The prosecution must establish evidence of copyright infringement, ownership of the copyright, and the content of the infringing material to convict under Section 63 of the Copyright Act, 1957.

JUDGMENT :

Ravindra Maithani, J.

The challenge in instant revision is made to the following:-

(i) Judgment and order dated 24.01.2011, passed in Criminal Case No. 536 of 2010, State Vs. Irfan and another, by the court of 4th Additional Civil Judge (Junior Division), Haridwar (“the case”). By it the revisionist has been convicted under Section 63 of the Copyright Act, 1957 (“the Act”) and sentenced to undergo simple imprisonment for a period of one year with a fine of Rs.50,000/-. In default of payment of fine to undergo imprisonment for a further period of six months. The revisionist has been acquitted of the charge under Section 68 A of the Act and;

(ii) Judgment and order dated 01.09.2011, passed in Criminal Appeal No. 35 of 2011, Irfan and another Vs. State, by the court of Additional Sessions Judge/2nd FTC, Haridwar. By which the impugned judgment and order passed in the case has been confirmed.

2. Facts necessary to appreciate the instant controversy, briefly stated, are as hereunder:- On 04.05.2007, Senior Sub-Inspector, Ashok Kumar Arora, PW1, was on patrolling alongwith co-police personnel, when they spotted that two persons were selling Compact Disc (“CD”). They had no licence. They were intercepted. They were the revisionists. According to the case, from the possession of the revisionist Irfan, 25 CDs and from the CDs of the revisionist Asif 20 CDs and 75 CDs, which were laid over the ground were recovered. After investigation, charge sheet under Section 63, 68A of the Act was submitted against the revisionists.

3. On 28.03.2008, charge under Sections 63 and 68A of the Act were framed. To which, the revisionists denied.

4. The prosecution in order to prove its case examined four witnesses, namely, PW1 Sub-Inspector, Ashok Kumar Arora, PW2 Neeraj Bhakuni, PW3 Naresh Singh and PW4 Sub Inspector, Kundan Singh.

5. The revisionists were examined under Section 313 of the Code of Criminal Procedure, 1973. According to them, they have been falsely implicated.

6. After hearing the parties, by the impugned judgment and order passed in the case, the revisionists have been convicted and sentenced as stated hereinbefore, which has been confirmed in the appeal. Hence, the revision.

7. Heard learned counsel for the parties and perused the record.

8. Learned counsel for the revisionist would argue that CDs were never run either by the witnesses or in the court. It is not even established as to what is in the CDs. It is also argued that the copy of the recovery memo was not even given to the revisionists. There is no independent witness.

9. On the other hand, learned State counsel would submit that pirated CDs were recovered from the revisionists. They had no license to sell it. Hence, offence is made out.

10. The revisionists have been charged under Section 68-A of the Act, which provides for punishment for infringement of the provisions of Section 52-A of the Act. Section 52-A of the Act reads as hereunder:-

“52-A. 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 a 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 5-A 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 has obtained the necessary licence or consent fro