Delhi District Court
State vs . on 26 May, 2009
IN THE COURT OF SH. DIG VINAY SINGH, ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE03 (IPR), ROHINI, DELHI
In re:
STATE
VS.
AMIT KUMAR
FIR NO. 500/07
U/s. 63/68A Copyright Act & 292 IPC
P.S. Uttam Nagar (IPR)
DATE OF RESERVATION OF JUDGMENT: 05.05.2009
DATE OF PRONOUNCEMENT OF JUDGMENT: 05.05.2009
J U D G E M E N T
(a) The serial no. of the case : 03/03 (b) The date of commission of offence : 19.06.2007 (c) The name of complainant : SI Amit Issar
(d) The name, parentage, residence of accused : (1) Amit Kumar s/o Sh. Phool Chand Poddar r/o C31, Kiran Garden, Uttam Nagar, Delhi (2) Rajeev Kumar s/o Sh. Phool Chand@ Ful Chander r/o C31, Kiran Garden, Uttam Nagar, Delhi
(e) The offence complained of/ proved : U/s. 63/68A Copyright Act & 292 IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Convicted
(h) The date of such order : 05.05.2009.
(i) Brief statement of the reasons for the decision : JUDGMENT/State Vs. Amit Kumar/FIR NO. 500/07/U.S.63/68A CR Act & 292 IPC/Convicted/05.05.2009/Page 1 of 18
1. The two accused Amit Kumar and Rajeev Kumar were sent up for trial in this case for the offences u/s 63/68A Copyright Act, 1957 as also for the offence u/s 292 IPC. Both the accused are real brothers.
2. It is the case of prosecution that on 19062007 SI Amit Issar, who was posted in IPR Section, EOW, Crime Branch, New Delhi, received a secret information that in shop no. 8A/155, Gulab Bagh, Uttam Nagar, Delhi infringement of VCDs/CDs and DVDs were being committed. Accordingly, a raiding party comprising of said SI, HC Devender Kumar, HC Leela Dhar, was organized under the supervision of Inspector Raj Kishore and a raid was conducted at the shop where accused Amit was found physically present sitting on the sale counter of the shop. In the shop various CDs/DVDs of English/Hindi movies and songs and pornographic DVD/VCD were displayed for sale/letting/hire and on checking a total of 776 DVDs of various Hindi movies; 411 DVDs of various English movies; 1220 VCDs of various Hindi films and songs; 900 MP3 audio CDs and 174 pornographic DVDs/VCDs were recovered. These articles were not containing mandatory particulars as required u/s 52A of Copyright Act. Accordingly, case was registered and accused Amit was arrested. During investigation, it was learnt that accused Rajeev, brother of accused Amit, had obtained this premises on rent where the shop in question was being run and infringement was committed by both of them.
3. Accordingly, charges u/s 63/68A Copyright Act, 1957 and section 292 IPC were framed against both the accused to which both accused claimed trial.
4. To prove its case, prosecution examined six witnesses namely PW1 Inspector Amit Issar, PW2 HC Ranbir Singh, PW3 Vivek Kumar, PW4 HC Leela Dhar, PW5 Devender Kapoor and PW6 SI Suresh Kumar.
5. The defence of the accused was of total denial and, when incriminating evidence was put to both the accused u/s 313/281 Cr. P. C., they denied that any such recovery was effected from them. Both the accused claimed that they have been JUDGMENT/State Vs. Amit Kumar/FIR NO. 500/07/U.S.63/68A CR Act & 292 IPC/Convicted/05.05.2009/Page 2 of 18 falsely implicated and the case property was planted upon them as on 19062007 the police party brought the case property from an adjacent shop and planted the same on them. Both accused claimed that in the shop in question they deal in sale/purchase of mobile and recharge coupons etc but not in CDs/VCDs. Both of them admitted that shop in question was taken on rent from its landlord and on the date of alleged recovery the shop was under the tenancy of accused Rajeev. Accused did not opt to lead any defence evidence in their favour.
6. I have heard Ld. APP for State and counsel for two accused.
7. Ld. Counsel for two accused argued that case of the prosecution is not proved since there is no complainant in this case and the case was registered on the complaint of a police official on the basis of secret information only. It is also argued that no decoy customer was sent to the shop in order to find out whether DVDs etc were meant for sale or not , nor there is evidence that any customer was present purchasing the articles. It is also argued that in the rent receipt, allegedly proved on record, no shop no. is mentioned; Inspector Raj Kishore has not been examined; no public witness was joined in the raid and even the alleged Panwala, whose shop was adjacent, was not joined ; the VCDs/DVDs were sent to FSL; no DD entry of departure/arrival of police is proved; scooter number/vehicle number on which the raiding party traveled to the spot, is not proved; contents of CDs were not checked by the investigating agency. It is lastly argued that there are contradictions in the testimony of witnesses regarding time of preparation of rukka; sending the rukka; arrival of IO etc. It is thus argued that both accused deserve acquittal as the case of the prosecution is not proved.
8. PW2 HC Ranbir Singh was a formal witness who registered FIR on 1906 2007 and his testimony is not of much importance to the case of prosecution. PW3 Vivek Kumar was the landlord, who deposed that he is the owner of the shop in question and he had let out the shop to accused Rajeev Kumar from April 2007 JUDGMENT/State Vs. Amit Kumar/FIR NO. 500/07/U.S.63/68A CR Act & 292 IPC/Convicted/05.05.2009/Page 3 of 18 onwards and accused Rajeev Kumar took the shop for running a music shop. Emphasis is supplied on this part of the testimony of this witness who specifically deposed that shop in question was taken on rent by accused Rajeev for a music shop and not for mobile/recharge coupons etc. This witness also deposed that he gave rent receipt and rent agreement to the police which is Ex. PW3/A and mark B, C and D. Nothing material could be brought on record from the crossexamination of this witness. All that was suggested to this witness by the accused is, that in the rent agreement shop no. 8A is not mentioned nor it was mentioned in the rent receipt. Besides this, not even a single suggestion was given to this witness that shop was not obtained for music shop or that shop was obtained for mobile sale/purchase or repair. It was not suggested to the witness that on the date of alleged recovery, the accused were not running the music shop or were running shop of mobile sale/purchase. This fact coupled with the admission of two accused in their statement that shop in question was obtained on tenancy by accused Rajeev clearly proves that on 19062007 the shop was in occupation of accused Rajeev as a tenant and mere contradiction in the number of shop in the testimony of witness or absence of the same in the rent agreement/rent receipt does not help the accused at all.
9. PW1 Inspector Amit Issar and PW4 HC Leela Dhar both are recovery witnesses who deposed that on 19062007 a raid was conducted in the shop in question where accused Amit was present and in the shop DVDs/VCDs of English/Hindi movies; Hindi songs MP3 audio CDs, DVDs/VCDs of pornographic films were displayed and recovered. It is also deposed that those articles were not containing mandatory particulars as required u/s 52A of Copyright Act, 1957. The case property was identified by both the witnesses in the court very clearly as the same which was recovered on that day from the possession of accused Amit, who was physically present in the shop. Accused Amit was also specifically identified by both of them in the court as the person who was present inside the shop. The quantity JUDGMENT/State Vs. Amit Kumar/FIR NO. 500/07/U.S.63/68A CR Act & 292 IPC/Convicted/05.05.2009/Page 4 of 18 of recovery was also correctly specified by both the witnesses and the case property was proved as Ex. P1 to P6. Nothing material could be brought out on record in the crossexamination of these witnesses also except some minor contradictions regarding the vehicle used for travel to the place of recovery; time of sending of rukka, time of arrival of second IO etc. But all those contradictions are very trivial in nature and does not affect the trustworthiness of any of these two witnesses.
10. PW6 SI Suresh Kumar was the Second IO who reached the place of occurrence when he got information from PW1 and he deposed that when he reached the place of recovery, the case property was already sealed in six gunny bags and accused Amit Kumar along with case property was handed over to him with a carbon copy of rukka and FIR. Thereafter, he prepared site plan Ex. PW6/A and he seized the rent documents from the owner of premises and later on accused Rajeev was arrested. The witness proved the rukka, seizure memo, arrest memo and personal search memo etc. In the crossexamination of PW6, nothing material could be brought out on record except some minor contradictions as mentioned above.
11. PW5 Devender Kapoor proved the assignment deeds of movies 'Shootout at Lokhandwala' and 'Sarhad Paar' as Ex. PW5/A and B. It is the case of prosecution that from the recovered DVDs/VCDs, infringed DVDs/VCDs of these movies were also recovered from the two accused. Perusal of the assignment deeds Ex. PW5/A and B show that producer of these movies have assigned the copyright of these cinematographic films in favour of M/s Super Cassettes Industries Ltd.
12. The arguments of Ld. Counsel for accused that there was no complainant in the matter and therefore the case could not have been investigated is without any force. The offences u/s 63 and 68A Copyright Act are both cognizable offences and, in a cognizable offence there is no legal requirement that police cannot investigate without proper complaint or without orders of the court. A police officer who receives information regarding commission of a cognizable offence can investigate the matter JUDGMENT/State Vs. Amit Kumar/FIR NO. 500/07/U.S.63/68A CR Act & 292 IPC/Convicted/05.05.2009/Page 5 of 18 directly. In the present case, the secret information which was received by police was regarding infringement of cinematographic films and audio CDs and information was not regarding infringement of any particular copyright owner. In such circumstances, this argument is absolutely without any force.
13. The next contention raised is that there is no decoy customer sent to the shop or that there was no customer present in the shop therefore there is no material with the prosecution that articles were meant for sale, is also without any force. Section 51 of the Copyright Act, 1957 defines as to what is infringement and when copyright is deemed to be infringed. It provides that copyright in a work shall be deemed to be infringed when any person makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire any infringing copies of the work, copyright shall be deemed to be infringed. Therefore under clause (b) of section 51 of Copyright Act, 1957, mere displaying by way of trade or offering for sale or hiring infringing copies is deemed to be infringement. In the present case, it is specifically deposed by the prosecution witnesses that DVDs/VCDs were displayed for sale in the shop. Even otherwise, there is no justification by the accused regarding possession of such huge quantity of DVDs/VCDs of various English/Hindi movies and songs. Recovery of such huge quantity of these articles gives rise to a legitimate presumption that it were meant for sale/ hire and nothing else. In all probability, these articles were meant for sale/hire only and nothing else. Therefore there is deemed infringement u/s 51 of the Act.
14. It is next argued that Inspector Raj Kishore is not examined in this case. This arguments is also without force as it is not the quantity of evidence which matters in a criminal case but it is the quality of evidence which matters. What is to be seen is whether the witness examined by prosecution were trustworthy and not the number of witnesses are to be counted.
15. Section 134 of the Indian Evidence Act clearly provides that no particular number of witnesses in any case be required for the proof of any fact. This shows that JUDGMENT/State Vs. Amit Kumar/FIR NO. 500/07/U.S.63/68A CR Act & 292 IPC/Convicted/05.05.2009/Page 6 of 18 conviction can be based on solitary witness which is trust worthy and what matters is quality.
In AIR 2005 SUPREME COURT 2503 Seeman alias Veeranam, Vs. State by Inspector of Police, It was observed in Para 4 "It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the court while scrutinizing the evidence of the interested sole witness. The prosecution's nonproduction of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement."
Similarly in the case of State of U.P. vs. Anil Singh AIR 1988 Sc 1998 it was held that in some cases the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out to the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of JUDGMENT/State Vs. Amit Kumar/FIR NO. 500/07/U.S.63/68A CR Act & 292 IPC/Convicted/05.05.2009/Page 7 of 18 corroboration by independent witnesses if the case made out is otherwise true and acceptable.
In the case of Dr Krishna Pal and another vs. State of U. P.1996 (7) SCC 194 non examination of eyewitnesses was held to be not a ground to discard the convincing and reliable evidence produced in the case.
16. It is next argued that no public witness has been joined. It is a matter of common knowledge that public persons are reluctant to become witnesses of criminal trial. It has been held in a number of judgments by Hon'ble Supreme court and High Courts that merely because public witnesses are not joined in a case, prosecution case cannot be thrown out.
17. Hon'ble Supreme court in the case Ambika Prasad & anr vs. State 2002 (2) CRIMES 63 (SC) held that it is known fact that independent persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses of the close relative of the deceased are under constant threat and they dare not depose the truth before the Court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Other reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the Court. In any case if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed at and it cannot be a ground for rejecting the evidence of injured witnesses. It was also held that non examination of investigating officer of the case is no ground to discard the evidence of eye witnesses. Similarly in the case of State of U.P. vs. Anil Singh AIR 1988 Sc 1998 ; Dr Krishna Pal and another vs. State of U. P.1996 (7) SCC 194 and in the case of Appabhai Vs. State Of Gujrat AIR 1988 SC 696 it was held that These days people in the vicinity where the incident took place avoid to come forward to give evidence and civilized people are in JUDGMENT/State Vs. Amit Kumar/FIR NO. 500/07/U.S.63/68A CR Act & 292 IPC/Convicted/05.05.2009/Page 8 of 18 sensitive when crime is committed even in their presence and they withdraw both from the victim and vigilante.
18. Law is not that testimony of police officers is absolutely untrustworthy or that it can never be acted upon. Rather, the law is that even the testimony of a police officer can be acted upon and a conviction can be based on such testimony if the testimony is unimpeached and found to be trustworthy.
19. Hon'ble Supreme Court in Anil @ Andya Sadashiv Nandorkar Vs. State J. T. 1996 (3) SC 120 has held that testimony of the police officials cannot be discredited merely because they are police officials if otherwise, their testimony is found to be cogent, trustworthy and reliable. Further, Hon'ble Supreme Court in Akmal Ahmad Vs. State of Delhi J. T 1999 (2) SC 388 held that ''it is now well settled that evidence of search and seizure made by police will not become vitiated only for the reasons that the evidence is not supported by independent witnesses.''
20. In the present case, I have already mentioned above that there is nothing on record to suggest untrustworthiness of the police official witnesses. Although the two accused persons in their statements claimed that they are innocent and that case property was planted upon them by the police after bringing the same from an adjacent shop but the defence taken by the two accused does not inspire any confidence whatsoever. It would be anybody guess as to why police officials would do this. If the accused want this court to believe that they have been implicated falsely, the least which was expected from the accused was to at least come out as to what could have been the motive for the police for their false implication and as to what was that reason for which police official could have done so. But no such reason is even mentioned. The accused cannot expect this court to believe their version by simple bare allegation that they have been falsely implicated. At least some reason should have been put forth by the accused to suggest as to what could have been motive of the police in implicating them. In the absence of this, I do not find any reason to throw JUDGMENT/State Vs. Amit Kumar/FIR NO. 500/07/U.S.63/68A CR Act & 292 IPC/Convicted/05.05.2009/Page 9 of 18 out the testimony of police officials.
21. The other contention raised by counsel for accused is that there are contradictions in the testimony of witnesses regarding time of preparation of rukka, sending of rukka, arrival of Second IO etc and also nonmentioning of the vehicle number. In my considered view, again these contradictions are very trivial in nature and does not affect merits of the case at all. Such trivial contradictions are bound to occur in the testimony of witnesses. In the present case, the evidence is recorded after about 2 years from the date of recovery and such minor contradictions were bound to occur. These minor contradictions cannot be given any undue weightage.
22. In my considered view none of the contradictions as appearing in the statement of the witnesses and as pointed out are material enough to create doubt about the truthfulness of the case of the prosecution. It may be mentioned here that the accused took up a defence that he has been falsely implicated in the present case but no cogent reason for false implication has been shown. Whenever an accused takes up a plea that he has been falsely implicated the first question which arises is as to what was the ground for false implication. This question in the present case has not been answered. It may be mentioned that for any false implication there has to be some or the other motive which is in the best knowledge of the accused and the onus to tell the motive of false implication is on the accused which could not be discharged in the present case. Simply by alleging that we have been falsely implicated falsely implicated would not be sufficient to create doubt about the case of the prosecution. The accused does not have any kind of enmity with any of the prosecution witnesses therefore there is no question of his false implication. The nature of contradictions pointed out in the present case are minor and are infact simple errors of observation which occurs in human nature. The testimony of the witnesses are otherwise corroborating each other in all necessary material particulars. Simply because there occurs some minor variations in their powers of observation and retention would not JUDGMENT/State Vs. Amit Kumar/FIR NO. 500/07/U.S.63/68A CR Act & 292 IPC/Convicted/05.05.2009/Page 10 of 18 make the case of the prosecution unbelievable.
Yadav & ors. Vs State of Bihar (2001) 8 SCC 86 it
In the case of Sukhdev
was held by Hon Supreme Court that that once the trustworthiness of evidence stated in a case stands satisfied, the court should not hesitate in accepting the same . If the evidence in its entirety appears to be trustworthy, it cannot be discarded merely on the ground of presence of minor variations in evidence. Relying upon an earlier decision in Leela Ram vs. State of Haryana (1999) 9 SCC 525 it was observed that there are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reason therefore should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence.
(1999) 8 SCC 649 it Relying upon an earlier decision in Ramani vs. State of M.P. was also observed that when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally nondiscrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident either as between the evidence of two witnesses or as between two statements of the same witnesses is an unrealistic approach for judicial scrutiny. It was also held that it is a common practice in trial courts to make out contradictions JUDGMENT/State Vs. Amit Kumar/FIR NO. 500/07/U.S.63/68A CR Act & 292 IPC/Convicted/05.05.2009/Page 11 of 18 from the previous statement of a witness for confronting him during cross examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt section 155 of the Evidence Act provides scope for impeachment the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness.
In Krishna Mochi and Others Vs. State of Bihar, (2002) 6 SCC 81, it was held that it is the quality of evidence that matters and not the number of witnesses. It was further held that credible evidence of even a solitary witness can form the basis of conviction. That contradictions, inconsistencies, exaggerations or embellishments are inevitable. It was further held that a discrepancy existing in a prosecution case should not weigh with the Court so long it does not materially affect the case. It was further held that the duty of the Court is not only to see that no innocent man should be punished but also to ensure that no person committing an offence should get scot free. It was also held that even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove the guilt of an accused, notwithstanding acquittal of number of other coaccused persons, his conviction could be maintained.
It is now well settled that the principal 'falsus in uno falsus in omnibus' does not apply to criminal trials and it is the duty of the court to disengage the truth from the falsehood, to sift the grain from the chaff. Instead of rejecting the evidence in its entirety merely on the basis of few infirmities and merely because in one respect it is unsafe to rely on the testimony of a witness it does not necessarily follow as a matter of law that it must be discarded in all other respects also. A person, whose evidence is false or evasive in part, of the case, may be perfectly reliable in another part. Reliance is placed upon the case of Kesho Ram vs. State AIR 1978 Supreme Court 1096 ; Sukhdev Yadav & ors. Vs. State of Bihar (2001) 8 SCC86.
JUDGMENT/State Vs. Amit Kumar/FIR NO. 500/07/U.S.63/68A CR Act & 292 IPC/Convicted/05.05.2009/Page 12 of 18 In the case of Shakila Abdul Gafar khan vs. Vasant Raghunath Dhoble 2003 (3) JCC 1586 it was held the doctrine of falsus in uno falsus in omnibus is a dangerous one especially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking the untruth in some aspect, it is to be feared that administration of criminal Justice would, come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it as to be apprised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing Reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence is to be sifted with care. The aforesaid term is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishment. It was also held that normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorised. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. To the same affect our judgments in the case of State of Rajasthan vs. Kalki and another AIR 1981 SC 1390; Krishna Mochi and others vs. State of Bihar JT 2002 (4) SC 186; Gangadhar Bahera and others vs. State of Orissa 2002 (7) Supreme 276; Rizan and another vs. State of Chhattisgarh 2003 (2) SCC 661.
23. The next contention is that DD entry of the police officials regarding their JUDGMENT/State Vs. Amit Kumar/FIR NO. 500/07/U.S.63/68A CR Act & 292 IPC/Convicted/05.05.2009/Page 13 of 18 departure/arrival is not proved is also without any force. In the statement of accused, there is admission of two accused that police officials came to their shop on 1609 2007. The defence of the accused is of false implication by the police by planting the case property by bringing it from another shop and not that the police officials never came to their shop. Mere nonproving the DD entry does not entitle the two accused to claim that case of prosecution should be thrown out.
24. The last contention that case property was not sent to FSL for examination is also without force. The case property was proved in the court physically. The case property was not containing mandatory particulars as required u/s 52A of Copyright Act, 1057. Some of the DVDs/VCDs were played and they were found to be of movies, songs and pornographic video clippings. Section 52A Copyright Act, 1957 provides that no person shall publish a sound recording unless it contains the particulars viz. name and address of person who has made the sound recording; name and address of the owner of the copyright in such work; and year of its first publication. Similarly, subsection (2) of section 52A provides that no person shall publish a video film in respect of any work without particulars viz. certificate for exhibition under Cinematograph Act 1952; certificate granted by Board of Film Certification; name and address of the person who has made the video film and declaration that he has obtained necessary license or consent from the owner of the copyright in such work for making said video film and name and address of the owner of copyright in such work. The recovered articles were not containing any of these particulars therefore Section 52A Copyright Act is breached which is punishable u/s 68A Copyright Act, 1957.
25. It is already mentioned above that there is an infringement of copyright committed by the accused u/s 51 of the Act which is punishable u/s 63 of the Act. It may be mentioned here that in the case of State of Andhra Pradesh Vs. Nagoti Venkataramana IV(1996) CCR 42 (SC) the following observations were made by JUDGMENT/State Vs. Amit Kumar/FIR NO. 500/07/U.S.63/68A CR Act & 292 IPC/Convicted/05.05.2009/Page 14 of 18 Hon'ble Supreme Court: ownership by the author of the pirated articles are not required for the purpose of trial for offence u/s 68A Copyright Act.
26. The prosecution has proved few copyright of few movies and the infringed copies of the same were recovered from the possession of the accused without any authority or assignment of the copyright in favour of the two accused. It may also be mentioned that registration of copyright is not mandatory under the provisions of the said Act..
27. Lastly, there are DVDs/VCDs recovered from the possession of accused which were containing obscene material i.e. nude sexual video clippings which are obscene in nature and therefore section 292 of IPC also clearly gets attracted since the accused had publicly exhibited/displayed for sale/hire these DVDs/VCDs containing obscene material.
28. Accused Amit was physically present at the shop when recovery was effected and he was sitting at the sale counter. Accused Rajeev is the person who was occupying the shop on tenancy and both the brothers were running the shop. Accordingly, both the accused are guilty for the offence u/s 63 and 68A of Copyright Act, 1957 as well as Section 292 IPC. Both the accused are convicted accordingly. ANNOUNCED IN OPEN COURT ON 05th May 2009 (DIGVINAY SINGH) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE03 IPR, ROHINI, DELHI JUDGMENT/State Vs. Amit Kumar/FIR NO. 500/07/U.S.63/68A CR Act & 292 IPC/Convicted/05.05.2009/Page 15 of 18 IN THE COURT OF SH. DIG VINAY SINGH, ADDITIONAL CHIEF METROPOLITAN MAGISTRATE03 (IPR), ROHINI, DELHI In re:
STATE VS.
AMIT KUMAR & Anr
FIR NO. 500/07
U/s. 63/68A Copyright Act & 292 IPC
P.S. Uttam Nagar (IPR)
ORDER ON SENTENCE
Pre: Ld. Sub. APP for State Ms. Suchitra Singh Chauhan.
Both convicts Amit Kumar and Rajeev Kumar both s/o Phool Chand are present on bail with counsel Sh. N. S. Malik, Adv.
Both convicts have been found and held guilty for the offence u/s 63/68A Copyright Act, 1957 and u/s 292 IPC vide judgement of this Court dated 05052009.
Arguments on sentence heard. Ld. Counsel for convicts requests for a lenient view on the ground that both convicts are of young age and convict Amit is also a student and they have family to support. It is also stated that there is no previous involvement of the two convicts in any other offence whatsoever.
Section 63 of Copyright Act, 1957 provides minimum sentence of a term of six months and minimum fine of Rs. 50,000/ and the maximum sentence provided is upto three years with maximum fine of Rs. Two lakhs in a case where the offender is first time offender. Hon'ble Delhi High Court in the case of G. Buttan Vs. State & Anr 2007 (34) PTC 636 (Delhi) observed in paragraph no. 9 as follows:
"More than two decades have gone by when the amendment in the penal provisions was brought about. There is a sea change in crime situation since then. As JUDGMENT/State Vs. Amit Kumar/FIR NO. 500/07/U.S.63/68A CR Act & 292 IPC/Convicted/05.05.2009/Page 16 of 18 the experience would show the extent of punishment provided by the Amendment Act 65 of 1984 has failed to yield desired result. The view of piracy instead of showing any decline keeps registering a spiralling rise in crime graph. Such a trend is indicative of a crying need for a much more stringent and deterrent legislative measures. Viewed in this perspective extent of punishment provided for the offenes which the petitioner is alleged to have committed cannot be the only indicator factor to find the gravity of the offences complained of. Such like acts of piracy as alleged in the case on hand, if not effectively curbed rather allowed to thrive, will pose a serious threat to very survival of the whole film industry apart from having a cascading effect on revenue thereby impacting the national interest in the ultimate. Such acts of piracy constitute a class apart and must be distinguished from acts of piracy in relation to isolation individual ownership in copyright."
In those cases in which minimum sentence is provided, this Court cannot award a lesser sentence than the minimum sentence provided by the statute. Keeping in view the young age of two convicts with no previous involvement and the fact that they are bred winners of the family, in my considered view a lenient view be taken but it cannot be lesser than the minimum sentence provided by the statute. In such circumstance, both convicts are sentenced to simple imprisonment for a period of six months each and fine of Rs. 50,000/ each for the offence u/s 63 Copyright Act, 1957. In default of payment of fine, further SI for 45 days each.
For the offence u/s 68A Copyright Act, 1957, in view of the facts and circumstances, a sentence of simple imprisonment of two months and fine of Rs. 5,000/ each is imposed. In default of payment of fine, further SI for 15 days each.
U/s 292 IPC both convicts are sentenced to simple imprisonment for a period of one month and fine of Rs. 1,000/ each. In default of payment of fine, further SI for 7 days each. All the three sentences qua both the convicts shall run concurrently. Earlier Bail bonds/Surety Bonds of both the convicts are cancelled. Both convicts are ordered to be JUDGMENT/State Vs. Amit Kumar/FIR NO. 500/07/U.S.63/68A CR Act & 292 IPC/Convicted/05.05.2009/Page 17 of 18 taken into Judicial custody to undergo the sentence as above. Copy of order on sentence and judgment be supplied to both the convicts free of cost. Benefit u/s 428 Cr. P. C. be given to both the convicts. File be consigned to Record Room.
At this stage, application u/s 389 Cr. P. C. is filed for suspension of sentence and release of accused on bail till filing of appeal. Heard.
Both convicts were on bail throughout trial and they did not misuse the liberty of bail. Both convicts are admitted to bail till filing of appeal or till expiry of 30 days from the date of this order whichever expires earlier on furnishing Personal Bond and Surety Bond in the sum of Rs. 10,000/ with one surety each in the like amount. Bonds be put up on 25062009 at 2 pm and file be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 26th May 2009 (DIG VINAY SINGH) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE03 (IPR) ROHINI, DELHI JUDGMENT/State Vs. Amit Kumar/FIR NO. 500/07/U.S.63/68A CR Act & 292 IPC/Convicted/05.05.2009/Page 18 of 18