Delhi District Court
State vs . Akshay Nigam on 20 November, 2018
IN THE COURT OF MS. CHETNA SINGH: ACMM-02
(CENTRAL), TIS HAZARI COURTS, DELHI
STATE Vs. AKSHAY NIGAM
New Case No: 300241/16
FIR N0. : 59/12
U/S : 63 Copyright Act, 1957
PS : Sadar Bazar
Date of Institution : 21.04.2014
Date on which case reserved for Judgment : 20.11.2018
Date of Judgment : 20.11.2018
JUDGMENT
1. FIR No. of the case : 59/2012
2. Date of commission of offence : 01.06.2012
3. Name of the accused : Akshay Nigam
S/o Sh. Dawarka Nath Nigam,
R/o H.No. 170, Gali Batsiyan,
Chawri Bazar, Delhi-06.
4. Offence complained of : 63 Copyright Act, 1957
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5. Plea of accused : Pleaded not guilty.
6. Final order : Acquitted.
BRIEF FACTS
1. The story of the prosecution is that on 01.06.2012 at time unknown at 5022/08, Ram Rahim Market, Rui Mandi, Sadar Bazar, Delhi, accused Akshay Nigam was found in implied possession of duplicate/spurious products of Hindustan Uniliver Ltd. As detailed in the seizure memo Mark X which was in his possession for the purpose of selling the same and thus infringed copyright of the complainant company i.e. HUL and thereby he committed offenses punishable under Section 63 of Copyright Act.
2. On the basis of a complaint, present FIR was registered. After carrying out the investigation, charge sheet was filed. Accused was summoned. After compliance of section 207 Cr. P.C, charges u/s 63 Copyright Act, 1957 were framed against accused on 08.09.2015.
APPRECIATION OF EVIDENCE
3. In order to prove its case, the prosecution has examined only one witness in total.
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4. PW-1 Sh. Yogesh Kumar deposed that Brand Protection Associates (BPA) for Hindustan Unilever Ltd. (HUL) authorized him vide Ex. PW1/A bearing his signature at point A to protect him the product of HUL in the market by HUL and the authority given in this regard is Ex PW1/B. He made complaint before the concerned DCP of Delhi Police on behalf of BPA which is Ex. PW1/C bearing his signature at point A. They enquired about the duplicate products of HUL in the market and they came to know that the products were sold in the shop at 5022/8, Ram Rahim Market, Sadar Bazar, New Delhi and the same was informed to office of ACP, DIU North, Timar Pur, Delhi on 01.06.2012. A team was constituted on the same day at his request consisting of himself and other three police persons including IO. He exactly do not remember at this time if there were more police persons in the team and he remember the name of three police persons namely SI Sri Bhagwan, Shamsher and Yashpal, who were part of the team. They left for office of ACP, DIU at about 10.30 AM for the shop mentioned above in their respective vehicles and met at Teliwara Chowk, Sadar Bazar, Delhi. All the team members reached at the shop of Mr. Akshay Nigam at 5022/8, Ram Rahim Market, Sadar Bazar, New Delhi where the worker of Mr. Akshay Nigam was present at the shop which a cosmetic shop. In the meantime, the police persons had asked to public persons to join the raid but they did not agree and the police had started proceedings of raid. There were two persons present in the shop but one person was the main person dealing in the shop who had disclosed about the shop owner namely Mr. Akshay Nigam. Police had told the reason of its FIR No . 59/12 PS Sadar Bazar State Vs. Akshay Nigam Page No. 3 of 7 arrival at the shop to that person and police started to see the products of HUL available in the shop which includes "Fair & Lovely" face cream, "Lakme Foundation", "Ponds" powder and wrappers/ packet wrappers of fair & lovely were also recovered. The number of wrappers might be about more than 500 in numbers. SI Sri Bhagwan had collected all the counterfeit products in five different bags. All the products categorically kept in the bags and sealed with the seal of "SB". SI Sri Bhagwan had prepared seizure memo of counterfeit products vide seizure memo already marked X and now Ex.PW1/D bearing his signature at point A. The sample original products of HUL were also provided to the IO by him vide memo already marked as Mark Y and now Ex.PW1/E bearing his signature at point A. The original sample products were collected by him from the local dealer. The police officials had asked for the documents regarding the shop and the same was provided by the person namely Mujjabur present at that shop at that time. The documents i.e. telephone bill and visiting card of the shop were given to IO vide memo Ex.PW1/F bearing his signature at point A. He left the spot at about 2:00-2:30 PM on that day. After sealing the case property i.e. seized counterfeit products, the seal was handed over to him vide memo Ex.PW1/G bearing his signature at point A and thereafter the seal was delivered to SI Sri Bhagwan vide memo Ex.PW1/H bearing his signature at point A. He do not remember that his statement was further recorded by the police thereafter or not. He had given the certificate of declaration about his expertise to IO with respect to the identification of counterfeit products of HUL which is Ex.PW1/I bearing his signature at point A. Moreover, a certificate is also issued about his training from HUL FIR No . 59/12 PS Sadar Bazar State Vs. Akshay Nigam Page No. 4 of 7 for identifying the difference between original and duplicate products of company HUL and the certificate is Ex.PW1/J. The products "Fair & Lovely", "Ponds" and "Lakme" are the products of company HUL which is only authorized company for this products under law of copyright and the certificate issued from the office Registrar of Copyright is marked as Mark 1/1 (Colly) (five pages) and under law of trademark certificate of which are collectively marked as Mark 1/2 (Colly) (four pages).
However, further examination in chief was deferred for want of the case property and production of original documents.
5. On account of closure of prosecution evidence, statements of accused persons u/s 313 Cr. P.C were recorded on 20.11.2018 wherein he has pleaded innocence and they had opted not to lead any defence evidence. Final arguments heard on 20.11.2018 itself at request of Ld. Defence counsel.
6. I have heard the rival submissions and carefully perused the record.
REASONS FOR DECISION
7. In the present case the prosecution was required to examine 13 witnesses. However, out of 13 witnesses, only one witness was examined as PW1 and his examination in chief was deferred for want of case property. Thereafter remaining witnesses were summoned repeatedly. However, repeated opportunities were sought by the complainant company FIR No . 59/12 PS Sadar Bazar State Vs. Akshay Nigam Page No. 5 of 7 to produce the documents. Already various opportunities were given and despite as many as 10 opportunities, the original documents were not produced by the complainant company.
Despite repeated opportunities granted to the prosecution, PWs Aditya Singh and Yogesh Kumar failed to appear before the court and hence as sufficient opportunities already granted to the prosecution to examine these two witnesses, no further opportunity was required. Hence, prosecution evidence was ordered to be closed on 01.11.2018. As material witnesses of the prosecution were dropped, no purpose would have been served in examining the remaining witnesses and hence case of the prosecution remains unproved.
8. Thus, there is no other incriminating evidence against the accused on record. The onus to substantiate the case is upon the prosecution. In the present case, prosecution has failed to prove its case against the accused beyond reasonable doubt.
9. It has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court :-
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
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10. As a cumulative effect of the abovesaid discussion, I am of the opinion that a reasonable shadow of doubt is cast upon the prosecution version. Accused Akshay Nigam is acquitted of the charge framed for the offences punishable u/s 63 CR Act levelled against him.
11. Ordered accordingly.
Digitally signed by CHETNA CHETNA SINGH
SINGH Date:
2018.11.24
Announced in the open court 10:13:06 +0000
on 20.11.2018 (Chetna Singh)
Addl. Chief Metropolitan Magistrate-02
Central/THC/Delhi/20.11.2018
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