Kerala High Court
Parakkat Naseer vs State Of Kerala on 13 September, 2024
Crl.R.P.584/2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
CRL.REV.PET NO. 584 OF 2016
CC NO.444 OF 2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
THALASSERY,
CRA NO.457 OF 2011 OF ADDITIONAL SESSIONS COURT - III,
THALASSERY
REVISION PETITIONER/APPELLANT/ACCUSED
PARAKKAT NASEER, S/O.UMMER, AGED 44 YEARS, SAINABA
MANZIL, M.M. ROAD, THALASSERY TALUK, KANNUR
DISTRICT.
BY ADVS.
SRI.C.P.PEETHAMBARAN
SMT.MINI.V.A.
ADV.NEERAJA VENUGOPAL
RESPONDENT/RESPONDENT/COMPLAINANT
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM
SRI.SANATH P.RAJ - PP
THIS CRIMINAL REVISION PETITION HAVING BEEN
FINALLY HEARD ON 10.9.2024, THE COURT ON 13.09.2024
DELIVERED THE FOLLOWING:
Crl.R.P.584/2016
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C.PRATHEEP KUMAR, J.
-----------------------------------
Crl.R.P.584 of 2016
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Dated : 13th September, 2024
ORDER
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.
2. 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
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of the Copyright Act and as such the accused alleged to have committed the
offence punishable under Section 68A of the aforesaid Act.
3. 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.
4. 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 ?
5. Heard both sides.
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6. 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.
7. 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
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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.
8. 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.
9. It is true that PW3, the independent witness examined in this case
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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.
10. 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.
11. 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
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there are two rooms altogether in the shop, could not be treated as
contradictory to the evidence of PW1.
12. 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.
13. 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
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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.
14. 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
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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.
15. 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.
16. 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.
17. 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,
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display of those CDs at the counter can only be for the purpose of making
them available to the public.
18. 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.
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19. 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.
20. 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.
Sd/- C.Pratheep Kumar, Judge
Mrcs/11.9.
