Parakkat Naseer vs State Of Kerala

C.Pratheep Kumar, J.

This Criminal Revision has been preferred against the judgment dated 21.10.2015 in Crl.Appeal No.457/2011 on the file of the Court of Session, Thalassery, confirming the judgment of conviction and sentence passed against the appellant in C.C.444/2007 convicting him under Section 52A r/w 68A of the Copyright Act and sentencing him to undergo simple imprisonment for a period of one year and to pay fine of Rs.2,000/- and in default to undergo simple imprisonment for two months.

The prosecution case is that on 9.12.2006 at about 2.00 pm, when the SHO Thalassery police station searched the premises of the shop by name 'Chaplies Media Studio' situated at Logans road, Thalassery, belonging to the accused, six numbers of CDs of Malayalam movies were found displayed near the reception counter, which did not contain the details like the names of the manufacturer, copy right owner, declaration etc. as required under Section 52A of the Copyright Act and as such the accused alleged to have committed the offence punishable under Section 68A of the aforesaid Act.

The evidence in the case consists of the oral testimonies of PWs1 to 6 and Exts.P1 to P8. MO1 series CDs were also identified. After appreciating the available evidence, the Judicial First Class Magistrate, Thalassery found the accused guilty of the offence under Section 52A r/w 68A of the Copyright Act and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.2000/- and in default to undergo simple imprisonment for two months. In appeal, the Sessions Judge, Thalassery, confirmed the conviction and sentence passed by the trial court. It was in the above context that the accused preferred this revision raising various contentions.

Now the point that arise for consideration is the following :-

Whether the impugned judgment of conviction and sentence passed by the trial court and confirmed by the Sessions Judge, Thalassery is liable to be interfered with, in the light of the grounds raised in the revision petition ?

Heard both sides.

Adv. Neeraja Venugopal who appeared on behalf of the revision petitioner would argue that the evidence of PWs1 and 2, the searching officer as well as the police officer who accompanied the searching officer are contradictory to each other. Further, she would argue that the independent witnesses turned hostile to the prosecution. Therefore, according to her, the prosecution has not succeeded in proving the guilt of the accused beyond reasonable doubt. On the other hand, the learned Public Prosecutor Sri.Sanath P.Raj, would argue that there is nothing to disbelieve the evidence of the prosecution witnesses and as such he prayed for sustaining the conviction and sentence and for dismissing the revision petition.

One of the contentions taken by the learned counsel for the revision petitioner is that there is no evidence to prove that the accused is the owner of the shop 'Chaplies Media Studio'. It is true that the prosecution could not produce any documents to prove that the accused is the owner or the licensee of the shop 'Chaplies Media Studio', from where MO1 series of CDs were seized. However, PW1, the Sub Inspector of Thalassery police station would swear that on 9.12.2007 at about 1.45 pm on getting reliable information, he had prepared necessary search memo and sent the same to the court. Thereafter, he had proceeded to 'Chaplies Media Studio' and searched the above shop at about 2 p.m. and found that the accused was in charge of the above shop. It was found that six pairs of CDs of Malayalam movies were displayed at the counter of the above shop. On verification of the contents of the above CDs by using the CD player kept in the shop, he was convinced that they did not contain the date of manufacturing, name of the copy right holder etc. The movies were Junior Senior, Udayananu tharam, Fingerprint, Bhargavi nilayam, Amrutham and Annorikkal. He had arrested the accused and seized the above CDs as per Ext.P3 search list, which were identified by him as MO1 series and registered Ext.P5 FIR in that respect. He identified the accused as the person who was found in charge of the shop 'Chaplies Media Studio' and arrested by him.

PW2, who was the Head constable attached to the Thalassery police station deposed that he accompanied PW1 at the time of search and witnessed the seizure of MO1 series of CDs from the shop 'Chaplies Media Studio' which was managed by the accused. He also identified the accused as the person who was found in charge of the shop 'Chaplies Media Studio' and arrested by PW1.

It is true that PW3, the independent witness examined in this case turned hostile to the prosecution. However, he had admitted his signature in Ext.P1 arrest memo and Ext.P3 search list. According to hm, he has not seen the search and seizure.

Though PWs1 and 2 were official witnesses, their evidence could not be disbelieved for the mere reason that the independent witnesses turned hostile to the prosecution. As rightly observed by the first appellate court, the question to be considered is whether the evidence of PWs1 and 2 inspires confidence. Though PW1 and 2 were cross-examined in detail, nothing material could be brought out to discredit their testimonies.

It was argued by the learned counsel for the revision petitioner that while according to PW1, there is only one room in the shop 'Chaplies Media Studio', according to PW2 there are two rooms therein. On verification of the evidence of Pw1 and 2 it can be seen that, according to PW1, there is only one room in the shop, including the reception. Therefore, from the evidence of PW1 it is revealed that there is a reception counter also in addition to the main room. The evidence of PW2 that there are two rooms in the shop is to be appreciated in the light of the above evidence of PW1. Since according to PW1, one room includes the reception area, the answer given by PW2 that there  are  two  rooms  altogether  in  the  shop,  could  not  be  treated  as contradictory to the evidence of PW1.

With regard to the search and seizure of MO1 series of CDs from the shop 'Chaplies Media Studio', made by PW1, there is absolutely no omission or contradictions in the evidence of PWs 1 and 2. Therefore, I do not find any reason to disbelieve the evidence of PWs1 and 2. The evidence of PWs1 and 2 is substantiated by the contemporary documents prepared by PW1, namely, Ext.P1 arrest memo, Ext.P3 search list as well as Ext.P4 search memo. Exts.P1,P3 and P4 contemporary documents prepared immediately before and at the time of the search and seizure substantiates the evidence of PWs1 and 2 further, to prove that MO1 series of CDs were seized in the search conducted by PW1, the Sub Inspector of Thalassery police station on 9.12.2007 at 2.00 pm in the shop 'Chaplies Media Studio' managed by the accused.

With regard to the evidence of PWs1 and 2 that when the MO1 series of CDs were played, they did not contain the date of manufacturing, the name of the copy right holder of the movie etc. were not disputed by the accused. On the other hand, the contention taken by the revision petitioner is that there is no publication as required under Section 3 of the Copyright Act, so as to attract the offence under Section 52A r/w Section 68A of the Copyright Act.

Section 52A of the Copyright Act reads as follows :

52A. Particulars to be included in sound recording and video films.—

(1) No person shall publish a sound recording in respect of any work unless the following particulars are displayed on the sound recording and on any container thereof, namely:—

(a) the name and address of the person who has made the sound recording;

(b) the name and address of the owner of the copyright in such work; and

(c) the year of its first publication.

(2) No person shall publish a video film in respect of any work unless the following particulars are displayed in the video film, when exhibited, and on the video cassette or other container thereof, namely:—

(a) if such work is cinematograph film required to be certified for exhibition under the provisions of the Cinematograph Act, 1952 (37 of 1952), a copy of the certificate granted by the Board of Film Certification under section 5A of that Act in respect of such work;

(b) the name and address of the person who has made the video film and a declaration by him that he obtained the necessary licence or consent from the owner of the copyright in such work of making such video film; and

(c) the name and address of the owner for the copyright in such work.

Section 68A of the Copyright Act reads as follows :

68A. Penalty for contravention of section 52A.—

Any person who publishes a sound recording or a video film in contravention of the provisions of section 52A shall be punishable with imprisonment which may extend to three years and shall also be liable to fine.

Section 3 of the Copyright Act defines the term ‘publication’, in the following words :

"Publication" means making a work available to the public by issue of copies or by communicating the work to the public.

It is true that at the time of the search and seizure PWs1 and 2 could not witness any sale of CDs conducted by the accused. However, PW1 would swear that MO1 series of CDs were found displayed at the counter of the shop 'Chaplies Media Studio'. PW2 would also deposed that those CDs were displayed at the counter of the above shop. Since MO1 series CDs were found displayed at the counter of the above shop along with around 200 CDs, display of those CDs at the counter can only be for the purpose of making them available to the public.

At the time of arguments the learned counsel would submit that the CDs were kept for the purpose of mixing in the mixing unit and not for sale. However, the accused has not offered any explanation for possession of those CDs made in violation of Section 52A of the Copyright Act and for not using genuine and valid CDs, if it was kept for bona fide use. He also has not offered any explanation for displaying them at the counter of the shop. During examination of the accused under Section 313 Cr.P.C, he has not offered any explanation to justify his possession of MO1 series CDs. In the absence of any such explanation from the side of the accused and since it is true that those CDs did not contain the particulars required under Section 52A of the Copyright Act, the only presumption that can be arrived at is that those copies were prepared in violation of Section 52A of the Copyright Act for the purpose of making them available to the public or for communication of the work to the public and as such, it amounts to an offence punishable under Section 68A of the Copyright Act. In the above circumstance, the conviction entered by the trial court and confirmed by the first appellate court is liable to be sustained.

The punishment provided for the offence under Section 52A r/w 68A of the Copyright Act is imprisonment for a period of three years and also fine. The trial court has sentenced the accused to undergo simple imprisonment for one year and to pay a fine of Rs.2000/- and the same was confirmed by the first appellate court. However, considering the fact that only six pairs of such CDs were recovered in the search, I hold that the sentence imposed on the accused is excessive. In the above circumstance, considering the entire facts, I hold that simple imprisonment for a period of one month and a fine of Rs.2000/- and in default of payment of fine, to undergo simple imprisonment for a period of seven days will be an adequate sentence to meet the ends of justice. Points answered accordingly.

In the result, the Revision Petition is disposed of as follows :

While sustaining the conviction under Section 52A r/w 68A of the Copyright Act, the sentence is reduced to simple imprisonment for one month and to pay a fine of Rs.2000/- and in default of payment of fine, to undergo simple imprisonment for seven days.