Delhi District Court
State vs Sukhvinder Singh on 30 September, 2024
IN THE COURT OF SHRI ANUJ KUMAR SINGH
ADDITIONAL CHIEF JUDICIAL MAGISTRATE-02
CENTRAL DISTRICT AT TIS HAZARI COURTS, DELHI
CNR No.DLCT02-001052-2009
FIR No. 268/2008
PS: Kashmere Gate
State Vs. Sukhvinder Singh
U/s: 63 Copyright Act, 1957
JUDGMENT
(a) CIS No. 301915/2016
(b) Date of offence 16.09.2008
(c) Complainant Shri Ram Niwas
(d) Accused Sukhvinder Singh S/o Sardar Ajit
Singh, R/o H. No. 403, Kohat
Enclave, Pitampura, Delhi.
(e) Offence 63 CR Act
(f) Plea of accused Pleaded Not guilty
(g) Final Order Convicted
(h) Date of Institution 22.12.2009
(I) Date when judgment 31.08.2024
was reserved
(j) Date of judgment 30.09.2024
1. Vide this judgment, this Court shall dispose of the present case u/s 63 CR Act.
2. The case of the prosecution is that on 16.09.2008 at about 04:45 PM at shop no. 16/A, Shell Chimax Enterprises (P) Ltd. Gupta Motor Market, Chabi Ganj, Kashmere Gate, Delhi within jurisdiction of PS Kashmere Gate (wrongly mentioned as "PS FIR No.268/2008 PS : Kashmere Gate State Vs Sukhvinder Singh Page No. 1 of 22 Kotwali"), the accused was found in possession of duplicate/spurious boxes (Dibbey) of Servo Lubricative Oil as detailed in the Seizure Memo Mark A for the purpose of selling the same and thus infringed copyright of the complainant company, M/s Indian Oil Corporations Ltd and thus accused was tried for offence punishable u/s 63 Copyright Act.
3. After investigation, charge sheet was filed against the accused in the Court. Copy of chargesheet and other scrutable documents were supplied to accused persons in compliance of Section 207 Cr.PC. Thereafter charge under Section 63 Copyright Act was framed against accused vide order dated 12.07.2010 to which he pleaded not guilty and claimed trial.
4. Vide order dated 29.03.2022, in compliance of the provisions of Section 294 Cr.P.C., the accused was called upon to admit/deny FIR No. 268/2008 dated 16.09.2008 PS Kashmere Gate as Ex. A-1 and Order of the Court of Ms. Savitri, the Ld. MM dated 21.10.2008 as Ex. A2, which accused admitted without its contents. In view of the admission made, the evidence of Reader to the then ld. MM, Ms. Savitri and duty officer was dispensed with.
5. In order to prove the charge against the accused, the prosecution examined nine witnesses.
6. PW-1/HC Naimpal Singh deposed that on 30.01.2009, on the instruction of the IO, he obtained the exhibits of the case FIR No.268/2008 PS : Kashmere Gate State Vs Sukhvinder Singh Page No. 2 of 22 from the maalkhana of PS: Kashmere Gate vide RC No. 8/21/9 and the same was deposited to FSL, Rohini alongwith forwarding letter. The receipt was handed over to SI Rajiv Kumar. So long the case property remained in his possession, it was not tempered with.
7. PW-2/Sh. Pankaj Kumar deposed that he is working as Deputy General Manger (Law), Indian Oil Corporation Ltd., HO, Bandra East, Mumbai and he had been authorized by the company vide power of attorney dated 12.06.2007 as true and lawful attorney of the company. He had been further authorized vide clause 20 of the document to further sub delegate the power to any other person to lodge the complaint on behalf of the company and in pursuance of the said power, he had authorized M/s EIPR Ltd having their office at Bombay to investigate or lodge the prosecution on behalf of Indian Oil Corporation in the area of Delhi and Haryana to detect and investigate the spurious good imitating the product of the company on 06.02.2008. He further deposed that he had brought the original power of attorney dated 12.06.2007 and photocopy of the same was already on record and same is Ex.PW2/A (OSR) which bears the signature of Shri G.C. Dagar Director Marketing. PW2 further deposed that the attested photocopy of the power of attorney executed in favour of M/s EIPR is also on record which is Ex. PW2/B (colly) bearing his signatures at point A. The original power of attorney was in the possession of attorney holder and he can not produce the original of the same. He had also brought the certified copies of the Resolution passed in his favour by the FIR No.268/2008 PS : Kashmere Gate State Vs Sukhvinder Singh Page No. 3 of 22 company and same is Ex.PW2/C. The photocopy of the minutes held on 28.05.2007 is also on record which is Ex. PW2/D.
8. PW-3/Sh. Raju Ranganathan, Company Secretary, Indian Oil Corporation deposed that on 28.05.2007, a resolution with respect to approval of General Power of Attorney in favour of Pankaj Kumar, the then Chief Law Manager was passed by the Board of Directors. The Minutes of meeting were approved in his presence and the copy of the same is already on record which is already Ex.PW2/D. He has brought the original minutes book in the Court and the Ex.PW2/D is true and correct copy of resolution as per record. The copy of general power of attorney in favour of Pankaj Kumar is also on record which is already Ex. PW2/A. During his cross-examination, PW3 deposed that he has brought the original minutes book of resolution before the Court. The matter had been taken up vide board meeting no. 528 and on that day, apart from him, 12 directors were present. He further deposed that there is no need for the signatures of the Directors in the minutes of the resolution. He voluntarily stated that signatures of the Chairman is there. PW3 denied the suggestions that as per the company law it is mandatory for all the directors to sign the resolution or that at the time of passing resolution no directors were present and as such does not bear their signatures. He further denied the suggestion that resolution was passed by him at his own or that there was no sanctity of the resolution on behalf of the directors.
FIR No.268/2008 PS : Kashmere Gate State Vs Sukhvinder Singh Page No. 4 of 22
9. PW-4/Complainant Sh. Ram Niwas deposed that he was working as investigating officer in M/s. EIPR India Ltd. which has been authorized by M/s Indian Oil Corporation Ltd. to conduct survey/investigate and to initiate legal action against all such violation of the company intellectual property right. Further, he had been authorized by M/s EIPR to do all the above said act. On 19.06.2008, he had given a complaint to DCP regarding infringement of copyright of M/s Indian Oil Corporation Ltd which is Ex.PW4/A bearing his signatures at point A. The photocopy of authorization certificate issued by EIPR is marked PX bearing his signatures at point A. Photocopy of one certificate issued by EIPR regarding his employment was marked PX1. PW4 further deposed that he does not remember the exact date however, it was the month of September 2008, he alongwith the police officials of DIU North District went to round about Mori Gate, Delhi, where they met with Inspector Ashok Khera and was included in the raiding party. Thereafter, they reached at Panja Sharif Market, Near Mori Gate in between 04:00-05:00 PM. He does not remember the exact shop number of the accused, however the accused who is present in the Court who revealed his name as Sukhvinder was found present in the shop. At his instance, 7 cartoons of counterfeit/spurious/infringed of mobil- oil/engine oil of Indian Oil Corporation were recovered. Each cartoon was containing 20 bottle of 1 litre each. One bottle was taken out from each cartoon and remaining were kept in the same cartoon and thereafter, all the property was taken into possession vide seizure memo Ex. PW4/B bearing his signatures at point A. He had also given the original samples of the Indian Oil FIR No.268/2008 PS : Kashmere Gate State Vs Sukhvinder Singh Page No. 5 of 22 Corporation to the IO. The seizure memo is Ex. PW4/C bearing his signatures at point A. FIR was registered and accused was arrested vide arrest memo Ex. PW4/D bearing his signatures at point A. Perusal of the record shows that vide order dated 21.08.2019, complainant PW4 Ram Niwas was dropped from the list of the prosecution witnesses as repeatedly this witness remained unserved and prosecution had already availed numerous opportunities to examine this witness.
10. PW-5/Sh. Suhail Malik, Examiner of Trademark deposed that he has brought the summoned record i.e. certified copy of Trademark application no. 277644 of Indian Oil Corporation with its Trademark Servo. The copy of said application is already on record which is Ex.PW5/A (OSR) and the certified copy of documents i.e. registered application alongwith relevant documents also taken on record which are Ex. PW5/B (colly). He has also brought the summoned record i.e. certified copy of Trademark application no. 850507 of Indian Oil Corporation with its Trademark Servo. The certified copy of the said application is Ex.PW5/C (OSR).
During his cross-examination, PW5 deposed that he has been authorized by authorization letter and copy of it was taken on record and same is Ex. PW5/D. He has been provided by the copy of Ex. PW5/B and Ex. PW5/C from his office. It is correct that he does not have the personal knowledge about the present case.
FIR No.268/2008 PS : Kashmere Gate State Vs Sukhvinder Singh Page No. 6 of 22
11. PW-6/SI Satish (Retd) deposed that on 16.09.2008, he was posted as Head Constable at PS DIU North Distt. Delhi. On that day, he alongwith SI Rajeev, Ct. Hemant and complainant Ram Niwas left from the office of DIU and reached at round about Mori Gate, Kashmere Gate where Inspector Ashok joined them. IO requested public persons to join the investigation but none agreed. Thereafter, at about 04:45pm, at the instance of complainant, the raiding team went to Gupta Motor Market at Shop No. 16A, Shell Climax Enterprises where accused Sukhvir Singh met them. From the said shop, at the identification of complainant, 7 carton of Servo Super Lubricating Oil were recovered out of which 6 boxes were packed and one was open. All the boxes were bearing the sticker of Servo. They were declared as spurious articles/duplicate products by the complainant Ram Niwas. Thereafter, the said products were seized vide memo already Ex.PW4/B bearing his signature at point B. They were sealed with the seal of 'RK' and seal after use was handed over to him. IO prepared one rukka and handed over the same to Ct. Hemant for registration of FIR. After registration of FIR, accused was arrested vide memo already Ex. PW4/D bearing his signature at point B. Personal search of accused was conducted and personal search memo of accused is Ex.PW6/A bearing his signature at point A. Disclosure statement of accused is Ex.PW6/B bearing his signature at point A. The site plan was prepared which is Ex.PW6/C bearing his signature at point A. The original sample provided by complainant of the Servo Super Oil was seized vide memo already Ex. PW4/C bearing his signature at point A. Witness correctly identified the accused FIR No.268/2008 PS : Kashmere Gate State Vs Sukhvinder Singh Page No. 7 of 22 present in the Court. He can identify the case property, if shown to him.
MHC (M) produced one white plastic katta sealed with the seal of CP Singh, FSL Delhi. With the permission of the Court said seal was broken and one plastic bottle of gray colour bearing the Yellow Colour Sticker of Servo was taken out and shown to the witness who correctly identified the said bottle was one of the several bottles that were found in the cartons recovered from the shop of accused. The case property was Ex. P1 (colly).
During his cross-examination, PW6 deposed that it is correct that the said bottle of the case property is sealed with the sticker. The distance between his office and the shop is about 2 kms. No notice was served upon public persons due to paucity of time. No one disclosed their names and addresses. As stated by accused, the said shop was a rented premises. They came by their own vehicles to the spot. He alongwith IO took the case property to malkhana of PS. He does not remember the registration number of personal car of IO in which he came alongwith IO. He denied the suggestion that during the raid all the original articles were seized or that accused was not owner of said shop. At that time, accused was alone at the shop. He does not know whether the accused got married on 13.09.2008 or not. He denied the suggestion that accused was called at the PS and his signature was taken at PS. He does not remember the total number of documents due to lapse of time of 15 years. Accused was arrested at the spot. Complainant Ram Niwas checked the bottle by his hand and eyes and gave the opinion that the said products were FIR No.268/2008 PS : Kashmere Gate State Vs Sukhvinder Singh Page No. 8 of 22 duplicate and copy of the original. None of the bottles were opened for checking in his presence. He does not know whether any document were given by complainant to IO in his presence or not. He denied the suggestion that accused is falsely implicated in the present case.
12. PW-7/ASI Hemant deposed that on 16.09.2008, he was posted as Constable at PS DIU North Distt. Delhi. On that day, he alongwith SI Rajeev, HC Satish and complainant Ram Niwas left from the office of DIU and reached at round about Mori Gate, Kashmere Gate where Inspector Ashok also joined them. IO requested public persons to join the investigation but none agreed. Thereafter, at about 04:45pm, at the instance of complainant, the raiding team went to Gupta Motor Market at Shop No. 16A, Shell Climax Enterprises where accused Sukhvir Singh met them. From the said shop, at the identification of complainant, 7 carton of Servo Super Lubricating Oil were recovered out of which 6 boxes were packed and one was open. All the boxes were bearing the sticker of Servo. They were declared as spurious articles/duplicate products by the complainant Ram Niwas. Thereafter, the said products were seized vide memo already Ex. PW4/B bearing his signature at point C. They were sealed with the seal of 'RK' and seal after use was handed over to HC Satish. IO prepared one rukka and handed over the same to him for registration of FIR. He left the spot and went to PS and got the present FIR registered. After registration of FIR, he came back to the spot with original tehrir and copy of FIR and handed over the same to IO. Disclosure FIR No.268/2008 PS : Kashmere Gate State Vs Sukhvinder Singh Page No. 9 of 22 statement of accused is Ex. PW6/B bearing his signatures at point B. On 17.09.2008, the rent receipt of shop of accused was seized vide memo Ex.PW7/A bearing his signatures at point A. The said rent receipt is on record and the same is Ex.PW7/B. The original sample provided by complainant of the Servo Super Oil was seized vide memo already Ex. PW4/C bearing his signatures at point C. Witness correctly identified the accused present in the Court as well as the case property already Ex. P1 (colly) in the testimony of PW-6.
During his cross-examination, PW7 deposed that the distance between his office and the shop is about 2kms. No notice was served upon public persons due to paucity of time. No one disclosed their names and addresses. As stated by accused, the said shop was a rented premises. They came by their own vehicles to the spot. HC Satish alongwith IO took the case property to malkhana of PS. He does not remember the registration number of personal car of IO in which IO came to the spot. He denied the suggestions that during the raid all the original articles were seized from the shop of accused or that accused was not owner of said shop. At that time, accused was alone at the shop. He does not know whether the accused got married on 13.09.2008 or not. He denied the suggestion that accused was called at the PS and his signature were taken at PS. He does not remember the total number of documents due to lapse of time of 15 years. Complainant Ram Niwas checked the bottle by his hand and eyes and gave the opinion that the said products were duplicate and copy of the original. None of the bottles were opened for checking in his presence. He does not FIR No.268/2008 PS : Kashmere Gate State Vs Sukhvinder Singh Page No. 10 of 22 know whether any document was given by complainant to IO in his presence or not. He denied the suggestion that accused is falsely implicated in the present case.
13. PW-8/Dr. C.P. Singh, Assistant Director, Physics, FSL, Rohini, Delhi deposed that on 30.01.2009, two sealed plastic sacks were received in FSL, Rohini. The same were opened and examined in the laboratory and the same were compared with the samples. After comparing, it was found that Ex. OS1 and Ex. S1 to S7 were different in respect of colour, font of printing, sealing pattern and embossed printing under the bottom. He submitted his report dated 21.05.2009 to the IO and the same is Ex.PW8/A bearing his signature at point A. During his cross-examination, PW8 deposed that the difference were mentioned in the report Ex. PW8/A on the basis of physical examination i.e. by comparing and testing with the help of lens/microscope etc. He denied the suggestion that his report Ex. PW8/A is not based upon scientific principles or that the same is forged and fabricated.
14. PW-9/Inspector Rajeev Kumar deposed that he received a complaint through the office of DCP, North Distt. for registration of the present case. Accordingly, on 16.09.2008, he prepared rukka which is Ex.PW9/A bearing his signature at point A and got FIR registered. On 16.09.2008, complainant Ram Niwas came to office of DIU, Central and gave specific complaint that some persons are selling duplicate/fake articles of complainant company in the area of Kashmere Gate Market. Accordingly, he FIR No.268/2008 PS : Kashmere Gate State Vs Sukhvinder Singh Page No. 11 of 22 constituted a raiding team consisting of himself, complainant, HC Satish, Ct. Hemant and Insp. Ashok. They left for the Kashmere Gate Market and after reaching Chabiganj Market, he requested 4-5 public persons to join the investigation and recovery proceedings but none agreed and left the spot without disclosing their names and addresses. Due to paucity of time, no notice could be served upon those public persons. Thereafter, they went to shop No. 16A, in the name and style of Shell Climax Enterprises Pvt. Ltd., Gupta Motor Market, Chabiganj, Kashmere Gate where they met with one person whose name was revealed as Sukhvinder Singh. The purpose of visit was informed to accused and accordingly search was conducted during the search huge quantity of duplicate/fake products of complainant company i.e. IOC were recovered. The total boxes were 135 out of which he took out seven boxes as sample. The case property was kept in bag and sealed with the seal of 'RK'. He seized the case property vide seizure memo already Ex. PW4/B bearing his signature at point D. He also seized original samples from the complainant vide seizure memo already Ex. PW4/C bearing his signature at point D. Accused was arrested vide arrest memo Ex. PW4/D bearing his signature at point C. Personal search of accused was conducted vide search memo already Ex. PW6/A bearing his signature at point B. He recorded disclosure statement of accused which is already Ex. PW6/B bearing his signature at point C. Accused was released on bail. He prepared site plan which is already Ex. PW6/C bearing his signature at point B. Thereafter, they returned to office of DIU. He deposited the case property in the malkhana of PS Kashmere Gate. On FIR No.268/2008 PS : Kashmere Gate State Vs Sukhvinder Singh Page No. 12 of 22 17.09.2008, he seized the rent receipt of the said shop from accused vide seizure memo already Ex. PW7/A bearing his signature at point B. The said rent receipt is already Ex. PW7/B. During investigation, the case property was sent to FSL alongwith original samples for expert opinion. After collecting the report, he placed the same on record. He collected documents from complainant and placed the same on record. He recorded statement of witnesses. After completing the investigation, he filed the chargesheet before the Hon'ble Court. Witness correctly identified the accused present in the Court as well as the case property already Ex. P1 (colly).
During his cross-examination, PW9 deposed that he had made the departure entry which is already placed on record vide DD No. 23 dated 16.09.2008, DIU North which is Ex. PW9/DA. They reached the spot at about 04:45pm. They did offer their personal search to accused before conducting the raid at the shop. He denied the suggestion that they did not offer any personal search of police team to the accused before the raid. In the said shop, accused and his father were present. No other person or customer was present in the shop. He did not obtain signatures of father of accused on any document. He denied the suggestions that neither the accused nor his father was present at the shop at the time of raid or that accused was not tenant of the said shop or that rent receipt Ex. PW7/B is false and fabricated. He alongwith HC Satish reached the spot on his personal bike. The case property was sent to PS Kashmere Gate on Government Gypsy which he called later on. He does not remember the registration of said Government gypsy. He denied the suggestions that no FIR No.268/2008 PS : Kashmere Gate State Vs Sukhvinder Singh Page No. 13 of 22 case property was recovered from the shop of accused or that nothing incriminating was recovered from possession of accused or that accused has been falsely implicated in the present case or that the case property has been planted upon the accused.
15. The prosecution evidence was closed vide order dated 21.11.2023 and statement of accused persons was recorded vide order dated 27.02.2024 wherein accused pleaded innocence and opted not to lead defence evidence.
16. I have heard the arguments addressed by Sh. Vishal Gupta, Ld. APP for State and Sh. S.K. Bansal, Ld. Counsel for accused and carefully perused the documents on record.
17. It is submitted by ld. APP for State that prosecution has proved its case beyond all reasonable doubts and prosecution witnesses correctly identified accused persons and no material contradiction came out in their cross examination.
18. Ld. counsel for accused has argued that there are material contradiction in the testimony of prosecution witnesses and testimony of complainant Ram Niwas could not be read in the evidence as he was never cross examined by the accused. It is further submitted that accused has been falsely implicated by the police official and no independent person was made witness in the present case.
FIR No.268/2008 PS : Kashmere Gate State Vs Sukhvinder Singh Page No. 14 of 22
19. Settled proposition of criminal laws are:-
(1) Prosecution is required to prove its case on judicial file beyond all reasonable doubt by leading reliable, cogent and convincing evidence.
(2) Prosecution case needs to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused.
(3) Burden of proof of the version of the prosecution in a criminal trial through out the trial is on the prosecution and it never shifts to the accused.
(4) Accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
20. Law relating to the copyright are as follows:-
S.63 of The Copyright Act- 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, [expect the right conferred by section 53A] [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 [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.] S51 When Copyright infringed- Copyright in a work shall be deemed to be infringed-
(a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted of of any condition imposed by a competent authority under this Act-
(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or [(ii) permits for profit any place to be used for the communication of FIR No.268/2008 PS : Kashmere Gate State Vs Sukhvinder Singh Page No. 15 of 22 the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or]
(b) when any person -
(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or
(iii) by way of trade exhibits in public, or
(iv) imports 2[***] into India, any infringing copies of the work :
3 [provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work, for the private and domestic use of the importer.] Explanation- For the purpose of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an "infringing copy".
21. The position of the law in this regard has been well established in case titled as "Fateh Singh Mehta Vs. O.P Singhal, AIR 1990 Raj 8, wherein it has been held :-
"Copyright in a work is deemed to be infringed when any person, without a license granted by the owner of the copyright does anything, which is the exclusive right to do conferred by the Act upon the owner of the copyright. Where a person has copyright in a literary work, and any other person produces or reproduces the work or any substantial part thereof in any material form, he is committing an infringement of copyright".
22. It has been further held in R.G Anand V. Delux Films, AIR 1978 SC 1613 that :-
"It is not necessary that the alleged infringement should be an exact or verbatim copy of the original but its resemblances with the original in a large measure is sufficient to indicate that it is a copy."
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23. As far as the test to determine infringement of the Copyright is concerned, it has been held in case titled as R.G. Anand V. M/s. Delux Films, AIR 1978 SC 1613 that :-
"One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original."
24. I find no merit in the contention of the ld. Counsel for the accused that evidence of the complainant could not be read in evidence as Section 33 Indian Evidence Act states that evidence given by a witness is relevant in later stage of the judicial proceedings when his presence cannot be obtained by the prosecution. Perusal of record shows that witness was partly examined on 19.08.2015 and when despite opportunities, his presence could not be obtained by the prosecution, vide order dated 21.08.2019, ld. Predecessor dropped complainant PW4 Ram Niwas. So, testimony of the complainant Ram Niwas is relevant and admissible in the present case. Besides the testimony of Ram Niwas, there are other witnesses who support the case of prosecution.
25. Primary question to be determined is whether the case property was recovered from the possession of the accused person, namely, Sukhvinder Singh and whether recovered articles were duplicate/spurious articles. The case of the prosecution is that in pursuance of the complaint dated 19.06.2008 filed by the complainant, namely, PW4/Ram Niwas, Investigating Officer, FIR No.268/2008 PS : Kashmere Gate State Vs Sukhvinder Singh Page No. 17 of 22 M/s EIPR Ltd. (company authorized by Indian Oil Corporation vide Power of Attorney dated 06.02.2008 Ex.PW2/B to conduct surveys, investigate and to initiate legal action against all such violation of the Company's Intellectual Property Rights), a raid was conducted on 16.09.2008 at Shell Climax Enterprises, Shop No.16A, Gupta Motor Market, Chabiganj, Kashmere Gate, Delhi where huge quantity of duplicate/fake products of Indian Oil Corporation were recovered.
26. As regarding the submission of ld. Defence counsel for the accused that benefit of doubt be given to the accused as the recovery was not effected in the presence of any independent public person and is fatal to the case of prosecution as per Section 100, 104 and 165 Cr.PC.
27. Although, it is true that no public witness except complainant, PW4/Ram Niwas of the recovery was cited by the prosecution, however this solely cannot be a ground for unimpeached testimony of prosecution witness. It is true that the provision of Section 104 CrPC are directory in nature but failure to comply with the said provision is not invariably fatal to the case of of the prosecution as has been held by the Hon'ble Supreme Court in State of Punjab Vs. Balbir Singh AIR 1994 SCC 1872.
"7. At this juncture, we may also dispose of one of the contentions that failure to comply with the provisions of CrPC in respect of search and seizure even up to that stage would not vitiate the trial. This aspect has been considered in number of cases and it has been held that FIR No.268/2008 PS : Kashmere Gate State Vs Sukhvinder Singh Page No. 18 of 22 violation of the provision particularly that of Section 100, 102, 103 or 165 CrPC strictly per se does not vitiate the prosecution case. If there is such violation, what the Court have to see is whether any prejudice was caused to the accused and in appreciating the evidence and other relevant factors, the Courts should bear in mind that there was such a violation and from that point of view evaluate the evidence on record".
28. It is, therefore, safely can be said that non compliance of Section 100 and 165 would amount to an irregularity and the effect of the same on the case would depend on facts and circumstances of each case. In such a situation, Court has to consider whether any prejudice has been caused to the accused due to non compliance. It is a settled law that testimony of witness is not to be doubted or discarded merely on the ground that witness happens to be an official. But as a rule of caution and depending upon the circumstances of the case, the Court looks for independent corroboration.
29. In the present case, PW6/Retd. SI Satish, PW7/ASI Hemant and PW9/Inspector Rajeev Kumar have maintained that public persons were asked to join investigation and recovery proceedings, however no one agreed and they left the place without disclosing their names and addresses and due to paucity of time no notice could be served upon public persons. It is cannot be said that in the present case no efforts were made by the police officials to join public witnesses in the investigation. It has been held in Appa Bhai and Anr. Vs. State of Gujarat AIR 1988 SC 696 that prosecution case cannot be thrown out or FIR No.268/2008 PS : Kashmere Gate State Vs Sukhvinder Singh Page No. 19 of 22 doubted on the sole ground of non joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable. In para no.11 of the aforesaid judgment, it has been observed that:-
"it is no doubt true that prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There mus have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused".
30. It is trite law that there is no reason to doubt the testimony of prosecution witness merely on the ground that they are police personnel as has been held by the Hon'ble Supreme Court in Karamjit Singh Vs. State (Delhi Administration) AIR 2003 SC 1311. Para 8 of aforesaid judgment reads as under :
"8. 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 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 FIR No.268/2008 PS : Kashmere Gate State Vs Sukhvinder Singh Page No. 20 of 22 good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down."
31. Regarding contradiction with regard to non recalling of shop number of the accused and date of raid by the complainant PW4/Ram Niwas, same are trivial in nature. It is settled law that minor contradictions are bound to occur in the testimony of the witnesses as has been observed in the case of State of Uttar Pradesh Vs. Naresh and Ors. (2011) 4 SCC 324 where it was observed that:-
"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal error of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of witness and other witnesses also make material improvement while deposing in the Court, such evidence cannot be sat to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence".
32. The testimony of PW8/Dr. C.P. Singh is of utmost importance as well as crucial for deciding the present case who during his testimony before the Court deposed that original and recovered articles were different in colour, font of printing, sealing pattern and embossed printing under the bottom which FIR No.268/2008 PS : Kashmere Gate State Vs Sukhvinder Singh Page No. 21 of 22 clearly shows that recovered products were not original, hence were spurious/fake/duplicate.
During cross examination of the said witness of the prosecution, nothing substantial could be extracted by the accused which raises doubt or create suspicion in the minds of the Court.
33. In view of the above, in my humble opinion, this Court is of the view that the prosecution has successfully proved that accused was found in possession of spurious/fake/duplicate products of Indian Oil Corporation. Accordingly, accused Sukhvinder Singh is convicted for the offence u/s 63 Copyright Act 1957.
34. Be heard on the point of sentence.
Announced and Signed in the Open Court on 30.09.2024 ANUJ Digitally signed by ANUJ KUMAR SINGH KUMAR Date: 2024.10.18 SINGH 10:26:07 +0530 (ANUJ KUMAR SINGH) Additional Chief Judicial Magistrate-02
Central District, Tis Hazari Courts/Delhi (m) FIR No.268/2008 PS : Kashmere Gate State Vs Sukhvinder Singh Page No. 22 of 22