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16. In Abdul Sathar v. Nodal Officer (supra), the Kerala High Court had observed that the language of the provisions of Section 63 of the Copyright Act and the language of categories in Part II of the First Schedule of the Cr.P.C. are clear. Since the offence under Section 63 of the Copyright Act is punishable for an imprisonment for a period of three years and with a fine, the same would fall within second category of offences which are punishable with imprisonment "for 3 years and upwards but not more than 7 years".

32. This brings us to the decision of this Court in State Government of NCT of Delhi v. Naresh Kumar Garg (supra). In that case, the Court had referred to various decisions, including the decision of the Andhra Pradesh High Court in Amarnath Vyas v. State of A.P. (supra) and the decision of the Supreme Court in Rajeev Chaudhary v. State (NCT) of Delhi (supra). However, the decision rests on the view stated by the Supreme Court in Avinash Bhosale (supra). The Court had held that the decision of the Supreme Court in Avinash Bhosale (supra) would fully apply to an offence under Section 63 of the Copyright Act as well and concluded that offence under Section 63 of the Copyright Act was non-cognizable.

33. In Avinash Bhosale (supra), the Supreme Court had referred to Section 135(1)(ii) of the Customs Act, 1962 (hereafter 'the Customs Act') and had observed that the same is a bailable offence. An offence under Section 135(1)(ii) of the Customs Act is punishable for a term which may extend to three years, or fine, or with both.

34. Ms Rao sought to draw a distinction between the punishment as prescribed under Section 63 of the Copyright Act and Section 135(1)(ii) of the Customs Act. It was contended that since the punishment under Section 63 of the Copyright Act also provided for a fine in addition to the punishment of imprisonment for a period that could extend to three years, the same should be considered as an offence falling within the classification of an offence punishable for a term of "three years and upwards but not more than seven years".

35. In State Govt. of NCT of Delhi v. Naresh Kumar Garg (supra), this Court had repelled the said contention. Clearly, no distinction between the offences under Section 135(1)(ii) of the Customs Act and Section 63 of the Copyright Act can be made for the purposes of classification under Part II of the First Schedule of the Cr.P.C. As discussed above, the criteria for placing any offence under the three categories would be the maximum sentence that can be awarded for that offence. If that principle is to be followed, then clearly both the offences - offence under Section 135(1)(ii) of the Customs Act and Section 63 of the Copyright Act - would fall within the second category of offences in Part II of Schedule I of the Cr.P.C.