Madras High Court
Siva (Aged 20 Years) vs The Commissioner Of Police on 24 June, 2005
Author: P. Sathasivam
Bench: P. Sathasivam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 24/06/2005
Coram
The Hon'ble Mr. Justice P. SATHASIVAM
and
The Hon'ble Mr. Justice AR. RAMALINGAM
H.C.P. No. 273 of 2005
Siva (Aged 20 years),
S/o. Mathi @ Mathivanan,
No.13, Chidambaranar Street,
Thiruvalluvar Nagar,
East Tambaram, Chennai-600 059. .. Petitioner.
-Vs-
1. The Commissioner of Police,
Greater Chennai.
2. The Secretary to Government,
Prohibition and Excise Department,
Fort St. George, Chennai-600 009. .. Respondents.
Habeas Corpus Petition filed under Article 226 of the Constitution of
India, for issuance of a Writ of Habeas Corpus, calling for the records of the
first respondent, in Memo No. 386 of 2004 dated 17-12-2004, setting aside the
order of detention passed therein, and direct the respondents to produce the
petitioner namely Siva, son of Mathi @ Mathivanan, before this Court, now
confined at Central Prison, Chennai, and set him at liberty.
!Mr. R. Ravichandran:- For petitioner.
^Mr. Abudukumar Rajarathinam, Govt., Advocate
(Crl. Side):- For Respondents.
:ORDER
(Order of the Court was made by P. Sathasivam, J.,) The petitioner-Siva who was detained as Video Pirate under Section 3 (1) of Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), challenges the same on various grounds. The detention order was passed by the Commissioner of Police, Greater Chennai, Chennai with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.
2. The grounds on which the said detention is made is as follows:
On 30-11-2004 at about 6-30 P.M. one Ganesan, Grade I Police Constable 1284, Video Piracy Cell, C.B. C.I.D., appeared before the Inspector of Police, Video Piracy Cell, C.B., C.I.D., Chennai and lodged a special report. In his special report, he has stated that one Siva, Hari Shankar and Md. Siddique were keeping pirated V.C.Ds., for sale without copy rights at shop No. 349, B-Bazaar, Burma Bazaar, Chennai and requested to take action against them.
3. On 30-11-2004 Thiru R. Rajasekaran, Inspector of Police, Video Piracy Cell, C.B., C.I.D., Chennai, after making necessary entry in the G.D., along with his party proceeded to the said shop at No. 349, situated at B-Bazaar, Burma Bazaar, Chennai and reached the spot at 7.00 P.M., conducted search at the said shop between 7.00 P.M. and 7.45 P.M. and noticed pirated C.Ds., of new Tamil films such as 1)bew";r kdR about 24 discs, 2)kd;kjd; about 10 discs,3) l;uPk;!; about 42 dics 4)ml;lfhrk; about 52 discs, further Tamil film V.C.Ds., about 183 discs and Telugu film C.Ds., about 4 discs and Tamil film D.V.Ds., about 120 discs and obscene V.C.Ds., 17 discs found in the said shop. Since they were kept in the said shop without any rights, the same were seized under cover of mahazar attested by witnesses and the said Siva, Hari Shankar and Mohammed Siddique were arrested after informing the reason for arrest and also informed to their relatives about the arrest of each of them. The Inspector of Police, Video Piracy Cell, C.B., C.I.D., returned to the Video Piracy Cell and registered a case in Video Piracy Cell Crime No. 300/2004, under Sections 51, 52(A), read with Sections 63, 6 8(A) of Copy Right Act, 1957 and section 292 (A) of I.P.C., and 4 (1) read with 15 (2) of Tamil Nadu Exhibition of Films on T.V. Screen through V.C.R., and Cable Television Net Work (Regulation) Act, 1984. Hari Shankar is employed in the shop of Siva and Mohammed Siddique is a broker and through whom Siva is selling the C.Ds. All the three admitted before the investigation officer that they are selling the recently released film V.C.Ds., without obtaining any copy rights from the concerned authorities and selling the same by keeping in their shops to the public.
4. The grounds further show that the Inspector of Police, during the course of investigation, examined various film producers, film distributors, theatre owners and public and recorded their statements, who stated that the film industry is facing a severe crisis because of the prevalence of video piracy which results in audience staying away from the theatres and loss of revenue to the Government, the producers, the distributors and the theatre owners. The petitioner Siva is habitually committing offences against Copy Right Act, 1957 and also infringing copy rights in relation to the cinematograph films which is punishable under the Copy Right Act, 1957. It further shows that by such illegal distribution of compact discs infringing copy right, the public are also indirectly being abetted to commit the said crime of infringing copy rights and thereby acted in a manner prejudicial to the maintenance of public order. The detaining authority after satisfying himself that the said Siva is the Video Pirate and there is a compelling necessity to detain him in order to prevent him from indulging in such acts which are prejudicial to the maintenance of public order under the provisions of the Tamil Nadu Act 14 of 1982.
5. Heard learned counsel for the petitioner as well as learned Government Advocate for respondents.
6. Learned counsel appearing for the petitioner, after taking us through the grounds of detention and all other connected materials, has raised the following contentions:
i) The impugned order of detention is liable to be quashed on the ground of non-application of mind on the part of the detaining authority. Since when the co-accused were released on bail, the grounds of detention proceeds as if the detenu and the other coaccused were remanded as prisoners till 14-12-2004;
ii) There is a delay in considering the representation of the petitioner;
iii) The detaining authority has not considered his representation dated 03-01-2005;
iv) Copy of special report and mahazar were not furnished to the detenu which prevented him in making effective representation;
v) There is no public order warranting the detaining authority to detain the detenu under Act 14/1982;
vi) Some of the pages, particularly page 89 of the booklet are not readable and in spite of Government letter, the same were not supplied;
vii) In the absence of imminent possibility of coming out of the detenu on bail, detention order is not warranted.
Learned Government Advocate met all the above contentions by placing relevant materials which we will consider hereunder.
7. Coming to the first contention that the impugned order is liable to be quashed on the ground of non application of mind on the part of the detaining authority, learned counsel for the petitioner by drawing to our notice to the averments made in para 3 of the grounds, would submit that though the detaining authority has stated that the detenu Siva, and co-accused Hari Shankar, and Mohammed Siddique were produced before learned Additional Chief Metropolitan Magistrate, Egmore, Chennai-8 and lodged at Central Prison, Chennai as remand prisoners till 14-12-2004, the paper book supplied to the detenu showed that the co-accused were released and this aspect was not considered by the detaining authority. On a perusal of the said grounds and the relevant passage from the booklet namely page 239, we reject the said contention. Page 239 of the booklet shows that though on 1-12-2004, all the 3 accused were produced at 3-30 P.M. and the learned Additional Chief Metropolitan Magistrate after recording that no complaint against the police, remanded them till 14-12-2004. However, on 14-12-2004, accused No.1, namely, M. Siva, petitioner in this petition, alone was produced at 2-45 P.M. Here again, after recording the fact that there was no complaint against the police, the Magistrate remanded him till 28-12-2004. As rightly pointed out, the statement made in para 3 of the grounds of detention is only a narration of facts and the fact remains that on 14-12-2004, the petitioner alone was produced before the learned Magistrate and his remand was extended till 28-12-2004. We are satisfied that there is no flaw as claimed by the petitioner; accordingly, the said contention is rejected.
8. Coming to the second contention regarding delay in considering his representations, the learned Government Advocate placed details regarding disposal of representations of the petitioner dated 4-1-2005 and 19-1-2005. On perusal of the same, we are satisfied that there was no delay and his representations were duly considered and rejected without any loss of time. We are satisfied that there is no lacuna on the part of the Government in considering his representations. There is no merit in the claim.
9. Regarding third contention that his representation dated 3-1-2005, addressed to the detaining authority, has not been considered, as rightly pointed out by the learned Government Advocate, the said representation was made long after passing of the detention order, and approval order by the Government. Even otherwise, it is not in dispute that other two representations were duly considered and rejected by the authority, hence the said contention is also liable to be rejected.
10. Coming to the other contention regarding nonsupply of special report and cover mahazar, in so far as the special report of the constable, as rightly pointed out by the learned Government Advocate, it is an intimation by the investigation authority to the higher authority regarding the commission of an offence, hence no officer shall be compelled to disclose how he got the information as to the commission of offence. Further, the booklet shows that copy of the cover mahazar was supplied to the detenu. Hence, this contention also is liable to be rejected.
11. Learned Government Advocate has also brought to our notice that bail order was placed before the State Government as well as before the Advisory Board. The File produced by the Government Advocate amply supports the above claim. Hence the contra argument of the learned counsel for the petitioner is liable to be rejected.
12. Regarding the claim that he was not supplied with legible copy, particularly page 89 of the booklet, learned Government Advocate has produced a copy of the letter dated 7-4-2005 in and by which the Commissioner of Police, Chennai City has communicated fresh legible and readable copy of page 89 of the booklet. It is not in dispute that all other pages supplied to the detenu along with the grounds of detention are legible and readable; hence the said contention is also rejected.
13. Coming to the claim that there is no imminent possibility in detaining him in prison as video pirate, a perusal of para 4 of the grounds of detention shows that the detaining authority has possessed all required materials. It is also clear that the detaining authority was aware that the petitioner Siva is in remand on the date of the detention order and a bail application, which was moved before the Additional Chief Metropolitan Magistrate, Egmore, Chennai in Criminal M.P.No. 3569/2004, was dismissed on 13-12-2004. The detaining authority was also in possession of the other materials, namely, the petitioner's associates, namely, Hari Shankar and Mohammed Siddique were released on bail. He also possessed the knowledge of filing another application by the petitioner before the same Court in Criminal M.P.No. 3697/2004 and the same was pending. In such a circumstance, the detaining authority has arrived at a conclusion that there is imminent possibility of his coming out on bail in the said application, since in similar cases bails were granted by the same Court and also of the firm view that if he comes out on bail, he will indulge in further activities, which will prejudice in maintenance of public order. Inasmuch as the detaining authority had taken note of all the relevant materials, we are satisfied that his awareness regarding imminent possibility of coming out on bail cannot be under-estimated. There is no substance in the said argument.
14. Coming to the last contention, namely, there is no public order, in this regard, it is relevant to note that when the validity of the Amending Act 14/1982 wherein the provisions relating to preventive detention in respect of video pirate have been incorporated, a Division Bench of this Court (Madurai Bench) in J. AMEERGANI Vs. STATE OF TAMIL NADU, reported in 2005 (2) CTC 790, after going into the object of the amendment and the relevant provisions, upheld the same. On going through the amendment and the explanation offered as well as other materials, we are in respectful agreement with the said decision and hold that the Commissioner of Police, Greater Chennai is well within his power in clamping the petitioner as a video pirate under Act 14 of 1982. It is further seen that the petitioner had two adverse cases to his credit namely for violation of Copy Right Act as well as Indian Penal Code and in respect of ground case, namely, 30-11-2004 when his place of business was searched, the police officer found the petitioner and 2 others were keeping a CPU with 1+7 writer, 60 discs of Tamil films l;uPk;!;. bew";r kdR about 32 discs, kd;kjd; about 36 discs, Tamil film MP3 audio Cds about 240 and Tamil film songs VCDs about 180 and blank Cds about 100 were recovered. The grounds of detention also show that it is the grievance of film producers, film distributors, theatre owners as well as public that film industry is facing a severe crisis because of the prevalence of video piracy which results in audience staying away from the theatres and loss of revenue to Government, producers, distributors and theatre owners. The detaining authority has also satisfied that if those films are copied in C.Ds., and sold in the open market to the public, it will certainly encourage the audience staying away from the theatres and loss of revenue to Government and others especially to the film producers, distributors and theatre owners. We are satisfied that by such activities, they caused loss to the film producers, film distributors, theatre owners as well as loss of revenue to the Government and also result in confrontation between the various sections of public and the film producers, distributors etc., The action of the petitioner is prejudicial to the maintenance of public order. We are satisfied that the order of the detaining authority is in terms of Section 2 (a) (vi), Explanation and sub-section (j) of the Act. We are also satisfied that the detaining authority, after considering all the relevant materials, rightly passed the impugned order of detention and the same was approved by the Government. We reject all the contentions raised by the learned counsel for the petitioner.
15. The Video Piracy is a spiralling dragon threatening the Cine Field of this Century. Advancement in technology by recording Cine films in C.Ds., Video Piracy has started very rapidly spreading its claws affecting the Society at large. With much lesser cost, if people are let scot free to produce pirated Videos of films etc., and general public are allowed to witness pirated films freely, then the film industry namely film producers, film distributors which invest hundreds of lakhs of rupees in films may got ruined because of their inability to collect what they have spent, if not profits. Such action also curtails the revenue of the Government. Further, the censored portions of obscene shots and obscene songs, words and vulgarity in films may go unchecked to the public, and this too has to be curbed effectively. In this view, the piracy of cine films, songs, etc., has to be eradicated with iron hand by law making authorities and brought the culprits to book.
16. In the light of what is stated above, we do not find any merit in the Habeas Corpus Petition; accordingly the same is dismissed. No costs.
R.B. Index:- Yes.
Internet:- Yes.
To:-
1. The Commissioner of Police, Greater Chennai, Chennai.
2. The Secretary to Government, Prohibition and Excise Department, Fort St. George, Chennai-9.
3. The Superintendent, Central Prison,Chennai-3 (in duplicate for communication to detenu).
4. The Joint Secretary to Government, Public (Law and Order), Fort St. George, Chennai-9.
5. The Public Prosecutor, High Court, Madras.