ORDER
K.P. Mohapatra, J.
1. The petitioners are owners of a video parlour in Umerkote of Koraput district. On 30-7-1988 the Officer-in-Charge of Umerkote Police Station raided the parlour and found that the petitioners were exhibiting a film named 'Kanwarlal' without having a licence for exhibition of the film which itself had not been certified for exhibition. Therefore, the V.C.R., the television, the screen and the other apparatus along with the film were seized and a first information was lodged against the petitioners on the allegations that they had violated the provisions of the Cinematograph Act, 1952 and the Copy Right Act, 1957. The petitioners moved the learned Judicial Magistrate, Umerkote for release of the seized articles, but their prayer was refused Thereupon the learned Sessions Judge, Jeypore was moved in revision but by the impugned order he directed that the seized articles should be packed and sealed in the presence of the learned Judicial Magistrate and should be handed over to petitioner 1 to be kept in safe custody on execution of zimanama and undertaking to produce the same once in every month before the learned Judicial Magistrate and further be produced in Court at the time of trial for being proved and accepted as material objects. The aforesaid order has been harshly challenged in this case.
2. Learned Counsel appearing for the petitioners contends that there is provision in law for seizure of the film, but there is no provision whatsoever for seizure of the apparatus for exhibition of films. Therefore, although the film can be kept in the custody of the Court as a piece of seized material object, the apparatus namely, the VCR, the television and the screen etc. should be made over to petitioner 1 so that they may be put to use or else their quality will deteriorate for prolonged non-user and storage. It is therefore necessary to examine this contention.
3. According to Section 2, Clause (c) of the Cinematograph Act; 1952 'cinematograph' includes any apparatus for the representation of moving pictures or series of pictures. According to CL (dc) thereof 'film' means a cinematograph film. From the aforesaid definition there is no doubt that a VCR, a television and a screen with the help of which a film is exhibited come within the definition of 'cinematograph'.
4. According to Section 10 of the Cinematograph Act, 1952, no person shall give an exhibition by means of a cinematograph elsewhere than the place licensed in accordance and in compliance with the conditions and restrictions imposed by such licence under the aforesaid Act. Section 7 is the penal provision according to which if any person exhibits or permits to be exhibited in any place, any film other than a film which has been certified by the Board constituted under Section 3 as suitable for unrestricted public exhibition or for public exhibition restricted to adults shall be punishable with imprisonment or fine or both. According to Section 2(a) of the Orissa Cinemas (Regulation) Act, 1954, 'cinema' includes any apparatus for the representation of moving picture or series of pictures. 'Place' defined in Clause (b) includes also a house, building, tent and any description of transport whether by water, land or air. Section 3 provides that no person shall give an exhibition by means of a cinema elsewhere than in a place licensed under the Act or otherwise than in compliance with any conditions and restrictions imposed by such licence. Section 63 of the Copy Right Act, 1957 makes infringement of copy right in work punishable with imprisonment and fine. A consideration of the aforesaid provisions will show that a person without having any licence cannot exhibit a film and that too one which has not been certified by the Board for public exhibition. In this case the allegation as contained in the F.I.R. against the petitioners is that they exhibited a film named 'Kanwarlal' which had no certificate of the Board for public exhibition and that too for running the video parlour for exhibition of films without any licence according to law.
5. In connection with the above case as already stated, the apparatus for exhibition was seized along with the film and have been kept . in sealed , packets without giving opportunity to the petitioners for use of the same. The power of seizure under Section 7A of the Cinematograph Act, 1952 is limited to the extent of the seizure of the film and not the apparatus. In other words, if there is reasonable suspicion that an offence has been committed which is punishable under Section 7 of the aforesaid Act, the investigating agency can at best seize the uncertified film or the certified film, as the case may be, but the apparatus which has been defined as cinematograph in Section 2(c) cannot be seized. There is no such provision of seizure of the apparatus in the Orissa Cinema (Regulation) Act, 1954, as well as the Copy Right Act, 1957. Therefore, in my view the contention of the learned Counsel for- the petitioner to the effect that the film can alone be seized, but not the apparatus has to be accepted.
6. Before parting with the case 1 would like to observe that the records reveal that there is some suspicion with the petitioners acquiring the VCR, the video and the screen all of which were foreign made, without payment of customs and excise duties. It further appears that a reference in relation thereto has also not been made to the appropriate authority. But there is no allegation of violation of any of the provisions of the Central Excises and Salt Act 1944 and the Customs Act, 1962. If after investigation, however, it would appear that the petitioners have violated any of the provisions of the aforesaid two Acts, the investigating agency shall be free to act according to law in respect of the apparatus referred to above despite this order.
7. For the aforesaid reasons, the criminal misc. case is allowed in part. While the order of the learned Sessions Judge with regard to the film is affirmed, his order in relation to the VCR, the television and the screen etc. are hereby vacated. The same shall be delivered to petitioner' 1 subject to the following conditions:
(1) The seized apparat us namely, the video, the television and the screen etc., shall be kept in safe custody by petitioner 1;
(2) He shall not transfer or alienate the same until disposal of the case;
(3) He shall not move the same from out of Umerkote town;
(4) He shall produce the same once on the 1st of every month, and in case, the 1st is a holiday, on the succeeding day before the learned Judicial Magistrate, Umerkote until disposal of the case;
(5) If any repair should be necessary outside Umarkote town he should apply for permisson of the learned Judicial Magistrate and act accordingly;
(6) As and when he will be directed to produce the apparatus before any authority, the same shall be produced; and
(7) A written undertaking should be furnished stating all these conditions.