Delhi District Court
State vs . Mukesh Kumar Gupta & Ors. on 24 August, 2023
IN THE COURT OF MS. SHIVANI CHAUHAN,
CHIEF METROPOLITAN MAGISTRATE,
SOUTH-EAST DISTRICT, NEW DELHI
CNR No. DLSE02-000155-2011
State Vs. Mukesh Kumar Gupta & Ors.
FIR No. : 45/2011
U/s : 63 Copyright Act
Police Station : Govind Puri
Cr CASES : 89085/2016
Date of institution of case : 16.11.2011.
Date of reserving of judgment : Not reserved.
Date of pronouncement of judgment : 24.08.2023
JUDGMENT
1. Serial No. of the Case : 89085/2016
2. Date of Commission of Offence : 20.08.2011.
3. Name of the complainant : Sh. Rabindra Kumar
Bishwas.
4. Name, parentage & address of accused persons :
Mukesh Kumar Gupta S/o Sh. Bhuramal Gupta, R/o 663/8, First Floor, Govind Puri, Delhi. 110019. (Already convicted in plea bargaining proceedings on 31.01.2017).
Devender Aggarwal @ Sanju S/o Late Sh. Giriraj Kishore, R/o House No. 15/213, Chhata Wali Gali, Noori Darwaja, Agra, Uttar Pradesh. (Already convicted in plea bargaining proceedings on 31.01.2017). Bharat Kumar S/o Sh. Mohinder Pal, R/o Flat No 901, Tower No. 8, Sunshine County, Ansal, Kundli, Haryana - 131029.
5. Offence complained of or proved : U/s 63 Copyright Act and u/s 103/104 Trademark Act.
6. Plea of Accused : Pleaded not guilty
7. Final Order : Acquitted FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 1 JUDGMENT Introduction:
1. On 20.08.2011, Sh. Rabindra Kumar Bishwas, Director and Authorized Signatory of M/s Dev Pharmacy Pvt Ltd gave a written complaint to office of Assistant Commissioner of Police regarding Copyright and Trademark Infringement of 'Paurush Jiwan' owned by M/s Dev Pharmacy Pvt Ltd. Upon receipt of information, a Raiding Team was formed and raid was conducted at different places / shops at Govind Puri, Bhagirath Place and Agra, Uttar Pradesh.
2. In pursuance of the raid at the shop of accused Mukesh Kumar Gupta (already convicted vide Order dated 31.01.2017), 475 packets of alleged product 'Paurush Jiwan' were recovered from the shop of the accused. The same were seized by the Investigating Officer (hereinafter referred as IO for the sake of brevity) and taken into custody. Accused Mukesh Kumar Gupta disclosed that he FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 2 procured the said product from one Bharat who was running a shop at Bhagirath Place in the name of Inder Medicos.
Subsequently, a raid was conducted at the shop of accused Bharat at Bhagirath Place. However, nothing incriminating was recovered from the possession of the accused or from the shop of the accused. However, he disclosed that he obtained the same from one Devender Aggarwal @ Sanju who was running a shop at Heeng Ki Mandi, Agra, Uttar Pradesh. A raid team was formed and proceeded for Agra. With the assistance of local police officials, a raid was conducted at the shop of accused Devender Aggarwal @ Sanju and around 400 packets of 'Paurush Jiwan' were recovered from his possession. The same were seized by the IO and accused Mukesh Kumar Gupta and Devender Aggarwal were arrested in the present case. Samples were taken from the recovered case property and were sent to FSL, Rohini for comparison and examination. Accused Bharat was formally arrested in the present case. However, he obtained anticipatory bail in the present case and was released on bail.
FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 3 Prosecution's Case :
3. The case of the prosecution is that on 31.01.2011, a complaint was given by Sh. Rabindra Kumar Biswas, Director of Dev Pharmacy Private Limited regarding the copyright infringement and manufacturing, selling and storing of their product namely 'Paurush Jiwan' by Mukesh Kumar Gupta at his shop. Upon receipt of this information, present FIR which is Ex.A1 was registered for offences u/s 63/68 of Copyright Act. After completion of investigation chargesheet was file before Ld Predecessor.
4. Accused Mukesh Kumar Gupta, Devender Aggarwal and Bharat were summoned. Copy of chargesheet and documents were supplied to them. Subsequently, charges were framed against accused persons by Ld. Predecessor Court vide Order dated 18.07.2016 for the offence u/s 63 of the Copyright Act and u/s 103/104 Trademark Act. Accused persons pleaded not guilty and claimed trial. Matter was then listed for recording of Prosecution's Evidence. To FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 4 prove its case, prosecution examined seven witnesses.
Prosecution Witnesses deposed as follows:
5. Sh. Rabindra Kumar Bishwas i.e., the complainant was examined as PW1. He deposed that he was one of the Director of M/s Dev Pharmacy Pvt Ltd since the year 2008 and the said company had two directors. He was authorized representative of M/s Dev Pharmacy Pvt. Ltd. having its registered office at Deshbandhu Park, Hawra (North), 24 Pargana, West Bengal which was involved in manufacturing of Ayurvedic medicines. Their company also had manufacturing facility and office at E-17/E-17A, Sector-8, Noida, Uttar Pradesh. Their company also manufactures an ayurvedic proprietary medicine in the brand name of "Paurush Jiwan" since inception of the company and they are owners of copyright and trademark rights over brand name "Paurush Jiwan". They came to know that certain individuals / agencies were involved in manufacturing / marketing / storing and selling of counterfeit materials of FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 5 their product "Paurush Jiwan". He then filed a complaint on 31.01.2011 in the office of Additional Commissioner of Police, New Delhi, the same is Ex.PW1/A. The investigation of his complaint was marked to Sub-Inspector Rajeev Kumar Vats. On 14.02.2011, he along with the Manager of their company Sh. Jitender Singh reached at the office of DIU/ South East District where he shared the information about storing and selling of counterfeit product of their brand "Paurush Jiwan" at a shop namely Amrit Pharma at 663/8, 1st Floor, Main Road, Govind Puri, Kalkaji, Delhi. Investigating Officer formed a raiding party which constituted police officials, Sh. Jitender Singh, IO and himself alongwith Custom and Food Inspectors. They then reached at the aforementioned address where they met Mukesh Gupta. A raid / search was conducted in the said premises / shop and from the possession of Mr. Mukesh Kumar Gupta 475 counterfeit packets of 'Paurush Jiwan' capsules were recovered and he identified them as counterfeit as the packing / printing on the packing and material of the capsules were different from their genuine FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 6 product. IO then seized them after sealing with the seal of "RV". IO took four packets from the seized products and they were seized by Drug Inspector Vijay Kumar who was also accompanying them. IO seized the case property vide seizure memo Ex.PW1/B and then separated six packets randomly from the remaining 471 packets. He seized them in the present case from the possession of the accused Mukesh Kumar Gupta and also sealed the same with the seal of "RV". IO then arrested accused Mukesh Kumar Gupta. He also handed over the authorization letter to IO to represent his company in the matters of enforcement action on counterfeits and to coordinate with legal authority, the same is Ex.PW1/C. He also handed over letter alongwith original packaging box of their product 'Paurush Jiwan' capsules with his letter dated 14.02.2011 which is Ex.PW1/D. The original packaging box containing the original printing of product 'Paurush Jiwan' capsules and pasted / affixed on a white sheet Ex.PW1/E. He also handed over IO the documents / certificate regarding their copyright in respect of label "Paurush Jiwan" which is the FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 7 product of their company, which is Ex.PW1/F(colly)(02 pages). The notary attested copy of their trademark certificate of brand Paurush Jiwan is Ex.PW1/G (colly 07 pages) and he handed over the same to the IO. He then directed his Manager Jitender Singh to assist the IO in further investigation and got relieved from the case. On 28.05.2011, he handed over 02 original packets of their product 'Paurush Jiwan' capsules to the IO which he sealed and with the seal of "RV" and then seized vide seizure memo Ex.PW1/X. IO then inquired him and recorded his statement. He correctly identified the case property before the Court. Case property is Ex.P1 (colly), Ex.P2 (colly) and Ex.P3 (colly).
6. Sh. Jitendra Kumar S/o Sh. Darshan Lal was examined as PW2. He corroborated the testimony of PW1 regarding the complaint, formation of raiding party and conducting raid proceedings at the shop of Mukesh Kumar Gupta. He further deposed that during interrogation accused Mukesh Kumar Gupta told the IO that he procured the FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 8 seized counterfeit materials from the shop of Inder Medicos, 1572/11, AC Market, near Central Bank, Bhagirath Palace, Chandni Chowk, Delhi which was owned by one Bharat Kumar. Subsequently, on 19.07.2011, a raid was conducted at the said shop where he accompanied the IO and other police officials. However, nothing incriminating was recovered from the said shop. IO then prepared non recovery memo at the said shop vide Ex.PW2/A. On interrogation by the IO, accused Bharat informed the IO that he used to purchase Paurush Jiwan capsules from one person namely Sanju who used to visit him from Agra, Uttar Pradesh. Accused Bharat gave the address of Sanju, which was shop no. 8/566, Heeng ki Mandi, near Giriraj Mishthan Bhandar, Agra, Uttar Pradesh. On 20.08.2011, he alongwith IO reached at the said shop at Agra. IO instructed him to be a decoy customer and ask the shop owner for Paurush Jiwan capsules. He reached at the shop and found Sanju present at the said shop. He asked for 100 packets / boxes of Paurush Jiwan capsules, upon which Sanju brought 02 cartons of Paurush Jiwan capsules from FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 9 the shop. He then signaled the IO and other team members. The raiding party then reached at the shop, searched the shop at his instance and recovered total 08 cartons of counterfeit Paurush Jiwan capsules. Each carton was found containing 50 packets of counterfeit Paurush Jiwan capsules. Each packet was containing 06 strips which were containing 10 capsules each. Accused Sanju @ Devendra Aggarwal was then asked to produced any bill / receipt or authorization regarding his possession of Paurush Jiwan capsules. IO then seized the said 08 cartons and separated 04 packets randomly as samples. IO seized the recovered material in 03 gunny bags and sealed them with the seal of "RV". IO then seized the same vide seizure memo Ex.PW2/B. IO handed over the seal to Constable Sanjay after using it. IO then arrested accused Devendra Aggarwal in his presence vide arrest memo Ex.PW2/C and conducted his personal search vide memo Ex.PW2/D. During the course of investigation on 24.08.2011, he handed over 02 packets of original Paurush Jiwan capsules of batch no. 609 to the IO for the purpose of comparison which was duly FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 10 sealed with the seal of "RV". IO then seized it vide seizure memo Ex.PW2/X. IO inquired him and recorded his statement in this regard. He correctly identified the case property before the Court. Case property is Ex.P4 (colly). He correctly identified the case property which was recovered from the possession of accused Sanju @ Devendra Aggarwal and the said case property is Ex.P5 (colly). He correctly identified the samples which he handed over to the IO for the purpose of comparison and the same are Ex.P6 (colly).
7. Assistant Sub-Inspector Surender Singh was examined as PW3. He deposed that on 14.02.21011, he was posted as Head Constable at DIU/ South East District and on that day, complainant Rabindra Kumar Bishwas alongwith his manager Mr. Jitender Singh reached their office of DIU/ South East District where they shared specific information about storing and selling of counterfeit product of their brand "Paurush Jiwan" in a shop namely Amrit Pharma at 663/8, 1st Floor, Main Road, Govind Puri, FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 11 Kalkaji, Delhi. Thereafter, IO / Sub-Inspector Rajeev Vats endorsed the complaint of complainant Ex.PW1/A, prepared the rukka and got FIR registered through Constable Om Prakash at Police Station Govind Puri. IO / Sub-Inspector Rajeev Vats then formed a raiding party which constituted complainant, Jitender Singh, IO, Head Constable Rakam Singh, Constable Krishan, Constable Neenu and himself. One Custom and Food / Drug Inspector also accompanied them in the raid. They all reached at the abovesaid address where they met one Mukesh Gupta. A raid was then conducted at the said shop and 475 counterfeit packets of Paurush Jiwan capsules were recovered from the possession of Mukesh Kumar Gupta. IO seized the same after sealing with the seal of "RV". IO then separated four packets and they were seized by Drug Inspector Sh. Vijay Kumar. IO seized the case property vide seizure memo Ex.PW1/B. IO took out 6 packets randomly and took them as samples. He seized them and thereafter sealed them with the seal of "RV". IO handed over the seal to him after its use. IO then arrested accused Mukesh FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 12 Kumar Gupta vide arrest memo Ex.PW3/A and conducted his personal search vide memo Ex.PW3/B. IO then interrogated and recorded disclosure statement of the accused Mukesh Kumar Gupta vide Ex.PW3/C. IO also prepared pointing out memo of the shop of accused Bharat Kumar at 1572/11, AC Market, Bhagirath Palace, Chandni Chowk, Delhi on 15.02.2011 which is Ex.PW3/D. During further course of investigation on 28.05.2011, complainant Rabindra Bishwas reached their office and handed over the original packets of Paurush Jiwan capsules to the IO for the purpose of comparison. The same were seized by the IO vide seizure memo Ex.PW1/X. IO then inquired him and recorded his statement. The case property was then deposited in the malkhana. He correctly identified the case property before the Court. The case property which was recovered from the possession of accused Mukesh Kumar Gupta is Ex.P1(colly). The case property which was bearing the particular S-1, and A-2 and the seal of FSL, Rohini was correctly identified by the witness before the Court. The said case property are Ex.P2 (colly) and Ex.P3 (colly) FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 13 respectively.
8. Constable Sanjay Singh was examined as PW4. He deposed that in the year 2011, he was posted as Constable at DIU/ South East District. During the course of investigation, he alongwith Sub-Inspector Rajeev Vats, Constable Rajesh, Head Constable Surender and the AR of the victim company went to Agra, PS Kotwali and inquired about the shop of Sanju Halwai. The shop of Sanju Halwai was in front of Police Station Kotwali and they visited at the said shop where they came to know that the actual name of Sanju Halwai was Devender Aggarwal. After reaching at the said shop, they found 08 cartons which contained capsules of some pharmacy and the said cartons were seized by the IO. On 20.08.2011, a raiding party was constituted and they went to Agra, Uttar Pradesh. During the raid proceedings, they reached at the Police Station Kotwali, Agra, where IO / Sub-Inspector Rajeev Vats briefed the SHO of Police Station Kotwali about the purpose of their visit to Agra. IO also made an entry regarding the arrival in FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 14 the Police Station Kotwali, Agra. During the said proceedings, they verified the sweet shop of Devender Aggarwal @ Sanju from local persons. They then went to the sweet shop of the Sanju. Sh. Jitender was also a member of raiding party. After reaching at the said shop, he made a call to Sanju, and after hearing the ring of the mobile phone of the Sanju, who was also present at his shop, he identified accused Sanju. Raiding party then conducted the search at the shop of accused Sanju. In the said raid, 8 cartons (each carton containing 50 packets) of the capsules Paursh Jeevan were recovered. Sub-Inspector Rajeev asked Sanju to produce any bill of the said capsules. However, he could not produce the same. IO / Sub-Inspector Rajeev Vats then took four packets from the cartons randomly. He prepared pullanda of the same and marked the pullanda as A1. He also sealed them with the seal of 'RV'. The remaining cartons of the capsules were kept in three separate gunny bags and were marked as G5, G6, G7. IO then sealed them with the seal of 'RV' after preparing the pullanda of the same. IO then seized the said pullanda along with case FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 15 property vide seizure memo Ex.PW-2/B. IO then arrested accused Devender Aggarwal @ Sanju and conducted his personal search in his presence vide arrest and personal search memo Ex.PW-2/C and Ex.PW-2/D respectively. Subsequently, they along with case property returned to Delhi and went to the office of DIU / South East District. After getting the medical examination of accused Devender conducted, he was produced before the Court and he was sent to J/C. The case property was kept in the Malkhana of police station Govind Puri. He deposited the samples of the capsules to the FSL, Rohini, Delhi and handed over the receipt of the FSL to the IO. Thereafter on 21.10.2011, he along with Sub-Inspector Rajeev Vats went to the office of accused Bharat and took accused Bharat to the office of DIU / South East District where Sub-Inspector Rajeev Vats interrogated him. IO then arrested accused Bharat and conducted his personal search vide arrest memo and personal search memo Ex.PW4/A and Ex.PW4/B respectively. IO then seized the aforesaid pullanda. However, the accused was released on bail as he had FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 16 already obtained anticipatory bail in the present case. IO also obtained the specimen handwriting and signatures of accused Bharat in his presence vide Ex.PW4/C(colly) (running into 4 pages). IO then gave the specimen handwriting of the accused Bharat along with forwarding letter which is Ex.PW4/D to him for depositing the same at the FSL, Rohini. He then went to FSL, Rohini and deposited the same in the FSL. He handed over the receipt of the FSL to the IO. IO then recorded his statement in this regard. Identity of the accused Bharat was not disputed by his Counsel.
9. Assistant Sub-Inspector Manmohan Krishan was examined by the prosecution as PW5. He deposed that on 19.07.2011, he was posted as Head Constable at Police Station Chitranjan Park, DIU Cell, North-East District and on that day, he joined the investigation of the present case. During the proceedings, he along with Sub-Inspector Rajeev Vats and Sh. Jitender Singh (on behalf of the company) went to shop no. 1572/11, Chandni Chowk, FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 17 Bhagirath Palace, near Central Bank of India, New Delhi. After reaching there, he searched the shop in the presence of the said shop. However, they could not found anything at the said shop. IO prepared the search memo in his presence vide Ex.PW2/A. IO also recorded his statement to this effect.
10. Constable Om Prakash was examined by the prosecution as PW6. He deposed that on 14.02.2011, he was posted as Constable at DIU/ South-East District and on that day, he along with Sub-Inspector Rajeev went to the spot i.e. Gali No. 8, Govind Puri, Delhi where Sub- Inspector Rajeev handed over the rukka to him for getting the FIR registered. They then went to Police Station Govind Puri along with rukka and handed over the same to the then Duty Officer for registration of the FIR. After registration of the FIR, Duty Officer handed over the copy of FIR and original rukka to him. He then returned to the spot and handed over the same to Sub-Inspector Rajeev Vats as the investigation of the case was marked to him. He then left FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 18 the office and went to his office. His statement was recorded u/s 161 Cr.P.C. by the IO in this regard.
11. Inspector Rajeev Vats was examined by the prosecution as PW7. He deposed that on 14.02.2011, he was posted as Sub-Inspector in DIU, South East District and on that day, complainant R. Bishwas, came to the office of DIU and had given a complaint regarding sale of spurious ayurvedic capsules. He inquired the complainant qua his complaint and verified the fact of the complaint. He then prepared the rukka / tehrir Ex.PW-7/A and handed over the same to Constable Om Prakash for registration of the FIR. A raiding party was then constituted on the direction of senior officals, which included Head Constable Surender, Head Constable Rakam Singh, Constable Krishan and Constable Neenu along with the complainant and himself. An official from the Ayush Department was also called for accompanying the raiding party. He along with members of the raiding party along with the official from the Ayush Department went to the chemist shop namely FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 19 Amrit Pharma situated at 663/8, Govindpuri, South East District, Delhi. At the shop, he requested 4-5 persons to join the raiding party. However, none of them agreed and left the place without disclosing their personal details. The members of raiding party were then deployed at their positions near the aforesaid shop. He along with complainant and Head Constable Surender entered the shop. On pointing out of the complainant, total 475 packets of the Paurush capsules were found at the aforesaid shop. Out of the above 475 packets, 4 packets were taken as sample by the drug Inspector Sh. Vijay Kumar of the Ayush Department. He took 06 packets as sample from the remaining packets and prepared the pullanda of the said 06 packets in white cloth and sealed the same with seal 'RV'. Remaining packets were kept in four gunny bags and the same were sealed with his seal 'RV'. He then seized the samples which were taken by him as well as the remaining case property which was kept in the gunny bags vide seizure memo Ex.PW-1/B. He then arrested the accused Mukesh Kumar Gupta and conducted his personal search FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 20 vide arrest and personal search memo Ex.PW-3/A and Ex.PW-3/B respectively. They along with case property and accused returned to the office of DIU, South-East Ditsrict and he deposited the case property in the malkhana of Police Station Govindpuri. Accused was then interrogated at the office of DIU / South-East District and recorded his disclosure statement in the presence of Head Constable Surender, the same is Ex.PW-3/C. During the course of interrogation, accused Mukesh Kumar Gupta disclosed that he purchased the said "Paurush Jeevan capsules" from the shop of Bharat running in the name of Inder Medicos at Bhagirath Palace. A raid was conducted at the said place but it was found closed. Accused Mukesh Kumar Gupta also provided the mobile number of the accused Bharat. Accused Mukesh was then produced before the Court and was sent to Judicial Custody. The search of accused Bharat was continued he joined the investigation at the office of Market Association, at Bhagirath Palace. Search of the shop was then conducted in the presence of members of market association and the authorized representative of the FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 21 complainant. However, nothing was recovered from his shop vide search memo Ex.PW-2/A. During the course of interrogation, accused Bharat disclosed the source of 'Paurush Jeevan capsules' that he obtained the same from one Sanju having shop at Agra, Uttar Pradesh. As per his information, a raiding party was constituted which included representative of complainant namely Mr. Jitender, Constable Sanjay, other police officials and himself. They then went to the shop of the accused Devender Aggarwal @ Sanju Halwai at Agra, Uttar Pradesh. With the assistance of Local Police officials of police station Kotwali, they conducted the search at the shop of accused Devender Aggarwal. At the shop of accused Devender Aggarwal @ Sanju Halwai, around 400 packets of Paurush Jeevan capsules were recovered from the back side of his shop. He took 6 packets as sample out of aforesaid 400 packets and prepared the pullanda of the sample in a white cloth and sealed with the seal of 'RV'. The remaining packets were kept in three gunny bags and were sealed with the seal of 'RV'. He then prepared the seizure memo of the aforesaid FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 22 case property including the samples vide seizure memo Ex.PW-2/B. He then arrested the accused Devender Aggarwal @ Sanju Halwai and conducted his personal search vide arrest and personal search memo Ex.PW-2/C and Ex.PW-2/D already. He also recorded disclosure statement of accused Devender Aggarwal @ Sanju Halwai vide Ex.PW-7/B. They along with the accused and case property returned to Delhi in the office of DIU / South-East District. Case Property was deposited in the Malkhana of Police Station Govindpuri. Medical examination of the accused was then conducted and, thereafter, he was produced before the concerned Court. Subsequently, he was sent to Judicial custody. During the course of investigation on 24.08.2011, accused Mukesh Kumar Gupta handed over the 19 slips / papers {Ex.P1 (colly)} to him and he seized the same vide seizure memo Ex.PW-7/C in presence of Constable Sanjay. Efforts were then made for the arrest of accused Bharat. However, he obtained anticipatory bail. Accused Bharat was then taken to the office of DIU / South East District from his shop where he interrogated him. He FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 23 then formally arrested him and conducted his personal search in presence of Constable Sanjay vide arrest and personal search memo Ex.PW-4/A and Ex.PW-4/B respectively. He was then released on bail in pursuance of the anticipatory bail order. He also took the specimen signature / handwriting of the accused Bharat Kumar Ex.PW-4/C (colly 4 pages). He got the exhibits and the documents deposited in the FSL, Rohini through Constable Sanjay. He recorded the statement of the witnesses under Section 161 Cr.P.C. and placed them on record. During the course of investigation on 28.05.2011, complainant R. Bishwas, handed over two original packets of the Paurush Jeevan capsules to him and he seized them vide seizure memo Ex.PW-1/X. Sh. Jitender Singh also handed over two original packets of the Paurush Jeevan capsules which he seized vide seizure memo Ex.PW-2/X. The aforesaid original samples were seized in the presence of Constable Surender and Sanjay. After completion of the investigation, he prepared the charge-sheet and submitted the same before the Court. Identity of accused Bharat was not disputed by FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 24 his Ld. Counsel. I can also identify the case property if shown to me. He correctly identified the case property which was recovered from the possession of accused Mukesh Kumar Gupta. The said case property is marked as Mark-P2(colly). He correctly identified the case property which were handed over by the complainant to him. The said case property is marked as Mark-P3(colly). He also identified the case property which were recovered from the possession of accused Devender Aggarwal @ Sanju Halwai. The said case property is marked as Mark-P5(colly). He also identified the case property which were handed over by the complainant to him. The said case property is marked as Mark-P6(colly). He also identified the 9 cartons containing total 465 counterfeit packets of Paurush Jeevan Capsules recovered from the possession of accused Mukesh Kumar Gupta. The same case property is Ex.P1(colly). He also identified the case property which was recovered from the possession of accused Devender Kumar Aggarwal. MHCM brought the said the three gunny bags in unsealed condition having 8 cartons containing total 494 counterfeit packets of FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 25 Paurush Jeevan Capsules. They were correctly identified by the witness. The said case property is Ex.P4 (colly).
12. Accused Mukesh Kumar Gupta and Devender Aggarwal were convicted in plea bargaining proceedings concluded on 31.01.2017. Thus, the trial continued only against accused Bharat.
13. After completion of evidence, statement of accused Bharat was recorded u/s 313 Cr.P.C. The accused denied the prosecution case in its entirety and claimed innocence and submitted that he has been falsely implicated in the present case. Despite opportunity, no independent evidence was led by the accused in his defence and the matter was fixed for final arguments.
14. Detailed arguments have been heard from Ld. APP for State and Ld. Counsel for accused. Record perused carefully.
Relevant Law:-
FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 26
The settled propositions of criminal are :
(A) Prosecution is required to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence.
(B) In order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused.
(C) The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused.
(D) The accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
Law relating to requirement of independent witness
15. Sections 100 Clause 4 & 5 Cr.P.C: Requirement of FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 27 independent witnesses only when search is made on the person of the accused or at some place from where the incriminating articles is recovered and not when corroboration of happening of event in which accused is alleged to be involved is concerned.
Minor contradictions do not effect the credibility of the prosecution case.
16. It was held in the judgment titled as Ravi Kapoor V. State of Rajasthan, 2012 VIII AD (S.C) 73 that "Minor variations are bound to occur in the statements of the witnesses when their statements are recorded after a considerable lapse from the date of occurrence". Overall context of the case is to be seen.
17. It also the settled law laid down in Sardul Singh Vs. State of Haryana AIR 2002 SC 3462 that Courts have a duty to undertake a complete and comprehensive appreciation of all the vital features of the case and entire FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 28 evidence with reference to broad and reasonable probabilities of the case in their attempt to find out proof beyond reasonable doubt.
Law relating to Evidentary value of testimony of Police Officers:
18. The 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 good grounds; Karamjit Singh v. State (Delhi Administration), AIR 2003 SC 1311. Section 63 Copyright Act, 1957 provides as Under :-
Offence of infringement of copyright or other rights conferred by this Act.--Any person who knowingly infringes or abets the infringement of--
FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 29
(a) the copyright in a work, or
(b) any other right conferred by this Act, 1[except the right conferred by section 53A] 1[except the right conferred by section 53A]" 2[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 3[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.
Section 103 Trademarks Act provides as under :-
Penalty for applying false trade marks, trade descriptions, etc.--Any person who--
(a) falsifies any trade mark; or
(b) falsely applies to goods or services any trade mark; or
(c) makes, disposes of, or has in his possession, any die, block, machine, plate or other instrument for the purpose of falsifying or of being used for falsifying, a trade mark; or
(d) applies any false trade description to goods or services; or
(e) applies to any goods to which an indication of FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 30 the country or place in which they were made or produced or the name and address of the manufacturer or person for whom the goods are manufactured is required to be applied under section 139, a false indication of such country, place, name or address; or
(f) tampers with, alters or effaces an indication of origin which has been applied to any goods to which it is required to be applied under section 139; or
(g) causes any of the things above-mentioned in this section to be done, shall, unless he proves that he acted, without intent to defraud, 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 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.
Section 104 Trademarks Act provides as under :-
Penalty for selling goods or providing services to which false trade mark or false trade description is applied.--Any person who sells, lets for hire or exposes for sale, or hires or has in his possession for sale, goods or things, or provides or hires services, to which any false trade mark or false trade description is applied or which, being required under section 139 to have applied to them an indication of the country or place in which they were made or produced or the name and address of the manufacturer, or person for whom the goods are manufactured or services FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 31 provided, as the case may be, are without the indications so required, shall, unless he proves,--
(a) that, having taken all reasonable precautions against committing an offence against this section, he had at the time of commission of the alleged offence no reason to suspect the genuineness of the trade mark or trade description or that any offence had been committed in respect of the goods or services; or
(b) that, on demand by or on behalf of the prosecutor, he gave all the information in his power with respect to the person from whom he obtained such goods or things or services; or
(c) that otherwise he had acted innocently, 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 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.
Discussion on merits :
19. It is settled proposition of criminal law that prosecution is required to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 32 order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
20. PW2 Sh. Jitendra Kumar S/o Sh. Darshan Lal was a part of the raiding party and conducting raid proceedings at the shop of Inder Medicos, 1572/11, AC Market, near Central Bank, Bhagirath Palace, Chandni Chowk, Delhi which was owned by accused Bharat Kumar. He deposed that nothing incriminating was recovered from the said shop. IO then prepared non recovery memo at the said shop vide Ex.PW2/A. IO/Inspector Rajeev Vats was examined by FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 33 the prosecution as PW7. He deposed that search of accused Bharat was continued when he joined the investigation at the office of Market Association, at Bhagirath Palace. Search of the shop of accused Bharat was then conducted in the presence of members of market association and the authorized representative of the complainant. However, nothing was recovered from his shop vide search memo Ex.PW-2/A. Both these witnesses are material prosecution witnesses and have corroborated the fact that no recovery was made from the shop of accused Bharat. The only material available against the accused is his disclosure statement in pursuance of which recovery of incriminating material i.e. 'Paurush Jeevan Capsules' was made at Agra, Uttar Pradesh from the shop of co-accused Devender Aggarwal @ Sanju Halwai. The disclosure statement has no evidentiary value except to the extent when it leads to recovery. In the present case, accused Bharat allegedly disclosed that he had sourced the capsules from Devender Aggarwal who has a shop at Agra, Uttar Pradesh. Accused Bharat was not taken to Agra. No recovery was made in the FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 34 presence or at the pointing out of accused Bharat. At best, accused Bharat informed the IO of his awareness about the likelihood of presence of the incriminating material in the premise of co-accused Devender Aggarwal. No evidence has been led by the prosecution to show that accused Bharat had displayed the incriminating material for sale or possessed the same at any point of time. The disclosure statement of accused Bharat, in the absence of any other incriminating material, is not sufficient to convict the accused Bharat for any offence. In the present case, Prosecution has failed to prove the essential ingredients of section 63 Copyright Act and Section 103/104 Trademarks Act as discussed above. This hits the very roots of the prosecutions case. When the main pillars of the case of prosecution have fallen, it would be futile to look to the pillars which stand and try and ascertain whether the structure can be salvaged. Prosecution has further failed to show any proximity or chain of events to establish the fact that accused Bharat had displayed the incriminating material for sale or had sold the same to anyone. No FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 35 recovery was made from the shop of accused Bharat. On the basis of discrepancies and the contradictions as pointed out earlier, benefit of doubt goes in favour of accused. Accused Bharat is acquitted for the offence u/s 63 Copyright Act and Section 103/104 Trademarks Act. Ordered Accordingly. Announced in the open Court on 24.08.2023. Digitally signed by
SHIVANI SHIVANI CHAUHAN CHAUHAN Date: 2023.08.24 15:46:03 +0530 (Shivani Chauhan) Chief Metropolitan Magistrate South East, Saket Courts New Delhi FIR No: 45/2011 State Vs. Mukesh Kumar Gupta Page No. 36