Delhi District Court
State vs . Parwez Khan on 16 January, 2023
IN THE COURT OF MS. SHIVANI CHAUHAN,
CHIEF METROPOLITAN MAGISTRATE,
SOUTH-EAST DISTRICT, NEW DELHI
CNR No. DLSE02-006076-2016
State Vs. Parwez Khan
FIR No. : 85/13
U/s : 103 / 104 Trade Mark Act r/w Section 63 Copyright Act.
Police Station: EOW South-East
Cr CASES : 95816/2016
Date of institution of case : 12.04.2016
Date of reserving of judgment : Not reserved.
Date of pronouncement of judgment : 16.01.2023
JUDGMENT
1. Serial No. of the Case : 95816/2016
2. Date of Commission of Offence : 13.05.2013
3. Name of the complainant : Sh. Rajesh Mishra,
Authorized Representative of
The Publishers Association of
U. K. and India.
4. Name, parentage & address of accused : Parwez Khan S/o Sh. Ahmed Ali Khan, R/o A-34, Top Floor, Thokar No. 6, Abul Fazl Enclave, Okhla, New Delhi 110025.
Aged about 50 years.
5. Offence complained of or proved : U/s 103 / 104 Trade Mark Act & 63 Copyright Act.
6. Plea of Accused : Pleaded not guilty
7. Final Order : Acquitted.
FIR No: 85/13 State Vs. Parwez Khan Page No. 1
JUDGMENT Introduction:
1. On 06.02.2013, Sh. Rajesh Mishra, the Authorized Representative (hereinafter referred to as 'AR') of The Publishers Association of U.K. and India, S/o Lt. Sh. Rampal Mishra, R/o House No. A-2E, CMA Tower, Second Floor, Sector - 24, Noida, U. P. gave a written complaint to Economic Offences Wing of the Crime Branch (hereinafter referred to as 'EOW') regarding Copyright Violations of the 19 different publishers. Upon receipt of information, a Raiding Team was formed and raid was conducted at House No. F-4, Gali No. 4, Abul Fazal Enclave, Jamia Nagar.
2. In pursuance of the Raid, 282 Books of different publishers were found and seized. AR Sh. Rajesh Mishra who was also part of the Raiding Team, checked all the books and opined that the Books which were allegedly recovered from the possession of accused Parwez Khan were pirated books.
FIR No: 85/13 State Vs. Parwez Khan Page No. 2
Prosecution's Case :
3. The case of the prosecution is that on 06.02.2013, a complaint was given by Sh. Rajesh Mishra, AR on behalf of The Publishers Association of U. K. and India regarding the copyright infringement of books of different publishers including Harper Collins, Penguin Books, Random House, Bloomsbury Publishers, Tata Mcgrawhill etc. by one Parwez Khan S/o Sh. Ahmed Ali Khan at House No. F-4, Gali No. 4, Abul Fazl Enclave, Jamia Nagar.
Upon receipt of this information, present FIR which is Ex.A-1 was registered for offences of Copyright Act, 1957 (Amendment Acts 1984 & 1994) and Trademark Act. A raiding party comprising a number of police officials, complainant Rajesh Mishra was constituted. At around 02:10 pm, a raid was conducted at House No. F-4, Gali No. 4, Abul Fazal Enclave, Jamia Nagar, Delhi where a person namely Parwez Khan was found. From that house, 282 pirated versions of books of 19 different publishers were recovered. After investigation, chargesheet was filed against accused Parwez Khan for offence u/s 103 / 104 Trade Mark Act and 63 of the Copyright Act.
FIR No: 85/13 State Vs. Parwez Khan Page No. 3
4. Accused Parwez Khan was summoned. Copy of chargesheet was supplied to him. Subsequently, vide Order dated 26.05.2016, charge was framed against accused by Ld. Predecessor Court for the offence u/s 103 / 104 Trade Mark Act 1999 r/w Section 63 of the Copy Right Act. Accused pleaded not guilty and claimed trial. Matter was then listed for recording of Prosecution's Evidence. To prove its case, prosecution examined six witnesses.
5. Sh. Rajesh Mishra was examined by the prosecution as PW1.
He deposed that in the year 2013, he was authorized representative of The Publishers Association of U. K. and India which is a group of 19 publishers comprising Harper Collin, Penguin Books, Random House, Blooms Berry Publishers, Tata Mcgrawhill etc. He also had separate authorization letters cum Power of Attorneys from each publishers for conducting surveys and filing complaints. He further deposed that in early 2013, he came to know that some suspect persons were selling pirated books of different authors and publishers and he was authorized to file a report under Copy Right violations of their work. On 06.02.2013, he filed a complaint to DCP, EOW, Crime Branch Ex.PW1/A and Sub-Inspector C. B. Singh was deputed to inquire in the present case. He further FIR No: 85/13 State Vs. Parwez Khan Page No. 4 deposed that on 13.05.2013, he reached the office of EOW and handed over the exact location of the place of offence Ex.PW1/A1. He further deposed that he joined the raiding party at the instructions of PW4 Sub-Inspector C. B. Singh and reached at House No. F-4, Gali No. 4, Abul Fazal Enclave, Jamia Nagar and total 282 books belonging to 05 publishers i.e. Harper Collins, Penguine Books, Random House, Bloomsbury Publishers, Tata Mcgrawhill were recovered from the possession of the accused. He further submitted that he being the expert, had identified the pirated versions of books. Thereafter, IO seized the aforesaid pirated books vide seizure memo Ex.PW1/B. He further deposed that the pullanda of the said case property were sealed with the seal of CBS. He further deposed that accused was arrested by IO in his presence vide arrest memo Ex.PW1/E. He further deposed that he had handed over the power of attorney of the company M/s Penguin Book Ltd (Mark A)(Ex.PW1/W), M/s Random House Book Ltd (Mark B)(Ex.PW1/X), M/s Tata Macgraw Hill Education Pvt Ltd (Mark C)(Ex.PW1/Y), Bloomsbury Publishing PLC (Mark B)(Ex.PW1/Z) which were issued in his favour to IO and which were seized vide seizure memo Ex.PW1/I. The list of the member FIR No: 85/13 State Vs. Parwez Khan Page No. 5 of the publishers association and his authorization are Ex.PW1/J. He identified the accused and the case property which were recovered from the possession of the accused before the Court.
6. ASI Mumtaz Ali was examined by the prosecution as PW2.
He deposed that on 13.05.2013 Sh. Rajesh Mishra (AR) came to the office of EOW / Crime Branch and met the IO and informed that accused was stocking and selling pirated books of his clients. Thereafter, IO constituted a raiding party including PW1 Sh. Rajesh Mishra, Sub-Inspector Dhan Singh, Head Constable Naresh, Head Constable Uday Pal, Head Constable Sanjeev, Head Constable Dinesh Kumar and Woman Sub-Inspector Sneh Lata. He further deposed that under the supervision of IO Sub-Inspector C. B. Singh, they reached at the address of the accused and at the instance of complainant Sh. Rajesh Mishra, accused was found present at his address and after conducting search of the house of the accused, 282 pirated books of the original by 04 publishers were recovered and, thereafter, pullanda of the said books were prepared using 04 gunny bags and they were sealed with the seal of CBS. After that, the said case property was seized vide seizure memo Ex.PW1/B. He further deposed that the accused was arrested FIR No: 85/13 State Vs. Parwez Khan Page No. 6 in his presence vide arrest memo Ex.PW1/E. He identified the accused and the case property before the Court. Case property is Ex.P1(colly).
7. Sh. Rakesh Sood was examined as PW3. He deposed that he was working in TATA Mcgraw Hill Education (India) Pvt Ltd since 04.09.1995. He deposed that he had identified the signature of Mr. Ajay Shukla which was mentioned at the power of attorney Mark C which was executed in favour of Mr. Dilip Kumar, Vishal Ahuja and complainant Sh. Rajesh Mishra.
8. Inspector C. B. Singh was examined as PW4. He deposed that complaint Ex.PW1/A was marked to him for inquiry and after that, he prepared rukka Ex.PW4/A and got the FIR registered. The investigation of the case was assigned to him and on 24.04.2013, complainant Sh. Rajesh Mishra handed over the power of attorney with regard to M/s Penguin, M/s Random House, M/s T. M. H. Education and M/s Bloomsbury which are Mark A to Mark D with list of publishers association Ex.PW1/J. He seized the same vide seizure memo Ex.PW1/I. On 13.05.2013, at about 12:15 pm, complainant Sh. Rajesh Mishra arrived at his office and provided FIR No: 85/13 State Vs. Parwez Khan Page No. 7 information that the accused was engaged in stocking and selling the pirated books of his clients publishers at House No. 4, Abul Fazal Enclave, Okhla, New Delhi near Bikaner Sweets. The said information was provided to him in writing also vide Ex.PW1/A-1. Subsequently, he constituted a raiding party under the supervision of Inspector I. K. Jha and they reached at the residence of the accused at the instance of complainant Sh. Rajesh Mishra and the accused was found present at the aforesaid premises, being the occupant of the same and on the search of said premises, total 282 pirated books were recovered and the accused failed to produce any bill / any document regarding said pirated books. Complainant identified the same as fake / pirated copies. Inspector C. B. Singh seized the said 282 books in 04 gunny bags after sealing them with the seal of CBS vide seizure memo Ex.PW1/B. He arrested the accused vide arrest memo Ex.PW1/E. Accused had handed over photocopy of domestic gas consumer card (Mark X-1) (Mark X-2) proving himself to be the occupant of the said premises vide seizure memo Ex.PW4/A. He produced the case property as per requirement of Section 64 of Copyright Act. He had recorded the statement of witnesses. He identified the accused and the case FIR No: 85/13 State Vs. Parwez Khan Page No. 8 property before the Court. Case property is already Ex.P-1.
9. Inspector Yogendra Kumar was examined by the prosecution as PW5. He deposed that in the year 2016, he was posted as Sub- Inspector at Police Station EOW, the investigation of the case was assigned to him in the year 2016. During the course of investigation, he recorded the statement of the landlord of the premises namely Aamir Rafat. He also asked him to produce the rent agreement. However, he could not produce the same. Thereafter, he prepared the charge-sheet and submitted the same before the Court.
10. Sh. Aamir Rafat was examined as PW6. He deposed that he is the owner of the location where the case property was found and accused was lived there on rent for 11 months. He further deposed that on the day when raid was conducted, accused was a tenant in his house. He entered into a rent agreement with accused. However, he could not produce the same before the IO as he stated that he lost the same. IO recorded his statement to this effect. He identified the accused before the Court.
FIR No: 85/13 State Vs. Parwez Khan Page No. 9
11. All prosecution witnesses were duly cross examined by Ld Defense Counsel. Prosecution evidence was closed and matter was then listed for examination of accused u/s 313 Cr.P.C.
12. All the incriminating evidence was put to the accused and his statement was recorded u/s 313 Cr.P.C. on 17.11.2022. The accused denied the prosecution case in its entirety and claimed innocence and submitted that he has been falsely implicated in the present case. Despite opportunity, no independent evidence was led by the accused in his defence. Final arguments were heard as Ld. Counsel for accused was ready and prepared.
13. Details arguments have been heard from Ld. APP for State and Ld. Counsel for accused. Record perused carefully. Relevant Law:-
The settled propositions of criminal are :
(A) Prosecution is required to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence.FIR No: 85/13 State Vs. Parwez Khan Page No. 10
(B) In order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused.
(C) The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused.
(D) The accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
Law relating to requirement of independent witness
14. Sections 100 Clause 4 & 5 Cr.P.C: Requirement of independent witnesses only when search is made on the person of the accused or at some place from where the incriminating articles is recovered and not when corroboration of happening of event in which accused is alleged to be involved is concerned. Minor contradictions do not effect the credibility of the prosecution case.
FIR No: 85/13 State Vs. Parwez Khan Page No. 11
15. It was held in the judgment titled as Ravi Kapoor V. State of Rajasthan, 2012 VIII AD (S.C) 73 that "Minor variations are bound to occur in the statements of the witnesses when their statements are recorded after a considerable lapse from the date of occurrence".
Overall context of the case is to be seen.
16. It also the settled law laid down in Sardul Singh Vs. State of Haryana AIR 2002 SC 3462 that Courts have a duty to undertake a complete and comprehensive appreciation of all the vital features of the case and entire evidence with reference to broad and reasonable probabilities of the case in their attempt to find out proof beyond reasonable doubt.
Law relating to Evidentary value of testimony of Police Officers:
17. The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption FIR No: 85/13 State Vs. Parwez Khan Page No. 12 that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds; Karamjit Singh v. State (Delhi Administration), AIR 2003 SC 1311.
Section 63 Copyright Act provides as Under :-
"Offence of infringement of copyright or other rights conferred by this Act.--Any person who knowingly infringes or abets the infringement of--
(a) the copyright in a work, or
(b) any other right conferred by this Act, 1[except the right conferred by section 53A] 1[except the right conferred by section 53A]" 2[shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees: Provided that 3[where the infringement has not been made for gain in the course of trade or business] the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.
Section 103 in The Trade Marks Act, 1999 provides as Under:-
Penalty for applying false trade marks, trade descriptions, etc.
--Any person who--
(a) falsifies any trade mark; or
(b) falsely applies to goods or services any trade mark;FIR No: 85/13 State Vs. Parwez Khan Page No. 13
or
(c) makes, disposes of, or has in his possession, any die, block, machine, plate or other instrument for the purpose of falsifying or of being used for falsifying, a trade mark; or
(d) applies any false trade description to goods or services; or
(e) applies to any goods to which an indication of the country or place in which they were made or produced or the name and address of the manufacturer or person for whom the goods are manufactured is required to be applied under section 139, a false indication of such country, place, name or address; or
(f) tampers with, alters or effaces an indication of origin which has been applied to any goods to which it is required to be applied under section 139; or
(g) causes any of the things above-mentioned in this section to be done, shall, unless he proves that he acted, without intent to defraud, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.
Section 104 in The Trade Marks Act, 1999 provides as Under:-
Penalty for selling goods or providing services to which false trade mark or false trade description is applied.-- Any person who sells, lets for hire or exposes for sale, or hires or has in his possession for sale, goods or things, or provides or hires services, to which any false trade FIR No: 85/13 State Vs. Parwez Khan Page No. 14 mark or false trade description is applied or which, being required under section 139 to have applied to them an indication of the country or place in which they were made or produced or the name and address of the manufacturer, or person for whom the goods are manufactured or services provided, as the case may be, are without the indications so required, shall, unless he proves,--
(a) that, having taken all reasonable precautions against committing an offence against this section, he had at the time of commission of the alleged offence no reason to suspect the genuineness of the trade mark or trade description or that any offence had been committed in respect of the goods or services; or
(b) that, on demand by or on behalf of the prosecutor, he gave all the information in his power with respect to the person from whom he obtained such goods or things or services; or
(c) that otherwise he had acted innocently, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees. Discussion on merits :
The primary question to be determined is whether the case property was recovered from the possession of the accused Parwez Khan from the spot and whether the said Books were pirated as alleged.FIR No: 85/13 State Vs. Parwez Khan Page No. 15
18. The case of the prosecution is that in pursuance of complaint filed by complainant Rajesh Singh, a raiding Party consisting of the IO/ SI C.B. Singh, ASI Mumtaj, SI Dhan Singh, HC Naresh, HC Uday Pal, HC Sanjeev, HC Dinesh Kumar, ASI Snehlata & Complainant was formed on 13.05.2013 on the verbal direction of the Senior Officials.
19. A raid was conducted at Gali no. 4, Abu Fazal Enclave, Jamia Nagar, New Delhi. Admittedly, this was a residential accommodation. There is nothing on record to show that accused had been indulging in sale of the alleged pirated books from this premises.
20. As per the Police officials, few public persons were asked to join the investigation by the IO but they refused without disclosing their names and addresses. The residence where the raid was allegedly conducted is situated in a building which was occupied. The locality is also densely populated. From the statement of witnesses, it has come on record that even the neighbors of accused had gathered when raid was taking place. Despite presence of public persons at the spot, IO did not make any independent person FIR No: 85/13 State Vs. Parwez Khan Page No. 16 as a witness of the raid. Law is well settled that sincere effort should be made to join the public witness. In these circumstances, the recovery itself become doubtful.
21. Apart from the recovery of the case property, the prosecution has also failed to prove that books which were seized were pirated as alleged. IO stated that Expert Sh. Rajesh Mishra had verified the books and informed that all of them that they were pirated. Apart from Sh. Rajesh Mishra no one else checked the recovered Books. All the witnesses relied upon the wisdom of Sh. Rajesh Mishra. None of the other Prosecution witness was an expert or had himself examined any of the allegedly recovered books. Thus, they could not have opined as to the genuineness or otherwise of the books. The testimonies of all other witnesses is based on what they have heard from Sh. Rajesh Mishra and is thus, merely hearsay in nature which is not admissible to this extent. It is only Sh Rajesh Mishra whose opinion formed the foundation of entire case of prosecution as he only informed everyone else that the books checked by him all were pirated. However, he did not inform anyone about the reason on the basis of which he concluded that the books were alleged to be pirated. The prosecution has Miserably failed to prove FIR No: 85/13 State Vs. Parwez Khan Page No. 17 that the seized material was pirated.
22. The case is primarily based on the finding of alleged expert who examined the books at the spot and found them to be pirated versions. No part of case property was sent for examination by nay Expert. When the case property was produced at the time of evidence before the Court, the original books were not produced at the same time. The alleged expert Sh. Rajesh Mishra did not depose anything as to on what grounds he has formed the opinion that the recovered books were pirated versions and not the original. No independent expert was examined in the case. Sh. Rajesh Mishra never compared the alleged case property with the original at the time of his deposition and did not give any reason for his opinion that the recovered case property was pirated. All the other witnesses have relied on the wisdom of Sh. Rajesh Mishra. In view of the above discussion, it would not be safe to rely upon the sole testimony of Sh. Rajesh Mishra as he is the complainant himself and also the alleged expert. There is no FSL report. No other expert was examined by the prosecution to prove that the books allegedly recovered from the accused were pirated. Further the existence of copyright and/or Trademark in favour of the concerned FIR No: 85/13 State Vs. Parwez Khan Page No. 18 publishers was the root of prosecution's case. Prosecution has not placed even a single document on record which would show existence of any such copyright and/or Trademark in favour of any aggrieved publishers. This hits at the very root of the prosecution's case and demolishes it entirely. It is settled proposition of criminal law that prosecution is required to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal. In the present case, Prosecution has failed to prove the essential ingredients of section U/s 63 Copyright Act & U/s 103/104 Trade Mark Act. There are several other loopholes in the testimony of the FIR No: 85/13 State Vs. Parwez Khan Page No. 19 prosecution's witnesses which hit the very roots of the prosecutions case. When the main pillars of the case of prosecution have fallen, it would be futile to look to the pillars which stand and try and ascertain whether the structure can be salvaged. Prosecution has further failed to show any proximity or chain of events to establish the fact that accused was present at the spot as alleged or that the books allegedly recovered from the spot were pirated to bring home the offence punishable Under Section 63 Copyright Act & U/s 103/104 Trade Mark Act against accused. On the basis of discrepancies and the contradictions as pointed out earlier, benefit of doubt goes in favour of accused. Accused Parwez Khan is acquitted for the offence Under Section 63 Copyright Act & U/s 103/104 Trade Mark Act. Ordered Accordingly. Announced in the open Court on 16.01.2023.
(Shivani Chauhan) Chief Metropolitan Magistrate South East, Saket Courts New Delhi FIR No: 85/13 State Vs. Parwez Khan Page No. 20