Kerala High Court
Navas vs State Of Kerala on 30 July, 2020
Author: M.R.Anitha
Bench: M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
THURSDAY, THE 30TH DAY OF JULY 2020 / 8TH SRAVANA, 1942
Crl.Rev.Pet.No.986 OF 2008
AGAINST THE ORDER/JUDGMENT IN CRA 229/2005 DATED 31-01-2008 OF
ADDITIONAL SESSIONS COURT (ADHOC)-II, KALPETTA
AGAINST THE ORDER/JUDGMENT IN CC 457/2003 DATED 31-10-2005 OF
JUDICIAL MAGISTRATE OF FIRST CLASS - I,SULTHANBATHERY
REVISION PETITIONER/APPELLANT/ACCUSED:
NAVAS
S/O. KOYAKUTTY, AGED 24/2005, THONDANMALA HOUSE,
DHOTTAPPANKULAM, SULTHANBATHERY, WAYANAD.
BY ADVS.
SRI.M.T.BALAN
SMT.B.VIJUBALA
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE SUB INSPECTOR OF POLICE THROUGH THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R1 BY PUBLIC PROSECUTOR
OTHER PRESENT:
SR PP SRI M.S.BREEZ
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
28-07-2020, THE COURT ON 30-07-2020 PASSED THE FOLLOWING:
Crl.R.P.986/2008
2
ORDER
Dated : 30th July, 2020
1. This Crl.Revision Petition has been filed against the conviction and sentence passed by the Additional Sessions Court (Ad hoc)-II Kalpetta in Crl.Appeal 229 of 2004 dated 31.1.2008.
2. Revision petitioner was the accused in C.C.457/2003 on the file of the Judicial Magistrate of First Class-I, Sulthan Bathery. The prosecution case is that on 20.10.2003 at about 16.30 hours the accused was found to be keeping pirated VCDs of 17 Malayalam films, 10 Tamil films and 8 English films, at the video shop by name "Gottago DVDs and VCDs " functioning in building NO.VI/1163 situated on the side of Pulpally-Bathery public road and thereby committed the offence punishable under Secs 7(a) of the Cinematographic Rule II (amendment), 1995, Sec.52A r/w 68A of the Copyright Act, 1957 and Sec.6 r/w 4 of IRWP Act and Sec.292(a) IPC.
3. On the side of the prosecution PW1 to 12 were examined and Exts.P1 to P9 were marked. MO1 and 2 were also identified and marked. There was no defence evidence. The trial court found him guilty under Sec.52(A) r/w 68(A) of Copyright Act 1957 and acquitted of charges under Sec.7(a) of the Cinematographic Act and under Sec.292(a) IPC and Sec.6 r/w 4 of Indecent Representation of Crl.R.P.986/2008 3 Woman (Prohibition) Act, 1986 under Section 248(1) Cr.P.C. Against which the Crl.Appeal was filed before the Sessions Court, Wayanad which was made over to Additional Sessions Judge Adhoc-II, Kalpetta. By the impugned judgment the learned sessions judge dismissed the appeal and confirmed the conviction and sentence. Aggrieved by the same the revision petitioner came up in revision before this court.
4. Notice was issued to the respondent and the respondent appeared through the learned public prosecutor, Sri.M.S.Breez. Lower Court records were called for and perused and both sides were heard.
5. Prosecution examined PW1 the ASI, Sulthan Bathery who detected the crime through whom search list Ext.P2 and MO1 series the VCDs were marked. Exts.P1 is the search memorandum sent to court. Ext.P3 FIR was registered by him. PW2 to 4 are the independent witnesses cited and all of them turned hostile. PW5 is the witness in Exbt P4 mahazar. PW6 is the secretary of panchayat who issued ownership certificate pertaining to the shop which is marked as Ext.P5. PW7 is the constable who accompanied PW1 in the search and seizure. PW9 is the original tenant of the building who took the building on lease from PW8 the owner of the building. As per Ext.P6 he let out the portion of the room to the accused for conducting the Crl.R.P.986/2008 4 video shop. PW10 is the producer of the one of the film. He deposed that he used to give permission to release the CD only after 1 ½ years of release of the film and he has not given the right to release the CD of the film produced by him. PW11 subsequently entered in to agreement with PW10 to release the CD of his film and copy of the agreement after comparing with the original is marked as Ext.P7. Subsequently he transferred that right to another concern, that agreement is marked Ext.P8. He also speaks that only after one and half years of release of movie the right to release the CD would be given and hence only on 5.1.2005 onwards right to take CD would come into force and any CD come before that would be fake CDs and he also identified MO2 as the original VCD of the movie produced by PW10. PW12 is the Sub Inspector who conducted the investigation, and filed the charge sheet against the accused.
6. The learned counsel for the revision petitioner mainly assailed the conviction and sentence on the ground of violation of Sec.64 of the Copyright Act, 1957 (hereinafter referred to as 'the Act') since the seizure of the pirated copies have been effected by PW1 who is not an authorized officer being an Assistant sub inspector of police. He would also challenge the search and seizure effected by PW1 .
7. The learned public prosecutor on the other hand would contend that Crl.R.P.986/2008 5 the conviction of the accused is under Sec.52A r/w 68A of the Copyright Act, 1957 and the bar under Sec.64 would apply only with respect to offences coming under Sec.63 of the Act. In other words, according to the learned public prosecutor, since the conviction and sentence passed against the revision petitioner is under Sec.52A r/w 68A, the bar under Sec.64 would not apply.
8. To buttress his argument, the learned counsel for the revision petitioner would take my attention to unreported decision in Shanavas v. State of Kerala (Crl.M.C.6158/2019 dated 17.12.2019) wherein while dealing with Sec.51, 52A, 63 and 68 of the Act in a matter of quashing the proceedings in C.C.No.631/2016 on the file of Addl. Chief Judicial Magistrate Court, Thiruvananthapuram, this court quashed the proceedings under Sec.482 Cr.P.C. The prosecution allegation in that case was that a civil police officer who was on intelligence collection duty seized a compact disk (CD) from the shop of the accused, which happened to be a pirated one and consequent to that he submitted a report before the Sub Inspector of Police, Poonthura for further action and the crime was registered against the petitioner. In that context it was held that Sec.64 of the Act specifically insist that a police officer not below the rank of Sub Inspector alone can conduct a seizure in respect of the Crl.R.P.986/2008 6 infringement of copyright of any work and hence it was held that the act of Civil Police Officer acting under the provisions of the Act is illegal and cannot be sustained in law and accordingly the entire proceedings initiated against the accused in that case was quashed and he was discharged.
9. The learned counsel also took my attention to Roy V. State of Kerala (2001 KHC 53) wherein while dealing with Sec.42(1), 42(2) of Narcotic Drugs and Psychotropic Substances Act, 1985, it has been held that unauthorised officer conducting search and seizure cannot form basis for proceeding in respect of offences under Chapter 4 and it vitiates the trial.
10. Before discussing the impact of the decisions cited above, it would be necessary to enter into a finding as to whether the bar under Sec.64 is applicable in the present case since the conviction and sentence is under Sec.52A r/w 68A and not under Sec.63.
11.The argument of the learned public prosecutor is to the effect that the punishment provided under Sec.63 is imprisonment for a term which shall not be less than six months and which may extend to three years and fine which shall not be less than Rs.50,000/- but which may extend to 2,00,000/- subject to the proviso. Whereas as per Sec.68A punishment provided is imprisonment which may extend to three Crl.R.P.986/2008 7 years and fine and there is no minimum prescribed either with respect to the substantive sentence or fine.
12. To make the matters more clear it would be necessary to have a look at Sec.63 of the Act which reads as follows :
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, [except 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.
Explanation - Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section.
13. So on going through the above it would be clear that the section would be attracted with respect to any person who infringes or abets Crl.R.P.986/2008 8 the infringement of the copyright in a work or any other right conferred by this Act except the right conferred by Sec.53A. It is to be noted in this context that Chapter XI of the Act deals with Infringement Of Copyright and Sec.51 provides when a copyright is infringed and Sec.52 provides the acts not amounting to infringement of copyright and Sec.52A provides the particulars to be included in sound recording and video films. It is relevant in this context to quote Sec.52A which reads as follows :
Particulars to be included in sound recording and video films - (1) No person shall publish a sound recording in respect of any work unless the following particulars are displayed on the sound recording and on any container thereof, namely -
(a) the name and address of the person who has made the sound recording
(b) the name and address of the owner of the copyright in such work and
(c) the year of its first publication. (2) No person shall publish a video film in respect of any work unless the following particulars are displayed in the video film, when exhibited and on the video cassette or other container thereof namely -
(a) if such work is cinematography film required to be certified for exhibition under the provisions of the Cinematographic act, 1952 (37 of 1952) a copy of the certificate granted by the Board of Film Certification under section 5A of that Act in respect of such work;Crl.R.P.986/2008 9
(b) the name and address of the person who has made the video film and a declaration by him that he obtained the necessary licence or consent from the owner of the copyright in such work of making such video film and
(c) the name and address of the owner for the copyright in such work.
It is unnecessary for the prosecution to track on and trace out the owner of the copyright to come and adduce evidence of infringement of copyright. The absence thereof does not constitute lack of essential element of infringement of copyright.
14. Section 2, sub-clause (m) is also relevant to be extracted and it reads as follows :
2.(m) "infringing copy" means,-
(i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematographic film;
(ii) in relation to a cinematographic film, a copy of the film made on any medium by any means;
(iii) in relation to a sound recording, any other recording embodying the same sound recording, made by any means;
(iv) in relation to a programme or performance in which such a broadcast reproduction right or a performer's right subsists under the provisions of this Act, the sound recording or a cinematographic film of such programme or performance, if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act.Crl.R.P.986/2008 10
15. So with respect to a Cinematographic films, a copy of film made on any media by any means will be an infringed copy and sub-section (2) clause (b) of Sec.52A also provides that the name and address of the person who has made the video film and a declaration by him that he obtained the necessary licence or consent from the owner of the copyright in such work of making such video film and the name and address of the owner of the copyright in such work are particulars to be included in the video films.
16. So the violation of Sec.52A of the Act would also come within the purview of sub-section (b) of Section 63 which states about the infringement of any other right conferred by this Act and the only exception is the right conferred by Sec.53A of the Act.
17. The learned Public Prosecutor was emphasizing that as per Section 68A a separate punishment has been provided for the contravention of Section 52A i.e imprisonment which may extend to three years and fine and there is no minimum substantive term and fine as has been prescribed under Section 63 is provided in 52A. But that does not mean that detection of a crime coming under Section 52A will not come within the purview of Sec.64 though a lesser punishment has been provided under Sec 68A. That may be because of the fact that the offence under S.52A is of lesser degree. So for detection of a Crl.R.P.986/2008 11 crime under Section 52A of the Act coming under Chapter X1 of the Infringement of copyright also, the mandate provided under Section 64 of the Act has to be observed. For convenience, Section 64 of the Act is extracted as follows:
64. Power of police to seize infringing copies.-(1) Any police officer, not below the rank of a sub-inspector, may, if he is satisfied that an officer under section 63 in respect of the infringement of copyright in any work has been, is being, or is likely to be, committed, seize without warrant, all copies of the work, and all plates used for the purpose of making infringing copies of the work, wherever found, and all copies and plates so seized shall, as soon as practicable, be produced before a Magistrate.
(2) Any person having an interest in any copies of a work or plates seized under sub-section (1) may, within fifteen days of such seizure, make an application to the magistrate for such copies or plates being restored to him and the Magistrate, after hearing the applicant and the complainant and making such further inquiry as may be necessary, shall make such order on the application as he may deem it.
18. So nobody will have a doubt on going through the above provision that statute empowers an officer not below the rank of Sub Inspector to seize the copies of the work and all the plates used for the purpose of making the infringed copies of the work. So, here, the question is whether the Assistant Sub Inspector of Police who has detected the crime and seized MO1 series is empowered to seize the infringed cinematographic film copies. The learned Public Prosecutor argued that if it is an Additional Sub Inspector of Police it is as Crl.R.P.986/2008 12 good as Sub Inspector and is in the same cadre. The learned sessions judge in the judgment referred PW1 as the Additional Sub Inspector. The counsel for the revision petitioner emphasis that the officer who detected the crime i.e PW1 was the Assistant Sub Inspector during the relevant time. He would also in this context took my attention to evidence of PW1 wherein during cross examination he categorically admitted that he is an officer below the Sub Inspector and a specific question was also put to the effect that ASI has no right to seize the cassettes with copy right violation. He refuted the same and explained that he was the Station House Officer at the time of seizure.
19. To ascertain the above aspect, it would be relevant to look at Ext.P3 FIR registered by PW1. In that it has been specifically stated by him that in the absence of Sub Inspector who is on court evidence duty and Addl. S.I. on medical leave, he is registering the crime under Section 7 (a) of Cinematography Rules II Amendment 1995, 52(A) r/w. 68(A) of Copyright Act, 1957, Sec. 6 r/w. 4 of IRWP Act and Section 292(a) of IPC. So it is clear from the FIR also that the Sub Inspector and Additional Sub Inspector were not available and in their absence in the capacity of SHO, ASI has conducted the Crl.R.P.986/2008 13 search and seizure. So there is no room for any doubt to endorse the contention of the learned counsel for the revision petitioner that PW1 was only an Assistant Sub Inspector of Police at the time of detection of the crime. So question is whether the bar under Section 64 would apply and it would vitiate the seizure of MO1 series made by PW1 and consequently the entire proceedings against the accused would be vitiated.
20. As quoted earlier, the learned counsel for the revision petitioner took my attention to the decision in Crl.M.C. 6158/2019 dated 17.12.2019 wherein this Court has held that the seizure of compact disc (C.D.) from the shop of the accused in that case on the ground that it is pirated one and consequent filing of a report before the Sub Inspector of Police and further action and registration of the crime against the accused is illegal since Section 64 of the Copyright Act, 1957 insist that a police officer not below the rank of Sub Inspector alone can conduct a seizure in respect of the infringement of the copyright of any work.
21. The learned counsel also took my attention to Roy's case cited supra wherein while dealing with the Section 42(1) Crl.R.P.986/2008 14 and 42(2) of NDPS Act, 1985, it has been held that unauthorised officer conducting search and seizure cannot form basis for proceeding in respect of offences under Chapter 4 and it vitiates the trial.
22. When a statute prescribes a particular mandate for conducting seizure by designating the officers with their rank, it is a safeguard made by the law making authority for protection of the accused so as to avoid illegal search and seizure at the instance of officers of lower rank. So the seizure of MO1(series) by an Assistant Sub Inspector of Police who is lower in rank to the Sub Inspector violates, Section 64 of the Copyright Act since the seizure has been effected not by the empowered officer and it would in turn vitiate the entire trial.
23. Though the learned counsel also contended about the failure of the prosecution to prove the search since both the independent witnesses cited in Expt.P2 search list turned hostile and stated that they have signed the mahazar at the police station etc, all those factors does not arise for consideration since the seizure of MO1 (series) has already been found as illegal since PW1 the detecting officer was not an empowered officer as provided under the Act. So the Crl.R.P.986/2008 15 conviction and sentence passed by the courts below is illegal and improper and hence is not sustainable in law and is liable to be set aside.
24. In the result, criminal revision petition allowed and conviction and sentence passed against the revision petitioner is hereby set aside. Bail bond executed by him stands cancelled and the revision petitioner is set at liberty.
Sd/-
M.R.ANITHA JUDGE Mrcs/Shg