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2020 Supreme(Ker) 603
IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.R. ANITHA, J.
Navas S/o Koyakutty – Petitioner
Versus
State of Kerala – Respondent
Crl. Rev. Pet. No. 986 of 2008
Decided On : 30-07-2020
Advocate Appeared:
For the Petitioners: Sri. M.T. Balan, Smt. B. Vijubala.
For the Respondent: Sri. M.S. Breez.
IMPORTANT POINT
The seizure of MO1 (series) by an Assistant Sub Inspector of Police who is lower in rank to the Sub Inspector violates, Section 64 of the Copyright Act since the seizure has been effected not by the empowered officer and it would in turn vitiate the entire trial.
Headnote:
Cinematographic Rule-II (amendment), 1995- Secs. 7(a);; The Copyright Act, 1957- Sec. 52A r/w 68A ;;IRWP Act- Sec. 6 r/w 4 –Indian Penal Code- Sec. 292(a) - Unauthorised officer conducting search and seizure cannot form basis for proceeding in respect of offences under Chapter 4 and it vitiates the trial.
Statement of facts:
Revision petitioner was the accused in C.C. No. 457/2003 on the file of the Judicial Magistrate of First Class-I, Sulthan Bathery. The prosecution case is that on 20.10.2003 at about 16.30 hours the accused was found to be keeping pirated VCDs of 17 Malayalam films, 10 Tamil films and 8 English films, at the video shop by name “Gottago DVDs and VCDs” functioning in building No. VI/1163 situated on the side of Pulpally-Bathery public road and thereby committed the offence punishable under Secs. 7(a) of the Cinematographic Rule-II (amendment), 1995, Sec. 52A r/w 68A of the Copyright Act, 1957 and Sec. 6 r/w 4 of IRWP Act and Sec. 292(a) IPC- Crl. Revision Petition has been filed against the conviction and sentence passed by the Additional Sessions Court (Ad hoc)-II Kalpetta in Crl. Appeal No. 229 of 2004 dated 31.1.2008.
Finding of the court:
in Expt.P2 search list turned hostile and stated that they have signed the mahazar at the police station etc, all those factors does not arise for consideration since the seizure of MO1 (series) has already been found as illegal since PW-1 the detecting officer was not an empowered officer as provided under the Act.
Result: Criminal revision petition allowed
ORDER :
1. This Crl. Revision Petition has been filed against the conviction and sentence passed by the Additional Sessions Court (Ad hoc)-II Kalpetta in Crl. Appeal No. 229 of 2004 dated 31.1.2008.
2. Revision petitioner was the accused in C.C. No. 457/2003 on the file of the Judicial Magistrate of First Class-I, Sulthan Bathery. The prosecution case is that on 20.10.2003 at about 16.30 hours the accused was found to be keeping pirated VCDs of 17 Malayalam films, 10 Tamil films and 8 English films, at the video shop by name “Gottago DVDs and VCDs” functioning in building No. VI/1163 situated on the side of Pulpally-Bathery public road and thereby committed the offence punishable under Secs. 7(a) of the Cinematographic Rule-II (amendment), 1995, Sec. 52A r/w 68A of the Copyright Act, 1957 and Sec. 6 r/w 4 of IRWP Act and Sec. 292(a) IPC.
3. On the side of the prosecution PW-1 to 12 were examined and Exts.P1 to P9 were marked. MO1 and 2 were also identified and marked. There was no defence evidence. The trial court found him guilty under Sec. 52(A) r/w 68(A) of Copyright Act 1957 and acquitted of charges under Sec. 7(a) of the Cinematographic Act and under Sec. 292(a) IPC and Sec. 6 r/w 4 of Indecent Representation of Woman (Prohibition) Act, 1986 under Section 248(1) Cr.P.C. Against which the Crl. Appeal was filed before the Sessions Court, Wayanad which was made over to Additional Sessions Judge Adhoc-II, Kalpetta. By the impugned judgment the learned sessions judge dismissed the appeal and confirmed the conviction and sentence. Aggrieved by the same the revision petitioner came up in revision before this court.
4. Notice was issued to the respondent and the respondent appeared through the learned public prosecutor, Sri. M.S. Breez. Lower Court records were called for and perused and both sides were heard.
5. Prosecution examined PW-1 the ASI, Sulthan Bathery who detected the crime through whom search list Ext.P2 and MO1 series the VCDs were marked. Exts.P1 is the search memorandum sent to court. Ext.P3 FIR was registered by him. PW-2 to 4 are the independent witnesses cited and all of them turned hostile. PW-5 is the witness in Ext.P4 mahazar. PW-6 is the secretary of panchayat who issued ownership certificate pertaining to the shop which is marked as Ext.P5. PW-7 is the constable who accompanied PW-1 in the search and seizure. PW-9 is the original tenant of the building who took the building on lease from PW-8 the owner of the building. As per Ext.P6 he let out the portion of the room to the accused for conducting the video shop. PW-10 is the producer of the one of the film. He deposed that he used to give permission to release the CD only after 1½ years of release of the film and he has not given the right to release the CD of the film produced by him. PW-11 subsequently entered in to agreement with PW-10 to release the CD of his film and copy of the agreement after comparing with the original is marked as Ext.P7. Subsequently he transferred that right to another concern, that agreement is marked Ext.P8. He also speaks that only after one and half years of release of movie the right to release the CD would be given and hence only on 5.1.2005 onwards right to take CD would come into force and any CD come before that would be fake CDs and he also identified MO2 as the original VCD of the movie produced by PW-10. PW-12 is the Sub Inspector who conducted the investigation, and filed the charge sheet against the accused.
6. The learned counsel for the revision petitioner mainly assailed the conviction and sentence on the ground of violation of Sec. 64 of the Copyright Act, 1957 (hereinafter referred to as ‘the Act’) since the seizure of the pirated copies have been effected by PW-1 who is not an authorized officer being an Assistant sub inspector of police. He would also challenge the search and seizure effected by PW-1.
7. The learned public prosecutor on the other hand would contend that the conviction of the accused is under Sec. 5
