Delhi District Court
State vs Vinod Nagpal Etc. on 27 March, 2018
IN THE COURT OF SH. DEEPAK SHERAWAT
CHIEF METROPOLITAN MAGISTRATE
PATIALA HOUSE COURTS : NEW DELHI
FIR No: 363/2001
PS: Connaught Place
U/s: 63/68A Copyright Act and 292 IPC.
State v/s Vinod Nagpal etc.
Date of institution : 07.02.2003
Date of final arguments : 27.03.2018
Date of Judgment : 27.03.2018
a) CC No. : 40207/2016
b) Date of commission of : 19.07.2001
offence
c) Name of complainant : Shri Hassan Naved
S/o Shri Haider Abbas
R/o M-19A, 2nd floor,
NDSE-II, New Delhi.
d) Name of accused : (1) Vinod Nagpal
S/o Shri R.B. Nagpal
R/o WZ-143/3B, Malviya Nagar,
Main Najafgarh Road, New Delhi.
(2) Vikrant Sharma,
S/o Shri Krishan Shankar
R/o MB-140, Shakarpur, Delhi.
(3) Harbhajan Singh
S/o Shri Jarnail Singh
R/o 241, Chand Nagar,
Tilak Nagar, New Delhi.
e) Offence complained of : U/s 63/68A Copyright Act and 292
IPC.
f) Plea of accused : Pleaded not guilty
g) Final Order : ACQUITTED
FIR No: 363/2001 State vs. Vinod Nagpal etc. Page No: 1 of 7
JUDGMENT
1 The accused in this case were sent up for trial for the commission of offences under section 63/68A Copyright Act and section 292 IPC.
2 The case of the prosecution in brief is that a complaint was lodged by the complainant on 19.07.2001 that the complainant is authorized for protection of piracy of films Aks, Gaddar, Lagaan, Tum Bin, Albela, Dhadkan, Jodi No.1, Pagalpan, Mujhe Kuch Kahna Hai etc. and that the complainant came to know that certain persons are involved in selling pirated CDs of the above films and on the basis of complaint an FIR was registered and an investigation was carried. During investigation, a raid was conducted at Shop no. M-13, Palika Bazar, New Delhi and the accused Vinod Kumar Nagpal was found selling pirated CDs/VCDs/MP3 thereby infringing the copyright. A total 733 Hindi, 797 English and 507 pornographic CDs were recovered from accused Vinod Kumar Nagpal and at the instance of accused Vinod Kumar Nagpal, a raid was also conducted at the shop no. M-9, Palika Bazar where accused Vikrant Sharma and Harbhajan Singh were found in possession of 131 Hindi and 454 English pirated movies. Statements of witnesses were recorded. Accused were arrested and after completing the other formal investigation, the challan was presented before the court for trial.
3 A prima facie case having been made out against the accused, charge were framed against the accused Vikrant Sharma and Vinod Kumar on 27.06.2006 under section 63/68A of Copyright Act and section 292 IPC to which they pleaded not guilty and claimed trial. Accused Harbhajan Singh was discharged.
FIR No: 363/2001 State vs. Vinod Nagpal etc. Page No: 2 of 7 4 To prove its case against the accused the prosecution has examined seven witnesses. PW1 HC Murari Lal proved the seizure memo Ex.PW1/A and Ex.PW1/F, arrest memo Ex.PW1/B and Ex.PW1/F, personal search memo Ex.PW1/C and Ex.PW1/G, disclosure statement Ex.PW1/D and Ex.PW1/H. PW2 HC Ram Kewal was the member of the raiding team and he deposed on the line of PW1 and also proved the case property Ex.P-1, P-2 and P-3. PW3 Shri Anil Malhotra is the Chairman of M/s. Malhotra Copyright Protection Agency Pvt. Ltd. and deposed that he authorized Hassan Mohd. Naved to conduct survey and report if any copyright infringement exist and proved authorization in his favour Ex.PW3/A and power of attorney in respect of certain movies Ex.PW3/B-1 to Ex.PW3/B-15. PW4 Ct. Anil Kumar deposed that he took the rukka to the PS Connaught Place and got FIR registered. PW5 proved the copy of FIR Ex.PW5/A and endorsement on rukka Ex.PW5/B. PW6 Shri Vashu Bhagnani is the producer of film Mujhe Kuch Kahna Hai and deposed that he had authorised M/s. Malhotra Copyright Protection Agency to undertake survey and detect infringement/violation of copyright. PW7 Inspector Ranjay Atrishya is the IO of the case and deposed on the line of proceedings of investigation and proved rukka Ex.PW7/A, arrest memo Ex.PW7/B, personal search memo Ex.PW7/C, body inspection memo Ex.PW7/D and Ex.PW7/E. 5 After closing of the prosecution evidence, statements of accused were recorded under Section 313 r/w Sec. 281 CrPC. In their statements, accused denied to have committed the offence and claimed to have been falsely implicated in this case. Accused further declined to lead any defence evidence.
6 I have heard the arguments and perused the record.
FIR No: 363/2001 State vs. Vinod Nagpal etc. Page No: 3 of 7 7 Under section 52A of Copyright Act if any person wishes to post a video film that is not his own, he must mention
1. The name and address of the person making such video film and a declaration that the person has obtained necessary license and consent of the owner of the copyright making the video recording.
2. If certification is required from the Board of Film Certification under Section 5A of the Cinematograph Act, then such Certification must be present.
3. Name and address of the owner of the copyright.
8 In order to prove that the accused had not complied with the directions mentioned under section 52A of the Act, the prosecution was in the first place required to prove the recovery of the pirated VCDs/CDs from the possession of the accused. As per the prosecution story, recovery was first effected from the shop of accused Vinod Nagpal and subsequently on his disclosure, second accused Vikrant was arrested and recovery was made from him. But in the evidence produced by the prosecution, it has not been made clear as to which VCDs or CDs were recovered from which of the accused. PW1 HC Murari Lal, who had joined the investigation, has not testified as to from which of the accused which of the VCDs/CDs were recovered. He has merely identified the VCDs as having been recovered from the shop of the accused persons without mentioning the separate account of the VCDs/CDs from each of the shop. In the present case, two shops were raided by the team and two separate proceedings with regard to seizure of case property were conducted and consequently, the prosecution witnesses should have identified the recovered case property in a manner to prove the exact recovery from both the accused. In the evidence of PW1, it has not been mentioned while producing the case property as to from which seal FIR No: 363/2001 State vs. Vinod Nagpal etc. Page No: 4 of 7 the same were sealed, though in his testimony PW1 has stated that the VCDs seized from the two shops were sealed with the seal of RA.
9 Another recovery witness PW2 has also testified on the similar line as PW1 and he has also failed to identify the case properties separately from each of the shops. Identification of case property by him is not reliable because the bags containing the VCDs/CDs have again been produced duly sealed without disclosing as to how the seal once broken during the evidence of PW1, came to be affixed again. Moreover, it has not been mentioned from which seal the case property was sealed. So far as the PW7/IO of the case is concerned, the case property has not even been produced before him for identification.
10 Again, the prosecution has failed to produce any public witness to prove the recovery of the pirated CDs/VCDs despite the place of the recovery being a crowded place. The only public witness who is stated to have joined the investigation at the time of recovery was Mr. Hassan Naved on whose complaint the FIR in the present case was lodged. However, he has not been examined as a witness by the prosecution. No other public witness has been examined. All the witnesses to the recovery being police officials, such recovery does not inspire confidence. Similar view has been expressed by the Supreme Court in Sanspal Singh v. State of Delhi, (1998) 2 SCC 371 and the Delhi High Court in Staila Sayyed v. State, (Delhi)2008(4) JCC 2840.
11 In the present case, the prosecution has even failed to prove any connection of accused with the shops from where the articles are alleged to have been recovered. The prosecution has not produced any documentary proof or other evidence to show that the accused persons were owners of the shops. There is no evidence FIR No: 363/2001 State vs. Vinod Nagpal etc. Page No: 5 of 7 from the concerned authority i.e. NDMC to establish the identity of the owner in whose name the aforesaid shops were registered. No witness from the NDMC has been examined. No report from the said authority has been summoned or produced in the evidence to show that the accused were in any manner connected with the shops.
12 Moreover, as per section 64 of the Copyright Act, all copies of the seized article must be produced by the investigating officer before a Magistrate. But in this case, there is no evidence to suggest that the VCDs/CDs recovered from the shops of the accused were ever produced before any Magistrate in terms of section 64 of the Copyright Act. This fact also renders the recovery as suspicious. No list of the CDs which were recovered has been produced in evidence.
13 Similarly, the prosecution has also failed to prove that the CDs recovered from the possession of the accused were carrying any obscene material. As per the evidence, which has come from PW4 and PW5, the CDs contained inlay cards of nude pictures. In the first instance, the recovery of CDs has not been proved by the prosecution. Secondly, no witness has been produced to prove the fact that the CDs were carrying obscene pictures. In order to prove the obscenity as required u/s 292 IPC, the prosecution has to prove the surrounding circumstances such as the pose, the posture, the suggestive element in the picture alongwith the evidence of those in whose hands the same was likely to fall. Besides, the contents of the CDs have not been proved. It has not been shown that these CDs were pornographic as containing any obscene picturisation.
14 In the result, I find that prosecution has failed to prove its case against the accused beyond reasonable doubt and therefore, accused Vinod Nagpal and Vikrant Sharma are acquitted for the FIR No: 363/2001 State vs. Vinod Nagpal etc. Page No: 6 of 7 offence punishable under Section 63/68A of Copyright Act and section 292 IPC. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT DATED: 27.03.2018.
(DEEPAK SHERAWAT) Chief Metropolitan Magistrate Patiala House Courts New Delhi FIR No: 363/2001 State vs. Vinod Nagpal etc. Page No: 7 of 7