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Judgment
Janarthanam, J.—A video Cassette Circulation shop going by the name and style ""Entertaining Enterprises is situate at No. 310 Anna Salai,
Teynampet, Madras-18. While A.L. Kannappan was the Manager. S. Jegan Mohan Rao was the Proprietor of the said Enterprises.
One V. Manickam, Assistant Commissioner of Police, Law and Order, Saidapet Range, Saidapet, Madras raided the premises of the
Enterprises at 21:30 hours on 18.6.1986 with the assistance of the Sub Inspector of Police, E.3 Teynampet Police Station, R. Panneerselyam and
Part. At the time, in the said premises the Manager A.K. Kannappan was present. The search of the premises was continued till 1:15.a.m. on the
next day namely 19.6.1986. The said Enterprises was found in possession of the following video cassettes:
Tamil Film .. 1
Cassettes.
English Film .. 215
Cassettes
Bengali Film .. 36
Cassettes
Malayalam .. 67
Film Cassettes
Telegu Film .. 161
Cassettes
Hindi Film .. 100
Cassettes
Total .. 580
A search list had been prepared and all those cassettes were seized in the presence of witnesses and they were stated to have been screened in the
presence of the Assistant Commissioner. The said screening revealed nothing to speak to the fact that the said cassettes were procured after
getting the consent letter from the lawful assignee as contemplated under Ss. 9,10,15(1) and 15(2) of the Tamil Nadu Exhibition of Films on
Television Screen Through Video Cassette Recorders (Regulation) Act, (Act 7 of 1984), for short ''the Act'', There was also no valid licence to
run the shop in the said place.
Consequently, a case in Crime No. 1710 of 1986 of E.3 Teynampet Police Station, had been registered under Ss. 9(2),10(2) read with Ss.
15(1) and 15(2) of the Act. After complying with the formalities of the investigation, final report u/s 173(2) Cr.P.C. had been laid on 18.7.1986
arraying A.K. Kannappan and S. Jegan Mohan Rao as accused for the alleged contravention of Section 4 punishable u/s 15(2) of the Act, which
was taken on file as C.C. No. 4389 of 1986 on the file of the XVIII Metropolitan Magistrate, Saidapet, Madras.
On receipt of process, Petitioners-accused came forward with the present action invoking the inherent jurisdiction of this Court u/s 482 Code of
Criminal Procedure to quash the criminal proceedings initiated against them.
Learned Counsel appearing for the Petitioners-accused would vehemently contend that since the Petitioners were favoured with a licence on the
date of seizure itself, namely 19.6.1986, it cannot be stated that the Petitioners-accused had refracted or violated the provisions of Section 4
punishable u/s 15(2) of the act and therefore, the prosecution as launched has to be thrown lock stock and barrel.
Learned Additional Public Prosecutor would, however, repel such a submission.
The question whether the Petitioners-accused were favoured with a licence or not is a matter to be decided during trial on adduction of proper
evidence. Assuming for arguments sake that what is represented by the learned Counsel for the Petitioners-accused that licence in fact had been
granted in favour of the Petitioners-accused on 19.6.1986 is correct, it was granted subsequent to the seizure of the video cassettes even
according to learned Counsel for the Petitioners.
To make matters more clear, video cassettes had been seized during the search operation commenced on 18.6.1986 at 9:30 p.m. and
continued upto 1:15 a.m. on the next day, namely 19.6.1986. Only after the day dawn, it appears that on the effective approach having been made
by interested persons for and on behalf of the Petitioners-accused, they were granted licence by the competent authority. The fact remains that at
the time of seizure, the Petitioners-accused were not at all having the requisite licence to run the video library. It is to be noted here that the act
came into force on 14.1.1984.
Section 23(1) of the act prescribes that every person giving an exhibition of film on Television screen through Video Cassette Recorder, or
every person keeping video library immediately before 14th January, 1984 shall obtain a licence under his Act, within a period of four weeks from
the said date.
Sub S.(2) of the Act further provides that if the person referred to in Sub-section (1) fails to obtain a licence within the period mentioned in
Sub-section (1), he shall discontinue such exhibition and in the case of video library, he shall close such video library.
It is not in dispute that the Petitioners-accused had been conducting such a video library even long before the commencement of the Act.
Learned Counsel for the Petitioners-accused would practically concede and state that the Petitioners-accused challenged the vires of the
provisions of the Act by filing a writ petition before this Court and this Court struck down as null and void the provisions of Ss. 9(2) and 10(2) of
the Act by order dated 21.6.1984. The said decision had been reported in Entertaining Enterprises v. The State of Tamil Nadu, 1984 Writ
L.R.57. In such circumstances, it goes without saying that the Petitioners-accused who had been conducting the video library ought to have closed
down the library immediately after four weeks from the date of commencement of the Act, namely 14.1.1984 and the sordid fact remains that they
conducted such video library even on 18.6.1986 the date on which the present raid has been conducted by the Assistant Commissioner of Police,
Madras. It is only subsequent to such raid and seizure, as already stated, the Petitioners-accused were stated to have been favoured with a licence
under the Act. In such state of affairs, it cannot be stated that they had not violated the provisions of Section 4 punishable u/s 15(2) of the Act.
Refraction or violation of the provisions of Section 4 of the Act became a fait accompli co-terminus with the seizure of those video cassettes.
No doubt true it is that the fact that they had been favoured with a licence immediately after the seizure is a factor serving as a mitigating,
extenuating or ameliorating circumstances in the matter of, imposition of punishment on proof of refraction or violation stated to have been
committed by the Petitioners-accused during the course of trial.
Section 15 prescribing penalties runs as under:
(1) Any person who contravenes or attempts to contravene or abets the contravention of the provisions of Section 10 shall be punishable with
imprisonment which may extend to three months or with fine which may extend to one thousand rupees or with both and in the case of a continuing
offence with a further fine which may extend to one thousand rupees for each day during which the offence continues.
(2) Any person who contravenes or attempts to contravene or abets the contravention of any of the provisions of this Act other than Section 10 or
any rule made there-under or of the terms and conditions of, and restrictions upon, any licence granted under this Act shall be punishable with
imprisonment which may extend to one year and shall also be liable to fine.
Section 15 had been amended by amending Act 47 of 1987. The amendment brought about is as under:
(1) In Sub-section (1) for the expression ""shall be punishable.... during which the offence continue"", substitute the following, namely:
shall be punishable with imprisonment for a term which shall not be less than two months but which may extend to six months and also with fine
which shall not be less than one thousand rupees but which may extend to three thousand rupees and in the case of a continuing offence with a
further fine which may extend to one thousand five hundred rupees for each day during which the offence continues.
(ii) In sub S.(2), for the expression ""shall be punishable .... liable to fine"", substitute the following, namely; ""shall be punishable with imprisonment
for a term which shall not be less than six months but which may extend to two years and also with fine which shall not be less than two thousand
rupees but which may extend to five thousand rupees.
After the amendment, a minimum punishment of imprisonment for six months and minimum fine of Rs. 2,000/- had been prescribed under Sub-
section (2) admittedly in the instant case, the violation or refraction of the provisions of Section 4 punishable u/s 15(2) of the Act was stated to
have been committed on 18.6.1986 long before the amendment came into effect. The amendment to Sub-section (2) cannot be held to be
applicable and if at all, the old provision of Sub-section (2) alone can be made applicable to the present case on the face of the salient provisions
adumbrated under Article 20(1) of the Constitution of India which prescribed that no person shall be convicted of any offence except for violation
of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have
been inflicted under the law in force at the time of the commission of the offence.
In case of proof of violation or refraction of Section 4 of the Act by the Petitioners-accused; the Petitioners cannot at all be subjected to any
greater penalty than that provided by old Sub-section (2) of Section 15 of the Act, under which there is no minimum sentence of imprisonment or
minimum sentence of fine, as had been prescribed under the amended Sub-section (2) under Act 47 of 1987. The punishment prescribed under
old Sub-section (2) may extend to imprisonment for one year and also fine. It means, the punishment may extend from one day to one year of
imprisonment and fine from Re.1/- to the maximum limit of fine which the court before which the proceedings is pending is competent to impose
under the provisions of the Criminal Procedure Code.
Such being the situation, I am of the view that in case the trial court comes to the conclusion, on the evidence available on record that the
Petitioners-accused had violated or refracted the provisions of Section 4 of the Act, in the sense of not having the requisite licence at the time when
the raid was conducted, they may be imposed with a minimum imprisonment till the rising of court and a befitting fine taking into consideration the
fact that they were favoured with a licence immediately after the seizure of the video cassettes as represented by learned Counsel for the
Petitioners, which will serve as a mitigating circumstances to take a lenient view of the matter, in the matter of infliction or imposition of fine.
With the observation as above, the petition is dismissed.