Research › Search › Judgment

Andhra High Court · body

2023 DIGILAW 987 (AP)

Gudise Srinu v. State of Andhra Pradesh

2023-07-05

K.SREENIVASA REDDY

body2023
ORDER : 1. This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) by the petitioners herein/A3 and A4 seeking to quash proceedings in C.C. No. 315 of 2021 on the file of the learned IV Additional Chief Metropolitan Magistrate, Vijayayawada. 2. A charge sheet has been filed against the petitioners herein and others for the offences punishable under Sections 420, 272 read with 34 IPC and Sections 103, 104 of the Trade Marks Act, 1999 and Section 63 of the Copy Right Act. 3. Brief facts of the case are that, on 13.11.2015, on receiving credible information about manufacturing of spurious Ghee, Inspector of Police along with his staff and mediators proceeded to Bharati Nagar and at about 16.00 hours, when they arrived Plot No. 22, there was a lady aged about 35 years was present there on seeing the police party she tried to skulk away from there, the Inspector of Police stopped her with the assistance of his staff and on questioning her, she revealed her name as Boddu Lakshmi and confessed about her family history and stated that she got acquaintance with one Phani of Teachers Colony who was previously indulged in manufacture of spurious ghee products with dalda, rice bran oil, turmeric powder and original ghee and she is supervising the said activities and making arrangements for dispatch of spurious ghee and she stored packing covers at her house. She further lead the police party to Kanasanapalli road where A3 and A4 were engaged in preparing spurious ghee, who in turn confessed that on the instructions of A1 and A2 they are manufacturing the said products. 4. Learned counsel for the petitioners submitted that in so far as the offence under Trade Marks Act is concerned. The respondent police while conducting seizure has followed the procedure contemplated under Section 115(4) of the Trade Marks Act. It is evident from the provision that it is only the Deputy Superintendent of Police who has the power to search and seize as per the provision. In the present case on hand, the Inspector of Police conducted investigation and filed charge sheet. He further submits that the Trade Marks Act is a self-contained Act and violation under this Act would be punishable only within the provisions of the said Act. In the present case on hand, the Inspector of Police conducted investigation and filed charge sheet. He further submits that the Trade Marks Act is a self-contained Act and violation under this Act would be punishable only within the provisions of the said Act. When such is the situation, invoking provisions of IPC is not tenable. 5. On the other hand, Sri Sura Venkata Sai Nath, learned Assistant Public Prosecutor, too concurred, with the submissions made the learned counsel for the petitioners that the Inspector of Police has no jurisdiction to investigate into the matter and it is only the Deputy Superintendent of Police who is authorized to conduct the investigation and cause seizure and follow the procedure contemplated under the Trade Marks Act. 6. Heard. Perused the record. 7. A perusal of charge sheet goes to shows that on 13.11.2015, on receiving credible information L.W.14 the Inspector of Police along with his staff and mediators rushed to Bharati Nagar, Plot No. 22 and at about 16.00 hours, there was a lady aged 35 years was present there on seeing the police party she tried to skulk away from there, L.W.14 stopped her with the assistance of his staff and on questioning her, she revealed her name as Boddu Lakshmi and confessed about her family history and stated that she got acquaintance with one phani of Teachers Colony who was previously indulged in manufacture of spurious ghee products and with dalda, rice bran oil, turmeric powder and original ghee and she is supervising the said activities and making arrangements for dispatch of spurious ghee and she stored packing covers at her house. She further lead the police party to Kanasanapalli road where A3 and A4 were engaged in preparing spurious ghee, who in turn confessed that on the instructions of A1 and A2 they are manufacturing the said products. After confession, she took LW14 to a room in the southern side, thereafter the Inspector of Police seized the material in the presence of mediators report. 8. The entire reading of charge sheet goes to show that the investigation is conducted by the Inspector of Police. It is not shown that the Inspector of Police is authorized to conduct the investigation and seize the material from the possession of the accused. 9. 8. The entire reading of charge sheet goes to show that the investigation is conducted by the Inspector of Police. It is not shown that the Inspector of Police is authorized to conduct the investigation and seize the material from the possession of the accused. 9. On reading of Section 115 (4) of the Trade Marks Act, goes to show that: 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 on hand, the Inspector of Police conducted investigation without there being any authorization so as to enable him to conduct investigation and seized the property from the possession of the accused. Hence, the act done by the investigating officer is not in accordance with law and quite contrary to the statutory provision under Section 115(4) of the Trade Marks Act. 11. The accusation made in the case on hand is that the accused are alleged to have manufacturing spurious ghee using dalda, rice ban oil and turmeric powder. The Trade Marks Act is a self-contained Act and any violation of the said act is punishable within the provisions of the said Act only. When such is the case, the said act invoking provisions of IPC is not tenable. 12. The High Court of Karnataka in decision reported in Syed Kaleem vs. M/s Mysore Lakshmi Beedi Works. Wherein it was held that: “8. When such is the case, the said act invoking provisions of IPC is not tenable. 12. The High Court of Karnataka in decision reported in Syed Kaleem vs. M/s Mysore Lakshmi Beedi Works. Wherein it was held that: “8. As regards the framing of a charge under section 420 of IPC., it has to be stated that in view of Sections 78 and 79 of the said Act providing penalty for applying false trade descriptions etc., and selling goods to which a false Trade Mark or false trade description is applied, a charge under section 420 of IPC becomes wholly inapt. Section 420 of IPC reads thus: “Cheating and dishonestly inducing delivery of property, - Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter of destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment or either description for a term which may extend to seven years and shall also be liable to fine.” Though there is an element of cheating in falsely applying to his goods the Trade Mark of another person or Company it cannot be said that such an act itself would attract Section 420 IPC. When there are specific provisions in the Trade and Merchandise Marks Act which is a self contained Act to punish the persons committing offences under the said Act, it would be improper to resort to Section 420 of IPC, altogether ignoring those provisions. It is not possible to make out from the impugned order how and on what material a charge was ordered to be framed against the accused for an offence under section 420 of IPC. 10. Chapter X of the Trade and Merchandise Marks Act, 1958 deals with offences, penalty therefor and the procedure relating thereto. Sections 76 and 77 are in the nature of definitions. Sections 78 to 83 prescribes the penalty for various offences. Sections 84 lays down the cases where no offence shall be deemed to have been committed under Sections 77 to 79. Section 89 provides for the procedure for, and the Court entitled to take cognizance of offences under sections 81 to 83. Sections 78 to 83 prescribes the penalty for various offences. Sections 84 lays down the cases where no offence shall be deemed to have been committed under Sections 77 to 79. Section 89 provides for the procedure for, and the Court entitled to take cognizance of offences under sections 81 to 83. The provisions analogous to the matters referred to in Chapter X were previously contained in the Indian Merchandise Marks Act, 1889, now repealed and incorporated in this Act. The provisions of this Chapter are aimed against false marking of goods and the application to goods of deceptive marks or deceptive Trade descriptions. The provisions relating to offences and penalties relating to Trade Marks were originally contained in Sections 478, 480, 482, 486 of the Indian Code relating to Trade Marks and property marks. The reference to Trade Marks in the said Sections was removed by the schedule under section 135 to the Act. Section 482 of IPC provides punishment for using a false property mark; whereas Section 486 provides punishment for counterfeiting property mark used by A Trade Mark as denied under section 2(1)(j) of the Trade and Merchandise Marks Act, 1958 means a mark in relation to the goods for the purpose of indicating a connection in the course of Trade between the goods and some person having the right to use that mark. On the other hand, a property mark under section 479 of IPC means a mark for denoting that a moveable property belongs to a particular person, whereas Trade Mark denotes manufacture or quality of goods to which it is attached, the property mark denotes the ownership in them. It is not clear either from the complaint or the impugned order whether the complainant had got his Trade Mark registered. However, in State of Uttar Pradesh v. Ramanath, the Supreme Court held that a Trade Mark includes a registered as well as unregistered Trade Mark and an offence under sections 78 and 79 therefore relates to a Trade Mark whether it is registered or unregistered. The offences under these Sections consist in deception and application of a Trade Mark which is in use and which signifies a particular type of goods contained in the Mark. 12. Section 482 Cr.P.C. deals with giving of inherent powers to High Court. The offences under these Sections consist in deception and application of a Trade Mark which is in use and which signifies a particular type of goods contained in the Mark. 12. Section 482 Cr.P.C. deals with giving of inherent powers to High Court. No doubt, it is well settled that the inherent power at an interlocutory stage should be exercised sparingly and with circumspection to correct patent illegalities or some miscarriage of justice is shown. In my view, the wrong approach to the case by the Court below is not only a patent illegality but it has resulted in miscarriage of justice. Hence I am of the view that this petition is maintainable.” 13. In so far as the provision under Section 63 of the Copy Right Act, goes to show that: 63. Offence of infringement of copyright or other rights conferred by this Act - Any person who knowingly infringes or abets the infringement of: (a) the copyright in a work. (b) any other right conferred by this Act except the right conferred by section 53A, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees: Provided that where the infringement has not been made for gain in the course of trade or business the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees. Explanation - Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section. 14. A perusal of Section 2 of the Copy Right Act, 1957 contemplates that, unless the context otherwise requires, the said act would not be applicable, except only in two cases, where if there is infringement of literacy of artistic work, the conversion of the work into a dramatic work by way of performance in public or otherwise. 15. Hence, the accusation that have been made against the petitioners herein would not in any way come within the purview of the Copy Right Act. 15. Hence, the accusation that have been made against the petitioners herein would not in any way come within the purview of the Copy Right Act. The accusation is only to the extent that the petitioners are alleged to have making spurious ghee products with dalda and rice bran oil. Except the said accusation, there is no other material so as to attract an offence under Section 63 of the Copy Right Act as against the petitioner. 16. Going by the charge sheet, the procedure contemplated as per the Trade Marks Act has not been followed in accordance with law. 17. In view of the aforesaid facts and circumstances, continuation of proceedings as against the petitioners herein and the petitioners to undergo the rigmorale of entire trial would nothing but abuse of process of Court. 18. Accordingly, the Criminal Petition is allowed and the proceedings in respect of the petitioners herein, in C.C. No. 315 of 2021 on the file of the learned IV Additional Chief Metropolitan Magistrate, Vijayawada, is hereby quashed. 19. Miscellaneous petitions pending, if any in this Criminal Petition, shall stand closed.