Delhi District Court
State vs : Shashi Kant on 23 December, 2014
IN THE COURT OF SH. SUDHANSHU KAUSHIK : ACMM-01 :
CENTRAL DISTRICT : TIS HAZARI COURTS : DELHI
State Vs : Shashi Kant
FIR No : 623/2004
U/s : 63/68A Copyright Act &
Section 292 IPC
PS : Karol Bagh
Unique Identification No. 02401R1291432005
Date of Institution: 21.12.2005
Date of Judgment reserved for: 16.12.2014
Date of Judgment: 23.12.2014
Brief Details of the Case
A. Sl.No. of the case 000201/CR
B. Offence complained of
or proved U/s 63/68A Copyright Act &
Section 292 IPC
C. Date of Offence 18.11.2004
D. Name of the complainant SI Sunil Kumar
PIS No.16960075, IPR Section,
EOW, Crime Branch, Delhi
E. Name of the accused Shashi Kant
S/o Sh. Baiz Nath
R/o House No.78, Gali No.15,
Brahmpuri, Delhi
F. Plea of the accused Pleaded not guilty
G. Final order Acquitted
H. Date of Order 23.12.2014
Judgment
On the accusation of knowingly infringing the copyright by selling
pirated DVDs/VCDs containing video films & MP3 songs and publishing the
FIR No.623/2004 State Vs Shashi Kant Page 1 of 13
sound recording and video films without following the conditions prescribed
under Section 52A of the Copyright Act 1957 (hereinafter referred to as ' the
Act' ), Shashi Kant (hereinafter referred to as ' accused' ) was sent to face trial
for committing offences punishable under Section 63 & 68A of the Act. It was
alleged that some of the DVDs/VCDs were containing pornographic video
films and accused also committed an offence punishable under Section 292
IPC.
Brief Facts as disclosed in the charge-sheet
2. The case of prosecution is that on 18.11.2004, on the basis of a secret information, raid was conducted at the shop bearing No. 152, Karol Bagh, Delhi by the police officials posted at Intellectual Property Rights (IPR) Section of Economic Offences Wing (EOW), Crime Branch, New Delhi including SI Sunil Jain (PW-6), HC Bachhu Singh (PW-7) and Ct. Madan Lal (PW-8). During raid, a public person Rajesh (PW-2) voluntarily joined the raiding party and 501 pirated DVDs, 2750 pirated VCDs, 141 pirated MP3s of various Hindi/English movies/songs and 48 pornographic DVDs/VCDs were recovered from the possession of accused. Recovered DVDs/VCDs/MP3s were kept in two gunny bags which were sealed with the seal of ' SKJ' and seal was handed over to Rajesh. The sealed bags were deposited at the malkhana and statements of witnesses were recorded. After registration of FIR, Insp. Akash Rawat (PW-9) arrived at the spot and carried out further investigation. On completion of investigation, charge-sheet was put to the court. Copies of the charge-sheet were supplied to the accused and charges under Section 63 & 68A FIR No.623/2004 State Vs Shashi Kant Page 2 of 13 of the Act and Section 292 IPC were framed against him to which he pleaded not guilty and claimed trial.
Witnesses examined
3. Nine prosecution witnesses were examined.
PW-1 ASI Rajender Singh (Duty Officer) mentioned about registration of FIR. The copy of FIR is Ex.PW-1/A. PW-2 Rajesh Kumar (Public Witness) mentioned that he voluntarily accompanied the raiding party to the shop of accused and gave detailed account of the recovery.
PW-3 Vibhash Kumar (Franchise of MTNL) produced the record of landline telephone connection number 25801156 installed at the shop of accused.
PW-4 Rajender Singh (Husband of the owner of shop) stated that his wife had rented out the shop to the accused.
PW-5 Ravinder Kaur (Owner of the shop) mentioned that accused was her tenant.
PW-6 SI Sunil Jain (First Investigating Officer) narrated the entire episode and deposed about various documents prepared by him.
PW-7 HC Bachhu Singh (Recovery Witness) supported recovery. PW-8 Ct. Madan Lal (Recovery Witness) supported recovery. PW-9 Insp. Akash Rawat (Second Investigating Officer) justified the investigation carried out by him.
4. Statement of accused was recorded under Section 313 Cr.P.C FIR No.623/2004 State Vs Shashi Kant Page 3 of 13 wherein he denied recovery and stated that he has been falsely implicated. He stated that recovery has been planted upon him.
5. Two defence witnesses were examined was examined.
DW-1 HC Vinod Kumar produced the summoned record of FIR No.970/2004 registered at PS Lajpat Nagar to demonstrate that Rajesh is a stock witness who was also cited as witness in the said FIR by the same Investigating Officer (SI Sunil Kumar).
PW-2 Vijay Kumar Srivastava, Ahlmad from the court of Ms. Beena Rani, Ld. CMM (South East District), Saket Courts, New Delhi produced the court file of case FIR No.970/2004 wherein Rajesh deposed as a public witness. It was a similar case registered under Section 63/65/48A of Copyright Act and under Section 292 IPC at PS Lajpat Nagar.
Arguments
6. I have heard the arguments advanced at bar by Ld. APP for State and Ld. Defence Counsel and have perused the record.
7. It has been argued by the defence counsel that recovery has not been proved and no public witness was joined in investigation. He contended that although, Rajesh Kumar has been portrayed as a public witness but in fact, he is a stock witness, who has been regularly deposing in other cases. He argued that testimony of police officials is not reliable as it contains various contradictions. Counsel has mentioned that the sanctity of case property was not maintained and there is no evidence to suggest that the VCDs/DVDs were containing pornographic video films. He argued that no expert witness has been FIR No.623/2004 State Vs Shashi Kant Page 4 of 13 examined and pointed out towards infirmities in investigation. He mentioned that this is a fit case where the benefit of doubt should be advanced to the accused.
8. On the other hand, Ld. APP for the State has countered the arguments of defence mentioning that there is no reason to doubt the testimony of Rajesh Kumar. He stated that all the spot witnesses have deposed in sync and recovery stands proved. He argued that accused was found selling DVDs/VCDs in contravention of the provisions of Section 52A of the Act and none of the DVDs/VCDs were carrying the name or address of owner of the copyright. He contended that although, there are some contradictions in the testimony of police officials but the same are in inconsequential. He argued that minor contradictions are bound to appear but it would be grossly unfair to discard the testimony of spot witnesses merely because of these variations. He submitted that charges against the accused have been proved beyond reasonable doubt.
Brief reasons for decision
9. I have perused the record in the light of respective arguments.
10. In order to establish charge under section 63 of the Act, prosecution has to establish that accused knowingly infringed or abetted the infringement of the copyright in a work. First and foremost ingredient of the offence is that recovery of the infringed articles from the possession, or at the instance of accused, must be proved. Thereafter, it must be established that the articles recovered from the possession of accused were, in fact, infringed articles. For proving charge under Section 68A of the Act, it is called upon the prosecution FIR No.623/2004 State Vs Shashi Kant Page 5 of 13 to establish that accused published a sound recording or a video film in contravention of the provisions of Section 52A of the Act. Section 52A of the Act provides the particulars which are required to be included in sound recording and video films and mandates that no person shall publish a sound recording in respect of any work, unless, the particulars stated under Sub- Section 1(a) to 1(c) have been displayed on the sound recording and container thereof. Similarly, Sub-Section 2 of Section 52A prescribes particulars which are required to be displayed on a video film and its container. In the present matter, the entire case of prosecution rested upon the recovery purportedly made from the shop of accused.
11. In order to prove recovery, prosecution relied upon the testimony of Rajesh Kumar (PW-2), who is stated to be a public witness. Testimony of police officials, who were members of the raiding team, is also material. Let us peruse the testimony of these witnesses in chronological order.
12. Rajesh Kumar (PW-2) stepped into the witness box and supported recovery. He stated that he went to Gaffar Market, Karol Bagh for purchasing some articles and voluntarily joined the raiding party. Defence has challenged the testimony of this witness primarily on the ground that that he is a stock witness who has been regularly deposing at the instance of police officials in similar cases. Ld. Defence Counsel gave a suggestion to this witness that he has been a witness in other FIRs besides the present case. He was also confronted with the details of those FIRs but an evasive reply was given by him. I take liberty to quote the relevant extracts. The witness stated, " It is wrong to suggest FIR No.623/2004 State Vs Shashi Kant Page 6 of 13 that I am a witness in five more cases besides the present case. I can not admit or deny the suggestion that I have been a witness in FIR No.970/2004 of PS Lajpat Nagar; FIR No.393/2003 of PS Moti Nagar; FIR No.154/2003 of PS Ambedkar Nagar; FIR No.569/2002 of PS Kotwali and FIR No.826/2002 of PS Tilak Nagar" . The reply given by this witness becomes relevant when it is read in the light of the documents produced by the defence witnesses. HC Vinod Kumar (DW-1) produced the record of case FIR No.970/2004 which revealed that this witness was also a witness in the said FIR which was investigated by the same investigating officer. Vijay Kumar Srivastava (DW-2) produced the judicial file of case FIR No.970/2004 registered under Section 63/65/68A of the Act and Section 292 IPC at PS Lajpat Nagar. Perusal of the said judicial file revealed that Rajesh Kumar deposed as PW-2 in the said trial and narrated a parrot like statement which is almost similar to the one given by him in the present case. In the said case also, he deposed that he voluntarily joined the raiding party and participated in the raid carried out by the police. The record produced by the defence witnesses, read in the light of the evasive reply given by Rajesh Kumar, leaves no scope for doubt that he is a stock witness who has been planted by the police to lend support to the investigation. The fact that police officials planted a public witness mentioning that he voluntarily joined raiding party puts question-mark over the entire investigation. The testimony of Rajesh Kumar, who is apparently a planted witness, is to be discarded. Now, let us peruse what other spot witnesses have deposed about recovery.
13. SI Sunil Jain (PW-6) supported recovery mentioning that 501 FIR No.623/2004 State Vs Shashi Kant Page 7 of 13 pirated DVDs, 2750 pirated VCDs and 141 pirated MP3s alongwith 48 pornographic VCDs/DVDs were recovered from the shop of accused. He stated that secret information was received at around 01.45 PM and thereafter, raiding team was constituted. He stated that raiding team left the police station at around 02.15 PM and reached the main gate of Karol Bagh at around 03.45 PM. He mentioned that after reaching the entrance gate of Karol Bagh Police Station, he requested 5-6 public persons to join the raiding party but none agreed except Rajesh Kumar. He stated in his cross examination that after reaching the MCD Market of Karol Bagh, he did not request any other shopkeeper or public person to join investigation as Rajesh Kumar had already joined the raiding party. He stated that raiding party reached the spot on a government vehicle and took the route from INA Market, Shankar Road via Sir Ganga Ram Hospital. He stated that he remained at the spot for about 3-4 hours. He mentioned that recovered DVDs/VCDs/MP3s were not played on a player and that the same were deposited at the Malkhana.
14. Record demonstrates that there are apparent contradictions between the testimony of SI Sunil Jain and the version given by other members of raiding team. HC Bachhu Singh (PW-7) stated in his cross examination that secret information was not received in his presence. He stated that he does not know whether any departure entry was made by the raiding party before leaving the police station. He mentioned that for reaching the spot, raiding party took the route from EOW Office to RML Hospital via Ridge Road Karol Bagh. He mentioned that he does not remember whether Investigating Officer made any FIR No.623/2004 State Vs Shashi Kant Page 8 of 13 efforts to join public witness in the raiding party. He stated that he can not say whether Investigating Officer had already intimated the particulars of Rajesh Kumar to the raiding party. Thus, there are variations in the testimony of member of raiding party which creates doubt about their present at the spot. SI Sunil Jain and HC Bachhu Singh mentioned a different route taken by the raiding party. There are contradictions in their testimony about the efforts made by them for joining public witness and sharing of secret information. The testimony of these witnesses is not reliable. Ct. Madan Lal (PW-8) also supported recovery but his testimony also does not inspire confidence.
15. Apart from the contradictions in the testimony of police witnesses, their testimony has also been challenged on the ground that no sincere efforts were made by them to join public witness. Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and credit worthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. Indubitably, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. However, it puts the Court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution. Simultaneously, FIR No.623/2004 State Vs Shashi Kant Page 9 of 13 prosecution has to offer satisfactory explanation for not associating independent witnesses and more so, when they were available right at the elbow. In such a situation, courts are fully justified in finding out the reasons as to why no such person came forward and whether the investigating agency did its best to persuade independent persons.
16. Even when police come across any such offender by chance, it should not waste even a single second to call for corroboration from independent source more so when such persons are available to the police team right at its elbow. Onus would be on the prosecution to establish that the association of such persons was not possible on the facts and circumstances of a particular case. The search before an independent witness would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search. That being so, the authorized officer must follow the reasonable, fair and just procedure scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of the judicial process may come under cloud if the Court is seen to condone acts of violation of such safeguards which may also undermine respect for law.
17. The record shows that there are contradictions and discrepancies in the testimony of police officials. Admittedly, the place of recovery was a crowded place and there were number of shops surrounding the shop of accused FIR No.623/2004 State Vs Shashi Kant Page 10 of 13 but no genuine effort was made to join public witnesses. Instead of making sincere efforts to join public witnesses, Investigating Office planted a stock witness (Rajesh) to provide support to his case. On being questioned about the efforts made by him to join public witness, IO/SI Sunil Jain (PW-6) stated that he did not make any effort to join public witnesses as Rajesh had already joined the raiding party. It is to be appreciated that provisions of Section 100(4) Cr.P.C are not a mere formality. In the present case, police officials not only flouted those provisions but in order to make the investigation convincing, planted a stock witness as public witness without making any efforts to join an independent witness.
18. On appreciating the record, I have reached a conclusion that there is no reliable public witness and the testimony of police officials does not inspire confidence. It would not be safe to record a find of conviction on the basis of uncorroborated testimony of police officials. The fact that police officials planted a stock witness, in itself, makes the whole raid untrustworthy. Apart from this, there are apparent infirmities in the investigation carried out by the investigating Officer as provisions of Section 64 of the Act were not complied with. Section 64 of the Act grants power to a police officer not below the rank of Sub- Inspector to seize, without warrant, all copies of infringed work found during search of any premises. However, there is a rider attached to this provision that the seized infringed copies must be produced before a Magistrate as soon as practicable. In the present case, Investigating Officer seized the case property and deposited it at the malkhana. Thus, the purported infringed articles FIR No.623/2004 State Vs Shashi Kant Page 11 of 13 were never produced before the Magistrate. The fact that Investigating Officer failed to comply with the mandatory provisions of section 64 of the Act raises question mark over the fairness of investigation.
19. It is the prosecution' s case that some of the DVDs/VCDs were containing pornographic movies but there is no evidence to establish these allegations. The recovered VCDs/DVDs were never played to establish that those DVDs/VCDs did contain pornographic video films. SI Sunil Jain admitted in his cross examination that he did not play the recovered pornographic VCDs/DVDs. In fact, none of the VCDs was ever played or examined by a technical expert. There is no evidence to show that the Investigating Officer took any original product from the owner for comparing it with the alleged duplicate or pirated VCDs/DVDs. There is nothing on record to suggest that there was any material before the Investigating Officer to differentiate between the pirated and genuine VCDs/DVDs. The seized VCDs/DVDs were not sent to any agency for obtaining opinion regarding the alleged piracy. All these shortcomings puts further dent in prosecution' s case.
20. Further, the recovered VCDs/DVDs were produced in the court during examination of Rajesh Kumar and it was found that the seal was not legible. It was noticed that the gunny bags containing the pirated VCDs/DVDs were having big holes from which the VCDs/DVDs kept inside could be removed without disturbing the seal. The fact that prosecution failed to maintain the sanctity of the case property becomes material when it is read in the light of the infirmity already pointed out in the earlier paras that the FIR No.623/2004 State Vs Shashi Kant Page 12 of 13 recovered case property was never produced before the concerned Magistrate. It is the bounded duty of prosecution to preserve the sanctity of case property, particularly, in cases where the entire case rests upon recovery. In the present case, the case property was kept in such a manner that the DVDs/VCDs could be easily taken out and kept in the gunny bags wherein the purportedly recovered pirated DVDs/VCDs were kept. This circumstance also raises doubt and the benefit has to be given to the accused.
21. In view of the discussion made in the above stated paras, I have reached a conclusion that prosecution has failed to establish the charge against the accused. The recovery from the spot is doubtful as no independent witness was joined by the police official despite availability. The sanctity of the recovered case property was not maintained. The mandatory safeguards provided under Section 64 of the Act were not complied with. The pirated VCDs/DVDs were never examined to establish its contents. All these infirmities leads to the inevitable conclusion that charges under section 63/68A of the Act and Section 292 IPC have not been established. Accordingly, accused Shashi Kant stands acquitted in the present case.
22. File be consigned to record room after necessary compliance.
Announced in open Court (SUDHANSHU KAUSHIK)
on 23.12.2014 ACMM-01, Central District,
Tis Hazari Courts, Delhi
It is certified that this judgment contains Thirteen (13) pages and each page bears my signatures.
(SUDHANSHU KAUSHIK) ACMM-01, Central District, Tis Hazari Courts, Delhi FIR No.623/2004 State Vs Shashi Kant Page 13 of 13