.The court has carefully examined the entire material available on record including the testimony of the PWs recorded before the Court. The PW1/complainant in his cross examination has stated that IO had prepared the said site plan in his presence and had even shown the direction on the place of occurrence. Even PW5 in his cross examination has stated that IO had prepared the site plan. This site plan has not been placed on record FIR no. 222/01 State Vs. Pawan Sharma Page no.9/11 alongwith the chargesheet for the reasons best known to the IO. In fact IO PW4 SI V.K.P Singh during his cross examination has stated that he has prepared the site plan and again stated that he had not prepared the site plan. He was not very sure whether he has prepared the site plan or not. PW5 had only stated that the premises of the accused which was searched was on second floor. PW2 has not stated about this fact that the premises was at second floor. He could not even tell in which direction the door of the premises open where the search was conducted during his cross examination. Witnesses have admitted that there were shops nearby and the same were opened and despite that no other shopkeepers of the adjoining shops have been joined in by the IO as a witness to the recovery of the alleged CDs from the accused. Moreover, as per the statements of witnesses IO has requested the passersby to join the raiding party. No local resident or the inhabitant of the locality was requested and as per section 100 Cr.PC the IO should have joined two respectable persons from the locality before conducting the search.
14.In view of the stark anomalies and contradictions in the statement of witnesses as discussed herein above and especially in view of the failure of the IO to join any independent public witness during proceedings or investigation I have no hesitation in holding that the prosecution has miserably failed to prove its case against the accused beyond all the reasonable doubts and to bring his acts and conduct within four corners of the said provisions of law constituting any of such offence or within legal ambit which would warrant FIR no. 222/01 State Vs. Pawan Sharma Page no.10/11 his conviction and punishment in the present case. In view of the cardinal principle of law that prosecution must prove the guilt of the accused beyond reasonable doubts and every benefit of doubt must be given to the accused, hence, the accused is entitled to every benefit arising out of lacuna's in the prosecution case.
15.As far as section 292 IPC is concerned even if we take it for the sake of arguments that CDs were recovered from the accused then also mere possession of obscene material is not an offence. No evidence has come on record to prove the fact that the accused was using the obscene material for exhibiting also and therefore the ingredients of section 292 IPC are not satisfied.
16.In view of the above discussion where the evidence against the accused has been found to be deficient, the accused Pawan Sharma is acquitted of offence u/s 63/68A Copy Right Act and u/s 292 IPC. His Bail Bond stands cancelled. Surety Bond stands discharged. Endorsement, if any, made on any document be cancelled and documents, if any, seized or deposited be released on proper receipt and identification. File be consigned to record room. ANNOUNCED IN THE OPEN COURT ON THIS 27th DAY OF JANUARY, 2012.
(KIRAN BANSAL)
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE I
EAST/KARKARDOOMA COURTS, DELHI
FIR no. 222/01 State Vs. Pawan Sharma Page no.11/11