M. K. CHAWLA ( 1 ) SHRI Ashok Dheri is the Marketing Manager of the complainant company, the Gwalior Rayons Silk Mfg (Wvg) Co. Ltd. , and is competent to initiate, institute and prosecute the complaint. On 3rd June, 1986, he fiied a complaint u/ss 78 and 79 of the Trade and Merchandise Marks Act before the Chief Metropolitan Magistrate, Delhi, alleging therein that the complainant-company is engaged in the manufacture and sale of suitings and shirtings being textile goods ; that practically over 3 decades the complainant has used Gwalior Suitings/gwalior Shirtings as its trade mark which has enjoyed enviable reputation in the mind of the purchasing public and the trade ; that this trademark on account of long established and extensive user and the huge publicity, has acquired secondary meaning and distinctiveness so much so that the said trade mark has come about to be exclusively identified and recognised with the suitings and shirtings of the complainant manufacturer, and none else ; that since the year 1977, the complainant has also used Dornfab as its trade mark which also enjoys enviableeputation in the mind of the purchasing public and the trade ; that this trade mark is registered under the provisions of the Trade and Merchandise Marks Act, 1958 which registration is still subsisting, valid and is in full legal force. The complainant company has also been spending substantial amount on the publicity of the trade mark which is indicated in para 5 of the complaint. ( 2 ) IT is the case of the complainant that of late, they have come to know that certain firms, companies and persons are engaged in the fabrication of complainant s trademarks Gwalior Suitings/shirtings and/or Dornfab ; that the said persons, firms and companies have made and/or are making an identical ;rade mark and/or deceptively similar marks with intent to cause confusion and deception in the mind of the unwary class of purchasers having imperfect recollection ; that some of such falsified marks which are being used by the accused persons are ; GWALIOR RUCHIKA, GWALIOR SUPERMAN ; GWALIOR SUNFAB ; GWALIOR FORT ; GWALIOR GOLDWIN SUITING ; GWALIOR DORNFAB ; GWALIOR SYNTEX : GWALIOR PREMIER, etc. that the accused are using the name Gwalior with other prefix or suffix except Suiting or Shirting ; that the illegal trade activities of the manufacture and sale of inferior quality textile material under the falsified trademarks are being committed by unknown persons/firms/companies at various places in the Union Territory of Delhi and the rest of the country, as a result of which, the unwary class of customers are being deceived, confused and misled into purchasing the local inferior quality textile material under the impression as if they are the genuine merchandise of the complainant; that the accused persons are also in possession the said goods, dies, blocks, machines, plates or other instruments bearings or used for the purposes of falsifying the complainant s trademarks. In the complaint, the company submitted that in order to secure the ends of justice and to bring the offenders to book, it is absolutely necessary that the matter is thoroughly enquired into or investigated by the Police. Further, unless the goods to which the false trademarks have been applied alongwith all other instruments, machines, stickers and other materials are not recovered and taken into possession, the accused persons are bound to conceal, destroy or dispose of the entire matrial evidence concerning the commission of the offence It was prayed that for the purpose of inquiry/trial and other proceedings under the provisions of law that an order of investigation be made in the matter and for the said purpose, general search and/or inspection is ordered to be made by the Police Officer or any such person as this Court may deem fit under the provisions of Section 155 (2) read with Section 156 (3) of the Code of Criminal Procedure. ( 3 ) THIS complaint was marked to the Court of Smt. Kanwal Inder, A. C. M. M. , Delhi. Vide order dated 5-6-86, learned A. C. M. M. having been satisfied with the contents of the complaint, issued general search warrants u/s 96 93 of the Code of Criminal Procedure by authorising P. C. P. (Crime and Railway) or his nominee not below the rank of Sub-inspector to effect search and seizure in accordance with law within the territory of Delhi, wherein an offence u/ss 78 and 79 of the Trade and Merchandise Marks Act )With respect to the textile material under the trademark Gwalior Suiting/shirting or Dornfab is being committed. The complainant was also directed to accompany the Police Officer for the purpose of pointing out/identifying the spurious textile material being false trademarks. It was further ordered that the seized goods, if any, be produced in the court on or before 1-8-86. The samples of the article being the trademark of the complainant and the samples of the alleged falsified trademarks were sent to the D. C. P. (Crime and Railways) alongwith copy of the complaint with the search warrant for investigation. ( 4 ) IN pursuance of the search warrant issued by the Court of A. C. M. M. , Tis Hazari, the Police officers conducted the search of the premises of respondents 2 and 3 and seized the infringing goods as per the search and seizure memos dated 19-6-86 and 21-6-86. ( 5 ) ON 30-6-86, M/s Darshan Kumar Mangat Ram, respondent No. 3, and on 3-7-86, M/s Bhasin Textiles, respondent No, 2 moved opplications under Section 93 of the Code of Criminal Procedure for recalling of and/or stay of the order dated 5-6-86 and also for the release of the goods seized from their premises. The complainant filed the reply opposing the prayer. The arguments on the application were addressed before the learned A. C. M. M. and in support of the same, the parties also filed the written arguments. However, before the disposal of the application, the case was made over to the Court of Shri D. S. Pawaria, M. M. Delhi for disposal according to law. After hearing arguments, at length, Shri D. S. Pawaria, M. M. Delhi, passed the order releasing the goods seized by the Police with the mark Gwalior Gold, Gwalior Ford to Shri Darshan Kumar on superdari and goods with mark Gwalior Superman to Sbri Narinder Singh on superdari in the amount of Rs. 1 lakh each respectively and to keep the same in sealed condition for a period of one month. It was further ordered by him that if during this period this order is not set aside or stayed by any competent Court, the parties shall be at liberty to use the seized cloth as they may like. On the same day, in the supplementary order, the learned Metropolitan Magistrate directed the parties to approach the Crime Branch Inspector on 26-8-86 at 5 P. M. for the sealing of the seized property. On the same day, in the supplementary order, the learned Metropolitan Magistrate directed the parties to approach the Crime Branch Inspector on 26-8-86 at 5 P. M. for the sealing of the seized property. ( 6 ) AGGRIEVED from the said order of the release of the goods, the complainant company filed the present revision petition praying for setting aside the impugned order and for the issuance of the directions that the character and the nature of the case property seized in this case be ordered to be preserved till the disposal of the present revision petition. Notice of this petition was issued to the respondents by my order dated 26-8-86 and in the meantime the operation of the impugned order was stayed. The respondents have filed the reply to the revision petition praying for the restoration of the order of the learned Metropolitan Magistrate. ( 7 ) I have heard the arguments of the learned Counsel for the parties and with their help gone through the record carefully. ( 8 ) THE contention of the learned Counsel for the complainant/petitioner is that the learned Metropolitan Magistrate fell into grave error of law while recording/observing and giving his finding on the merits of the case while disposing of the application of the respondents for restoration of the seized property. The finding given by the learned Magistrate virtually amounts to discharge of the respondent/accused without there being any trial. The learned Couusel also contended that the learned Metropolitan Magistrate fell in error while coming to the conclusion that the seized property is not the "case property" after recording the finding that the complainant has exclusive right to the use of mark Gwalior Suiting/gwalior Shirting. It is also contended that the search and seizure warrants should not have been stayed without affording the complainant a reasonable opportunity of being heard. None of these arguments are to the liking of the respondents who mainly rely upon the finding of the learned Metropolitan Magistrate under which the goods were ordered to be returned to the respondents on superdari. The contention is that no useful purpose will be served for keeping the huge quantity of the material in the Police Station for years together and it will be advantageous to the parties if the same is allowed to be disposed of after keeping the samples of the seized property with the Court. The contention is that no useful purpose will be served for keeping the huge quantity of the material in the Police Station for years together and it will be advantageous to the parties if the same is allowed to be disposed of after keeping the samples of the seized property with the Court. It is also contended that the petitioners have lost interest in the trademark inasmuch as the name of the complainant company has since ceased to exist. ( 9 ) DURING the course of hearing arguments, a formula was devised to safeguard the interests of the parties with a view to avoid the deterioration of the material already seized and kept in sealed parcels. It is not disputed that the Court has yet to go into the merits of the complaint as to whether the petitioner/complainant company is the proprietor of the trademarks as alleged in the complaint or the respondents are falsifying the said trademark by manufacture and sale of the cloth material under the different trademarks as stated in the complaint. Until and unless the said dispute is settled finally, it is not desirable to release the goods to the respondents either on superdari or otherwise as the same is the subject-matter of controversy between the parties. However, in order to avoid the delay in the disposal of the complaint, as observed earlier, in my opinion, the ends of justice will be fully met if the order of learned Metropolitan Magistrate, dated 23-8-86 is set aside and the Police authorities are given one month s time from today to complete the investigations in any manner they like After the expiry of this period, the Police shall file the challan in the Court, if any case is made out, or report for cancellation of the complaint. In case the challan is filed, then the learned Court will try to dispose of the matter as expeditiously as possible. In that case, the respondents shall be at liberty to move the lower Court, if so advised, for the retention of the samples of the articles seized, and the return of the rest of the cloth on such conditions as are deemed fit by the lower Court. ( 10 ) IN the result, the revision petition stands disposed of with no order as to costs.