Recently the Delhi High Court was questioned as to whether the offence punishable under section 63 of the Copyright Act is a bailable or a non-bailable offence under the Code of Criminal procedure.

Facts which resulted in filing of this petition are that a First Information Report was lodged by police against one Naresh Kumar under section 103 & 104 of the Trademarks Act along with section 63 of the Copyright Act for stocking and selling counterfeit goods. Naresh Kumar, anticipating arrest for the offence, moved an anticipatory bail application which was dismissed by the Magistrate holding that section 63 of the Copyright Act is a bailable offence and there was no need to grant an anticipatory bail.

The State (through Public Prosecutor), being aggrieved by the order passed by the Magistrate, filed the present petition contending that since the offence under section 63 of the Act was punishable with imprisonment which could extend to three years and with fine which could extend to Rs. 200,000 (approx US $ 3300), as per Criminal Procedure Code an offence under section 63 of the Copyright Act would be a cognizable and non-bailable offence.

The Delhi High Court while disagreeing with the contentions of the State relied upon the judgment of Supreme Court in Avinash Bhosle Vs. Union of India wherein it was held that offence under section 135(1)(ii) of the Customs Act that attracts punishment of upto three years or fine or both was held to be bailable offence.

Applying the above principle laid out by the Supreme Court, the High Court held that an offence under section 63 of the Copyright Act is a bailable offence.

Our comment

This has come as a setback for IP owners given the slow prosecution of cases at the Magistrate Court leading to conviction. Also, the arrest of the party selling/stocking counterfeit/pirated goods would not act as a strong deterrent for traders dealing in such goods as it will be classified as a bailable offence.