BIRENDRA BAHADUR PANDEY Vs. GRAMOPHONE CO OF INDIA LTD
LAWS(CAL)-1983-2-21
HIGH COURT OF CALCUTTA
Decided on February 10,1983

BIRENDRA BAHADUR PANDEY Appellant
VERSUS
GRAMOPHONE CO. OF INDIA LTD. Respondents

JUDGEMENT

Sabyasachi Mukharji, J. - (1.) This is an appeal from a judgment delivered and order passed by the learned trial Judge on 14-10-1982. The petitioner before the learned trial Judge and the main respondent in this appeal is the Gramophone Co. of India Ltd. which carries on the business of manufacture and sale of records and/or recordings and/or cassettes etc. Such recordings are carried out by the petitioner under the agreements with various composer artists and other performers. Under such agreements the writ petitioner became the owner, according to the writ petitioner, of the original plates and, in any event, the first owner of the copyright of the said records and musical compositions. In the circumstances, the writ petitioner complained that it had the exclusive right to reproduce and manufacture records and/or cassettes from the original plates and no other person has or had any other copyright or other right with regard thereto and the petitioner was the first owner of the copyright in respect of the said records and/or cassettes and/or recordings. It is further the case of the petitioner that it came to learn from the Customs Authority that a consignment of pre-recorded cassettes sent by respondent 4, Universe Overseas Private Ltd., from Singapore for respondent 5 Messrs. Sungava Enterprises Concern, Kathmandu, Nepal, which is the appellant before us, had arrived at the port of Calcutta by S. S. Virgo. The petitioner further alleged that it came to learn that a large part of the consignment consisted of pirated cassettes, i.e., cassettes manufactured from recordings over which the petitioner had the sole copyright. The petitioner accordingly applied to the Registrar of Copyright. New Delhi, respondent 6, according to the petitioner, in accordance with the provisions of Section 53, Copyright Act, 1957. The petitioner thereafter filed an application under Article 226 of the Constitution in which the petitioner prayed for an appropriate writ commanding respondent 6, namely, the Registrar of Copyright, to dispose of the petitioner's application under Section 53, Copyright Act, and in accordance with law. The application contained, inter alia, the following prayers : "(a) A writ of and/or an order and/or a direction in the nature of mandamus commanding respondent 6 to forthwith issue and pass an order that the said pre-recorded cassettes now lying at the Port of Calcutta infringed the copyright of your petitioner in the various records and/or recordings and that the same shall not be imported. (b) A writ of and/or an order and/or a direction in the nature of mandamus commanding and directing respondents 1 and 2 to forthwith take appropriate steps under the Customs Act 1962 to inter alia confiscate the said cassettes and deliver the same to your petitioner. (c) A writ of and/or an order and/or a direction in the nature of mandamus commanding and directing respondents 1 and 2 to forbear and refrain from releasing the said cassettes or any of them from their custody, care and control, (d) A writ of and/or an order and/or a direction in the nature of prohibition prohibiting and restraining respondents 1 and 2 and each one of them from releasing the said cassettes or any of them from their custody, care and control." We may mention in this connection that respondents 1 and 2 in the writ petition were the Collector of Customs and the Assistant Collector of Customs. The other prayers are not relevant for the present purpose. The learned trial Judge issued a rule nisi and certain interim order. Thereafter an application was made for vacating the interim order by the present appellant before us. The application made by the present appellant before us was treated as the affidavit-in-opposition to the main rule and after giving opportunity for filing of the affidavit-in-reply the order impugned was passed on 14-10-1982. This is an appeal from the said order.
(2.) On behalf of the appellant it was urged that the reliefs sought for by the petitioner before the learned trial judge could not be entertained in law because it was contended that under Section 53, Copyright Act, 1957, no application was indeed made by the petitioner to the writ petition. In any event it was submitted that the application was not in prescribed form and lastly it was urged that before any action could be taken under Section 53, Copyright Act, 1957, the Registrar of Copyright had to be satisfied that there was copyright in favour of the petitioner and that by the goods which are the subject matter of the dispute there had been infringement of that copyright. We were taken through the rules and the prescribed form in order to indicate that the particulars of sufficient evidence had to be given in the application to enable the Registrar of Copyrights to come to that conclusion. In this case it was contended that there was no such application; there was no such material forwarded and that is a fact and, as such, the Registrar had not come to the decision about the infringement of any copyright or that the petitioner had any copyright in these cassettes which are the subject matter of the dispute in this case. There was some dispute whether any information about these cassettes had been given by the Customs Authority to the petitioner or the Customs Authority informed the petitioner about the alleged attempt of importation of the infringed copyright. There is some amount of confusion in the affidavit on behalf of the Collector of Customs and the submission made at the hearing are inconsistent with the averments made in the affidavit on behalf of the Collector of Customs on this point. But as nothing much of importance turns on this question, we need not pursue this aspect of the matter. That there was no order made as such as required under Section 53, Copyright Act, 1957, is more or less admitted by both the Registrar of Copyrights as well as by Collector of Customs. It was contended that the reliefs that have been asked for under the Customs Act would be the reliefs which could only be obtained, if there was an order and if there was an infringement under the Copyright Act. Our attention in this connection was drawn to several provisions of both the Customs Act as well as Copyright Act. But in order to appreciate this contention we have to refer to two treaties between the Government of India and the Government of Nepal. One is a treaty dealing with the trade between India and Nepal and another is a treaty dealing with the goods in transit in India going to Nepal. The treaty of transit recites that Nepal as a land-locked country needed access to and from the sea to promote its international trade. It also recognised the need to facilitate the traffic in transit through their respective territories. Article I of the said treaty reads as follows: "The contracting parties shall accord to 'traffic in transit' freedom of transit across their respective territories through routes mutually agreed upon. No distinction shall be made which is based on flag of vessels, the places of origin, departure, entry, exit, destination, ownership of goods or vessels." Articles III, IV, V and VI read as follows: "Article III: The term 'traffic in transit' means the passage of goods including unaccompanied baggage across the territory contracting party when the passage is a portion of a complete journey which begins or terminates within the territory of the other contracting party. The transhipment, warehousing, breaking bulk and change in the mode of trans port of such goods as well as the assembly, disassembly or re-assembly of machinery and bulky goods shall not render the passage of goods outside the definition of 'traffic in transit' provided any such operation is undertaken solely for the convenience of transportation. Nothing in this Article shall be construed as imposing an obligation on either contracting party to establish or permit the establishment of permanent facilities on its territory for such assembly, disassembly or re-assembly. Articte IV : Traffic in transit shall be exempt from customs duties and from ail transit duties or other charges except reasonable charges for transportation and such other charges as are commensurate with the costs of services rendered in respect of such transit. Article V : For convenience of traffic in transit the contracting parties agree to provide at point or points of entry or exit, on such terms as may be mutually agreed upon and subject to their relevant laws and regulations prevailing in either country, warehouses or sheds, for the storage of traffic in transit awaiting customs clearance before onward transmission. Article VI: Traffic in transit shall be subject to the procedure laid down in the Protocol hereto annexed and as modified by mutual agreement, except in cases of failure to comply with the procedure prescribed, such traffic in transit shall not be subject to avoidable delays or restrictions." Article IX recites that nothing in that Treaty would prevent either contracting party from taking any measures which might be necessary in pursuance of general international conventions, whether already in existence or concluded hereafter to which it was a party relating to transit, export or import of particular kinds of articles, such as, opium or other dangerous drugs or in pursuance of general convensions intended to prevent infringment of industrial, literary or artistic property or relating to false marks, or false indications of origin or other methods of unfair competition. The other treaty which we have mentioned is the treaty described a-s protocol to the treaty of transit between India and Nepal where certain warehouses, sheds and open space are mentioned as covered accommodation in Calcutta. Certain others are mentioned as open spaces. This treaty of trade also recites in Article II that the contracting party should endeavour to grant maximum facilities and to undertake all necessary measures for the free and unhampered flow of goods, needed by one country from the other to and from their respective territories. Article VIII of that treaty reiterates that the contracting parties agreed to co-operate effectively with each other to prevent infringement and circumvention of the laws, rules and regulations of either country with regard to matters relating to foreign exchange and foreign trade. Article X of that treaty also reiterates that nothing in his treaty should prevent the contracting parties from taking any measures which might be necessary for the protection of its essential security interests or in pursuance of general international conventions, whether already in existence or concluded hereafter, to which it was a party relating to transit, export or import of particular kinds of goods, such as, opium or other dangerous drugs. In this background we must examine the provisions of Customs Act to which our attention was drawn. There are certain definitions in the Customs Act upon which both sides rely. Section 2 (23), Customs Act, 1962, defines 'import' ag follows : " 'import' with its grammatical variations and cognate expressions means bringing into India from a place outside India." Section 2 (27), Customs Act, only states [hat 'India' includes the territorial waters of India. Section 2 (28) reiterates that 'Indian Customs Waters' means the water extending into the sea up to the limit of contiguous zone of India Section 2 (25) also indicates that 'imported goods' mean any goods brought into India from a place outside India but did not include the goods which had been cleared lor home consumption.
(3.) Section 2 (38) defines "stores" which meant goods for use in a vessel or aircraft and included fuel and spare parts and other articles of equipment, whether or not for immediate fitting. Section 30 (1) enjoins that the person-in-charge of a conveyance carrying imported goods should, within twenty-lour hours after arrival thereof at a customs station, deliver to the proper officer, in the case of a vessel or aircraft, an import manifest, and in the case of a vehicle, an import report, in the prescribed form. Other sub-sections deal with duties of the Customs Officer and nature of obligations on receipt of manifest. Section 11 of the Act gives power to prohibit importation and exportation of goods and permits the Central Government, by notification in the Official Gazette, to prohibit either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification, the import or export of goods of any specified description. Section 51 deals with clearance of goods for exportation and provides that where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charge payable under this Aft in respect of the same, the proper officer may make an order permitting clearance and loading of the goods for exportation. Section 53 deals with transit of goods in same vessel or aircraft subject to the provisions of Section 11, any goods imported in a vessel or aircraft and mentioned in the import manifest as for transit in the same vessel or aircraft to any port or airport outside India or any customs port or customs airport may be allowed to be so transmitted without payment of duty. Section 54 deals with transhipment of goods without payment of duty in certain manner. Section 55 deals with entry, etc. of transmitted or transhipped goods on arrival at customs port or customs airport. Section 58 deals with licensing of private warehouses. Section 56 deals with transport of certain classes of goods subject to prescribed conditions.;


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