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2018 DIGILAW 418 (MP)

Pitambra Industries v. State of Madhya Pradesh

2018-04-19

J.K.MAHESHWARI, S.A.DHARMADHIKARI

body2018
JUDGMENT : Assailing the order dated 03.04.2018 passed by learned single bench in W.P. No. 6644/2018, dismissing the writ petition on account of having an efficacious alternative remedy to the appellant, this appeal has been preferred. 2. The facts unfolded to file the present appeal are that appellant is the sole proprietorship concern manufacturing Putty, Dyes, Paint and Varnish etc. under the brand name “Maha Utsav”. As alleged the said brand name is neither registered under the Trade Marks Act, 1999 nor under the Copyrights Act, 1957. A complaint was lodged by one Mahesh Arjun Adaan of Torque Detective, that appellant is manufacturing the Putty similar to Birla White Wall Care Putty and selling the bags resembling the same. On the said complaint offence was registered at Crime No. 69/2018 under Section 103 and 104 of Trade Marks Act, 1999 (hereinafter it be referred to Trade Mark Act) and also a separate FIR has been registered under Section 51, 63 of Copyright Act, 1957 (hereinafter it be referred to Copy Right Act) at Crime No. 70/2018 at Police Station Girwai, District Gwalior. In this writ petition, the appellant sought direction against the respondents to open the lock and seal affixed on 16.03.2018 while search in the Pitambra Industry situated at Village Girwai, District Gwalior and permit the appellant to run the industry as per law. 3. Learned single bench referring the sub-section (5) of Section 115 of the Trade Marks Act observed that since the appellant is having efficacious alternative remedy for restoration of the seized articles, approaching before the Metropolitan Magistrate, therefore, interference was denied dismissing the writ petition. 4. Learned counsel appearing on behalf of appellant submits that as per Section 115 of the Trade Marks Act, after taking cognizance of the offence by the Deputy Superintendent of Police search and seizure of any industry can be made by the officer not below the rank of Deputy Superintendent of Police as per the opinion of the Registrar to the facts involved in the offence relating to Trade Marks Act and he shall abide the opinion so obtained. In the present case the respondents have not obtained any opinion from the Registrar defined under Section 2(v) and Section 3 of the Act. In absence of it, search, seizure, attachment and lock put to the industry by the respondents is not permissible under the law. In the present case the respondents have not obtained any opinion from the Registrar defined under Section 2(v) and Section 3 of the Act. In absence of it, search, seizure, attachment and lock put to the industry by the respondents is not permissible under the law. It is further submitted that taking cognizance by the Deputy Superintendent of Police may be based upon the opinion of the Registrar, otherwise, the action taken by the respondent is illegal and without jurisdiction. It is urged, when the search and seizure itself is under challenge, the remedy provided for restoration of the article is not an efficacious alternative remedy, however, dismissal of the writ petition is not justified. In support of the said contention, reliance has been placed on the judgment of the Supreme Court in the case of Whirlpool Corporation vs Registrar of Trade Marks, Mumbai reported in 1998 (8) SCC 1 . 5. On the last date i.e. 18.04.2018, on being asked by the Court, learned Govt. Advocate, sought time to seek instruction, whether any opinion was sought from the Registrar. Today, he has received the case diary and after going through the same and under the instructions, it is fairly stated that either in the case diary or in the return filed in the writ petition, opinion of the Registrar has not been attached or received, therefore, the question arises for consideration, whether without obtaining the prior opinion from the Registrar for an offence registered under Section 103 and 104 of the Trade Marks Act, search, seizure and attachment of the industry is permissible? 6. After hearing learned counsel on behalf of both the parties and to advert the arguments as advanced, first of all provisions of Section 115 of the Trade Marks Act is relevant to deal with the issue, which is reproduced as under:- “115.Cognizance of certain offences and the powers of police officer for search and seizure.— 1. 6. After hearing learned counsel on behalf of both the parties and to advert the arguments as advanced, first of all provisions of Section 115 of the Trade Marks Act is relevant to deal with the issue, which is reproduced as under:- “115.Cognizance of certain offences and the powers of police officer for search and seizure.— 1. No court shall take cognizance of an offence under section 107 or section 108 or section 109 except on complaint in writing made by the Registrar or any officer authorised by him in writing: Provided that in relation to clause (c) of sub-section (1) of section 107, a court shall take cognizance of an offence on the basis of a certificate issued by the Registrar to the effect that a registered trade mark has been represented as registered in respect of any goods or services in respect of which it is not in fact registered. 2. No court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of the first class shall try an offence under this Act. 3. The offences under section 103 or section 104 or section 105 shall be cognizable. 4. Any police officer not below the rank of deputy superintendent of police or equivalent, may, if he is satisfied that any of the offences referred to in sub-section (3) has been, is being, or is likely to be, committed, search and seize without warrant the goods, die, block, machine, plate, other instruments or things involved in committing the offence, wherever found, and all the articles so seized shall, as soon as practicable, be produced before a Judicial Magistrate of the first class or Metropolitan Magistrate, as the case may be: Provided that the police officer, before making any search and seizure, shall obtain the opinion of the Registrar on facts involved in the offence relating to trade mark and shall abide by the opinion so obtained. 5. Any person having an interest in any article seized under sub-section (4), may, within fifteen days of such seizure, make an application to the Judicial Magistrate of the first class or Metropolitan Magistrate, as the case may be, for such article being restored to him and the Magistrate, after hearing the applicant and the prosecution, shall make such order on the application as he may deem fit.” 7. On perusal, it is apparent that for an offence under Sections 107, 108 and 109 of the Act, the cognizance can be taken on filing a complaint in writing by the Registrar, and the Courts of Metropolitan Magistrate and Judicial Magistrate First Class are empowered to try the offences under this Act. But the offences under Sections 103, 104 and 105 of the Act, shall be cognizable and if these offences are required to be registered, then it ought to be by an officer not below the rank of Deputy Superintendent of Police on being satisfied that the offence has been committed. Sub-section 4 of Section 115 of the Act makes it clear that the police officer who is taking cognizance in the said offence shall obtain opinion of the Registrar on the facts involved in the offence relating to Trade Mark and shall abide the opinion so obtained before making any search and seizure. However, to obtain an opinion is a sin-qua-non and it must be abide by the Police Officer at the time of search and seizure, therefore, such compliance is mandatory to the police officer prior to search and seizure in case an offence is registered under Section 103, 104 and 105 of the Trade Marks Act. 8. It is not disputed that the Registrar has been defined under Section 2(v) of the Act which is known as Registrar of Trade Marks as referred in Section 3 of the Act. As per Section 3 of the Act, the appointment of the Registrar may be made by the Central Government by way of notification in the Official Gazette but simultaneously the Central Government may also appoint such other officer to discharge functions of the Registrar under the superintendence and direction of the Registrar and such person shall carry out those functions. 9. As per the return filed by the respondents, it is merely said that the procedure prescribed under Section 115(4) of the Act has been followed, however, appellant is having an efficacious alternative remedy available to him as provided under sub-section 5 of Section 115 of the Trade Mark Act. Accepting the objection of the respondents, learned Single Bench relying upon the said objection dismissed the writ petition by the impugned order. 10. During the course of hearing when this Court asked to produce the opinion of the Registrar, learned Govt. Accepting the objection of the respondents, learned Single Bench relying upon the said objection dismissed the writ petition by the impugned order. 10. During the course of hearing when this Court asked to produce the opinion of the Registrar, learned Govt. Advocate informed that the opinion of the Registrar has not yet obtained in the present case and also not available in the case diary. Looking to the facts of the case and in view of the discussion made hereinabove, it is apparent that an offence under Sections 103, 104 and 105 of the Trade Marks Act was registered against the appellant by the Deputy Superintendent of Police, however, for the purpose of search and seizure, he is required to take an opinion from the Registrar and to abide the same as per Section 115(4) of the Trade Marks Act. In the present case, no such opinion has been obtained, however, the search and seizure without the opinion in furtherance to the registration of an offence is illegal and not valid, therefore, the prayer as made in the writ petition deserves to be allowed holding that lock put on the factory premises is without jurisdiction and not in accordance with the provisions of the Trade Marks Act. 11. It is trite law that in case the action taken by the authority is in violation of the provisions of the Act and Rules, without jurisdiction or in non-observance of the principle of natural justice, the interference in exercise of the power under Article 226 of the Constitution of India is not barred. In this regard guidance can be taken from the judgment of Whirlpool Corporation (supra). In addition, it is to observe, that the finding of learned Single Bench, that the appellant may apply for restoration of the articles before the Metropolitan Magistrate but it has not been considered that the search and seizure made under Section 115(4) of the Trade Marks Act can be made by the Police Officer. 12. As discussed above, it is clear that upon taking the cognizance by the Deputy Superintendent of Police for an offence under Sections 103, 104, 105 of the Trade Marks Act for the purpose of search and seizure, the opinion from the Registrar to the facts involved relating to the trade mark is necessary, which ought to be abided by such officer. In absence of the opinion of the Registrar and without abiding it, the search and seizure made by the Police Officer is illegal and without jurisdiction. Once the action of the authority is found as illegal and without jurisdiction, invoking the jurisdiction under Article 226 of the Constitution of India is not barred. In addition when the challenge made to the search and seizure is itself found illegal and against such action alternative remedy is not provided in the Act. The remedy under Section 115(5) of the Trade Marks Act is of restoration to the articles seized during search and seizure, which cannot be said to be efficacious remedy to challenge the search or seizure and it is only for restoration of the articles so seized, therefore, the finding as recorded by the learned Single Judge dismissing the writ petition stands set aside. 13. Insofar as registration of an offence under the Copyrights Act as alleged in the F.I.R and looking to the violation as specified in Section 3 of the Copyrights Act is concerned, it includes the classes of work, which are original literary, dramatic, musical, artistic and cinematography films. The said contingency to take the cognizance has been contained in Sections 51 & 63 of the infringement of the Copyrights Act to which the procedure has been prescribed in Sections 64 & 65 of the said Act. But for taking the cognizance until the copyright as specified in Section 3 subsists, the registration of the offence and taking of the cognizance is said to have not permissible. It is urged that allegation alleged in the F.I.R prima facie does not establish the infringement of the copyrights. However, the search and seizure under the said provision is not germane and it has been initiated by the respondents without prior opinion of the Registrar, therefore, such action is illegal and without jurisdiction. 14. In consequence to the aforesaid discussion, this writ appeal succeeds and is hereby allowed. The order dated 03.04.2018 passed by learned Single Bench in W.P. No. 6644/2018 stands set aside. The search and seizure made by the Police Officer without the opinion of the Registrar and to abide it, is held to be illegal and without jurisdiction, therefore, the relief as prayed for in this writ appeal also stands allowed. The order dated 03.04.2018 passed by learned Single Bench in W.P. No. 6644/2018 stands set aside. The search and seizure made by the Police Officer without the opinion of the Registrar and to abide it, is held to be illegal and without jurisdiction, therefore, the relief as prayed for in this writ appeal also stands allowed. The respondents are directed to open the lock of the industrial premises forthwith and shall permit the appellant to run the industry as per law. 15. While disposing of this writ appeal, it is made clear here that this Court has dealt with the issue of search, seizure and closure of the factory under the provisions of the Trade Marks Act and the Copyrights Act. The findings recorded hereinabove are only relating to deal with the said issue and closure of the factory premises, however, it is having nothing to do with the merits of the registration of the F.I.R. The Court below while trying with the offence is at liberty to form its own opinion in accordance with provisions of Trade Marks Act, 1999 and the Copyrights Act, 1957 without being influenced by the above observations.