JUDGMENT : Heard Mr. Shailesh, learned counsel appearing for the petitioners and Mr. Ravi Prakash and Mrs. Priya Shrestha, learned Spl.P.Ps. for the State. 2. On several occasions, notices were issued upon the O.P. No. 2, but he chosen not to appear in the matter and finally by order dated 21.08.2019 step for substituted service of notice upon the O.P. No. 2 was taken by the learned counsel appearing for the petitioners. The notice was published in the local daily Newspaper “Punjab Keshri” where the O.P. No. 2 resides. After recording this fact the matter was adjourned on 14.10.2019 with a view to provide one opportunity to the O.P. No. 2. Again on 07.02.2022 nobody has responded on behalf of the O.P. No. 2 and with a view to provide one more opportunity to the O.P. No. 2, the matter was adjourned. Much indulgence has been given and in spite of that the O.P. No. 2 chosen not to appear in the matter. As such this petition is being disposed of in absence of O.P. No. 2. 3. In both the petitions, the similar complaint is under challenge that’s why both petitions have been heard together and being disposed of by this common order. 4. These petitions have been filed for quashing of the entire criminal proceedings initiated, vide C.O. Case No. 05 of 2014 including the order dated 12.02.2014, passed by the learned C.J.M., Dhanbad, wherein cognizance has been taken against the petitioners, under Sections 482 and 486 of the Indian Penal Code and Section 104 of the Trade Marks Act, 1999, pending in the Court of learned Judicial Magistrate, 1st Class, Dhanbad. 5. The complaint was filed stating therein that on 01.02.2014 an information about commission of cognizable offence was given to the officer-in-charge, Bankmore, Dhanbad by one Praveen Kumar, claiming to be a private enforcement officer engaged by Hundai Company to protect and take legal action as against spurious and duplicate articles spread out in the market in the name of Hundai company. It has been further alleged that on 01.02.2014 the informant after coming to know that in certain shops of the local market duplicate accessories of Hundai Company is being sold. The informant after taking help of the local police raided following shops:-Saluja Car Accessories, B.S. & Sons, Kanhaiya Motor and Car Beauty. It has been further alleged that on 01.02.2014 the informant after coming to know that in certain shops of the local market duplicate accessories of Hundai Company is being sold. The informant after taking help of the local police raided following shops:-Saluja Car Accessories, B.S. & Sons, Kanhaiya Motor and Car Beauty. From the possession of the said shops, certain seat covers bearing name of Hundai Company was seized. Accordingly, a seizure list was prepared and the informant sought legal action as against the named accused, shop keepers for their act of fraud and on that informant no FIR was lodged, but a station diary entry vide SDE No. 30/14 was entered. On 03.02.2014 a non-FIR vide Sadar Bankmore Case No. 01/2014 dated 03.02.2014 was entered and thereafter the Sub-Inspector, Bankmore Police Station lodged a complaint by Officer before the C.J.M., Dhanbad vide C.O. Case No. 05/2014 giving reference of S.D.E. no. 30/2014 dated 01.02.2014 seeking the learned C.J.M. to initiate prosecution under Sections 482 and 486 of the Indian Penal Code and Section 104 of the Trade Marks Act, 1999. The learned C.J.M., Dhanbad after receiving the Non-FIR prosecution report, took cognizance for the offences under Sections 482 and 486 of the Indian Penal Code and Section 104 of the Trade Marks Act, 1999 and accordingly, notices were issued to the accused persons. 6. Mr. Shailesh, learned counsel appearing for the petitioners submits that the cognizance for the offences under Sections 482 and 486 of the Indian Penal Code and Section 104 of the Trade Marks Act, 1999 have been taken against the petitioners are in violation of Section 115(4) of the Trade Marks Act, 1999. He submits that entire investigation was done by the Assistant Sub-Inspector (A.S.I) of police. He submits that in view of Section 115(4) of the Trade Marks Act, 1999, the police, not below the rank of Deputy Superintendent of Police or equivalent is entitled to investigate or to lodge the case. 7. Mr. Ravi Prakash and Mrs. Priya Shrestha, learned Spl.P.Ps. appearing for the State submit that there is no illegality in the impugned cognizance order and the said order has been passed after examining all the facts. 8. In view of the above, the Court has gone through the records. 7. Mr. Ravi Prakash and Mrs. Priya Shrestha, learned Spl.P.Ps. appearing for the State submit that there is no illegality in the impugned cognizance order and the said order has been passed after examining all the facts. 8. In view of the above, the Court has gone through the records. It appears that the investigation was done by the A.S.I. and the cognizance has been taken by the learned Magistrate by order dated 12.02.2014. 9. Section 115(4) of the Trade Marks Act, 1999 is quoted hereinbelow:- “115. Cognizance of certain offences and the powers of police officer for search and seizure- (1) ……. (2)……. (3)……. (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.” 10. In the present case Non-FIR was lodged under Sections 482 and 486 of the Indian Penal Code and Section 104 of the Trade Marks Act, 1999. It is crystal clear that the procedure of search and seizure has not been carried out, as the police, not below the rank of Deputy Superintendent of Police or its equivalent has not carried out the said search and seizure, rather the said act has been done by the A.S.I., which is contrary to the provisions of Section 115(4) of the Trade Marks Act and, therefore, for that search and seizure, criminal proceeding under the provisions of Trade Marks Act cannot be allowed. 11. Moreover Proviso-4 of Section 115 of the Trade Marks Act stipulates the competent authority, who will carry out the search and seizure, i.e. not below the rank of Deputy Superintendent of Police or its equivalent, the criminal prosecution under the Trade Marks Act cannot be allowed to continue. 11. Moreover Proviso-4 of Section 115 of the Trade Marks Act stipulates the competent authority, who will carry out the search and seizure, i.e. not below the rank of Deputy Superintendent of Police or its equivalent, the criminal prosecution under the Trade Marks Act cannot be allowed to continue. Even otherwise, the provision of Sub-Section 4 of Section 115 of the Act with respect to obtaining the opinion of the Registrar before making any search and seizure having not been complied and which does not find mention in the written report of the O.P. No. 2 and which has also not been controverted in the counter affidavit, filed on behalf of the State. The O.P. No. 2 chosen not to appear in the matter, in spite of several adjournments. 12. So far as offences under Sections 482 and 486 of the Indian Penal Code are concerned, the same appears to be not in consonance with the Trade Marks Act, since in special cases, if a particular statute is prescribed, the Penal Code will not apply. 13. The Court has also perused the impugned order dated 12.02.2014, from which, it transpires that the said cognizance order is not a speaking order, rather it is a cryptic order. 14. In view of the above, no case is made out against the petitioners and the cognizance order, by which, cognizance has been taken against the petitioners is also bad in law. As such the entire criminal proceedings initiated, vide C.O. Case No. 05 of 2014 including the order dated 12.02.2014 passed by the learned C.J.M., Dhanbad, wherein cognizance has been taken against the petitioners under Sections 482 and 486 of the Indian Penal Code and Section 104 of the Trade Marks Act, 1999, pending in the Court of learned Judicial Magistrate, 1st Class, Dhanbad, are hereby, quashed and set aside. 15. Both these criminal miscellaneous petitions are allowed and disposed of.