Delhi District Court
State vs Yogender Singh on 25 February, 2020
IN THE COURT OF SH. ATUL KRISHNA AGRAWAL, ACMM (NW)
ROHINI COURTS, DELHI
FIR No. : 22/2006
PS: : Adarsh Nagar
Offence Complained of : u/s 103/104 of Trade Marks Act.
Date of commission of Offence : 11.01.2006
Case No. : 538453/2016
STATE VS YOGENDER SINGH
(1)Yogender Singh
S/o Iiam Singh,
R/o House No. 2864,
BlockEE, Jahangirpuri,
Delhi.
......................Accused No. 1
(2)Naveen Sharma
S/o Subhash Sharma
R/o P195, Krishna Vihar,
Budh Vihar, Delhi.
(since already convicted in plea bargaining)
......................Accused No. 2
Kamal Malhotra
S/o Sh. Inder Malhotra,
R/o House No. 454,
Khari Bauli, Delhi
................Complainant
FIR No. 22/06 PS Adarsh Nagar State Vs.Yogender Singh & Anr. Page no.1 of 14
Date of Decision : 25.02.2020
Date of Institution : 20.02.2007
Plea of the accused : Pleaded not guilty
Date of reserving judgment/order : 20.02.2020
Date of pronouncement : 25.02.2020.
Final order : ACQUITTED
Brief reasons for the decision of the case:
1.In brief, the story of the prosecution is that a complaint from one Kamal Malhotra, AR of M/s Sterling Agro Industries was received at PS Adarsh Nagar, regarding manufacture and sale of huge quantity of spurious and duplicate products of the above company, which was manufacturing and selling its goods under the brand name of "Nova". Initially, no FIR was registered but pursuant to orders of the Ld. Predecessor of the court on application u/s 156 (3) Cr.P.C., the present FIR was registered for offences u/s 103/104 Trade Mark Act. The court had also passed orders u/s 91 Cr.P.C. for search and seizure of such spurious products. Thereafter on 11.01.2006, at about 12:15 PM, complainant Kamal Malhotra came to the office of Trade Mark section of Economic Offences Wing and informed about such spurious products being manufactured, stored and sold at Ground floor of House no.C17/1, New Acharya Kriplani Marg, New Cottage Road, Adarsh Nagar, Delhi, by accused Yogender Singh. Accordingly, one raiding party comprising of IO/SI Suraj Prasad, SI Amit, SI Sanjay, complainant Kamal Malhotra and other police officials was prepared to conduct the raid at the aforesaid premises.
FIR No. 22/06 PS Adarsh Nagar State Vs.Yogender Singh & Anr. Page no.2 of 14 Date of Decision : 25.02.2020
2. The raiding party raided the premises which was in possession of accused Yogender Singh and found huge stock of items suchas 1080 pieces of empty plastic bags with falsified trademark of Nova, 370 pieces of half litre empty plastic jar, 41 pieces of one litre plastic jar, 958 pieced of blue plastic caps of above jars bearing falsified trade mark "Nova" engraved, 1038 pieces of blue plastic caps of plastic jars plain, 33 plastic jars filled with Ghee, 2 bottles of fragrance and utensils used in preparation of spurious products. Another raid was conducted at the premises of coaccused Naveen Sharma (since convicted on plea bargaining) at house no. P195, Krishna Vihar, Budh Vihar, Delhi, at the instance of accused Yogender. Several other spurious and fake items suchas 540 pcs of round foil seal, 193 pcs of wrapper lamination sheets with falsified trade mark of "Nova", iron dyes, etc. were recovered from his premises. Accused persons failed to produce licence or authority under which those products were being prepared by them. They were arrested and after completion of investigation, Charge sheet was filed against accused persons for the same offences on 20.02.2007 and cognizance of offences was also taken on the same date.
3. Charge was framed against the accused persons for the offences punishable u/s 103/104 Trademark Act on 30.10.2010 to which both of them pleaded not guilty and claimed trial. Accused Naveen however preferred plea bargaining during the pendency of trial and was convicted vide order dated 06.06.2012 by the Plea Bargaining Court and thereafter, the case proceeded only against present accused Yogender.
FIR No. 22/06 PS Adarsh Nagar State Vs.Yogender Singh & Anr. Page no.3 of 14 Date of Decision : 25.02.2020
4. During PE, seven witnesses were examined by the prosecution.
5. PW1 ASI Pushpa is the duty officer. She deposed on 11.01.2006, she received a rukka through Ct. Raj Singh sent by SI Suraj Prasad and on the basis of the same, she registered the present FIR. Carbon copy of the same is Ex.PW1/A. She also made an endorsement on the rukka which is Ex.PW1/B.
6. PW2 is Sh. Sanjay, an official witness. He deposed that he was working in Trade Mark Registry as MTS (Multi Tasking Staff). He brought the certificate no.266430 regarding the Trade Mark no.566187 in respect of M/s Sterling Agro Industry Ltd., which is Ex.PW2/A. The registration was valid upto 24.01.2019.
7. PW3 Sh. Kamal Malhotra is the complainant. He deposed that he was working in M/s Sterling Agro Industry Ltd. since 1998, having its corporate office at 3rd floor, 45A Khari Bawli, Delhi. On 11.01.2006, he went to Trade Mark/Section/EOW/Crime Branch/PHQ in pursuance of order u/s. 156(3) Cr.P.C and search warrants u/s.93 Cr.P.C issued by the court of the then Ld. ACMM, Tis Hazari Courts, in the matter of M/s Sterling Agro Industry Ltd. Vs Unknown. The complaint is Ex.PW3/A. The information was got verified by the police and found correct. After that IO/SI Suraj Prasad made an endorsement on Ex. PW3/A and sent it for registration of FIR through Ct. Raj Singh to PS Adarsh Nagar.
8. The witness further deposed that a raiding party was prepared including SI Sanjay Sharma, SI Amit Issar, HC Satbir Singh, other police officials and him (this witness). At about 1:15 PM, the raiding party reached in FIR No. 22/06 PS Adarsh Nagar State Vs.Yogender Singh & Anr. Page no.4 of 14 Date of Decision : 25.02.2020 front of FSO office near Azadpur Sabzi Mandi, GTK Road. IO asked six persons to join the proceedings but all of them left the spot without disclosing their names and addresses. Thereafter without wasting any time, at about 1:40 P.M., the raiding party reached at C17/I, Ground floor, New Acharya Kriplani Marg, Adarsh Nagar, where they met one person who introduced himself as the owner. He was arranging plastic carts of ghee on which Nova was engraved. On inquiry, his name was revealed as Yogender Singh i.e. accused herein. Thereafter in the presence of accused Yogender, the search of the room was carried out. In search, the following duplicate products bearing falsely trade mark "Nova" and manufacturing aids were recovered from the room:
a) 1080 pieces of little plastic jar (empty) bearing the false trade mark "Nova" engraved on the bottom of the jar. These jars were put in 17 gunny bags and given serial no.1 to 17.
b) 370 pieces of half litre plastic jar (empty) without any marking, put in 3 gunny bags and given serial no.18 to 20.
c) 41 pieces of one litre plastic jar without any marking, put in 1 gunny bags and given serial no.21.
d) 958 pieced of blue plastic caps of above jars bearing falsified trade mark "Nova" engraved and put in 1 gunny bag and given serial no.22.
e) 1038 pieces of blue plastic caps of plastic jars plain, put in 2 gunny bags and given serial no.2324.
f) 33 pieced of 1 litre filled plastic jar duly packed in packaging bearing falsified mark of "Nova" and five pieces of five litre filled jars plain with FIR No. 22/06 PS Adarsh Nagar State Vs.Yogender Singh & Anr. Page no.5 of 14 Date of Decision : 25.02.2020 "Nova", out of which 3 pieces of one litre each were covered with white cloths and pullanda made individually and marked as Mark S1, S2, S3 and rest were put in a 1 gunny bag and given serial no.25.
g) 2 bottles of BD essence for fragrance, 125 pieces wrappers, laminated plastic sheets bearing fabricated trade mark "Nova", 465 seal foils bearing the fabricated trade mark "Nova", 2 hot air guns and 2 electric irons made for packing the jars with wrappers, 1 hand press, 1 local machine for sealing tin, put in one gunny bag and given serial no.26.
h) 1 big patila, 1 small patila, 1 steel jug and one 5 litre measuring jug all used for mixing and filling the jars put in 1 plastic bag and given serial no.27.
9. The witness further deposed that the above recovered duplicate products and manufacturing material and packing material were taken into police possession through seizure memo. Gunny bags/plastic bags were given serial no.127 and sample bag was given serial no.13 and they were sealed with the seal of SP. The seizure memo is Ex.PW3/B.
10. The witness further deposed that he was part of another search party of police and they went to house no.P195, Krishan Vihar, Budh Vihar, Delhi, from where certain other case property was seized as per seizure memo Ex.PW3/C. The accused persons Naveen (since convicted on plea bargaining) and accused Yogender were arrested and personally searched vide memos Ex. PW3/D1 to Ex. PW3/D4 respectively. The disclosure statement of accused persons Yogender and Naveen were recorded vide memo Ex.PW3/E1 and Ex.PW3/E2 respectively. The witness had also FIR No. 22/06 PS Adarsh Nagar State Vs.Yogender Singh & Anr. Page no.6 of 14 Date of Decision : 25.02.2020 signed on seal handing over memo Ex.PW3/F. It is pertinent to mention that upon inspection of the case property produced before Court, it was found that one iron dye was in unsealed condition while the rest of the case property was found with the seal of SP in gunny bags which were in dilapidated condition, reflecting no case particulars or any serial number as per the seizure memos. The case property was correctly identified by the witness.
11. PW4 is Inspector Sushil Kumar, who deposed that on 13.07.2006, the further investigation of the present case was marked to him on the instructions of senior officers. On 28.08.2006, he called accused Naveen Sharma (since convicted on plea bargaining) at EOW Office, Qutub Institutional Area. Accused Naveen produced the photocopy of his driving licence, photocopy of his election Id card and photocopy of ration card, which were seized vide seizure memo Ex.PW4/A. The photocopies of above documents are marked as Mark A, Mark B and Mark C. On 24.08.2006, he also examined Bijender Singh, the owner of premises no.C17/1, New Acharya Kriplani Marg, Adarsh Nagar, Delhi and also collected photocopy of GPA, Agreement to sell, and receipt in favour of Bijender Singh. He recorded statement of Bijender Singh Mark X wherein he stated that he will produce the original in the court at the time of his testimony. The documents are Mark D (Colly.). After that, further investigation was marked to Inspector Tika Ram.
12. PW5 is Sh. Vivek Kesarwani, who deposed that on 09.05.2005, he as director of M/s Sterling Agro Industry Ltd., executed Authorization letter FIR No. 22/06 PS Adarsh Nagar State Vs.Yogender Singh & Anr. Page no.7 of 14 Date of Decision : 25.02.2020 in favour of Mr. Kamal Malhotra to initiate legal action on behalf of company. Kamal Malhotra was given special training by company to distinguish between real and duplicate products of the company. Said authorization letter is Ex.PW5/A.
13. PW6 is Retd. Ct. Raj Singh. He deposed that on 11.01.2006, he was posted as constable in Trade mark section of EOW. On that day, IO/SI Suraj Prasad gave one tehrir to him for registration of FIR and he got the FIR registered.
14. PW7 ASI Satbir Singh, deposed that on 11.01.2006, he was posted as head constable in Trade mark section of EOW. On that day, at about 12:15 PM, complainant Kamal Malhotra came to their office. One raiding party comprising of SI Suraj Prasad, SI Amit, SI Sanjay, complainant, him (this witness) and some more police officials was prepared. At about 12:15 PM, they departed from their office and at about 1:15 PM, reached near FSO office, near Azadpur Mandi on GTK road. IO/SI Suraj Parshad briefed the members of raiding party that adulterated ghee of NOVA company was being prepared and for that purpose the raiding party was prepared. IO requested 4/5 public persons to join investigation but none of them agreed and left the spot without disclosing their names and addresses. Without wasting any time, they entered premises no. C1/7, Adarsh Nagar. Inside the ground floor of the premises, they met accused namely Yogender Singh and he introduced himself as the owner of that manufacturing unit. In the presence of accused, members of raiding party started searching the above said place.
FIR No. 22/06 PS Adarsh Nagar State Vs.Yogender Singh & Anr. Page no.8 of 14 Date of Decision : 25.02.2020 At the said place, 1080 pieces of empty plastic bags with falsified trademark of Nova, 370 pieces of half litre plastic jar (empty) without any marking, 41 pieces of one litre plastic jar without any marking, 958 pieced of blue plastic caps of above jars bearing falsified trade mark "Nova" engraved, 1038 pieces of blue plastic caps of plastic jars plain, 33 plastic jars filled with Ghee, 2 bottles of fragrance, 1 small and one big utensil and one jug were recovered. All gunny bags were sealed with the seal of SP. Case property was seized vide seizure memo Ex.PW3/B. Yogender Singh was arrested by IO. Accused Yogender told that he was manufacturing all above said items with one person namely Naveen Kumar residing at P195, Krishan Vihar, Budh Vihar. At about 5:15 M., all the members of raiding party went to above said house of Naveen Kumar, where, accused Yogender pointed towards a person as Naveen and he was apprehended by IO. The room of accused Naveen was searched by IO and from his room, many other articles were recovered. Rest of the evidence of this witness pertained to accused Naveen, (since convicted on plea bargaining), hence the remaining evidence being not relevant, is not reproduced. The accused Yogender and the case property was correctly identified by the witness.
15. No other witness was examined by the prosecution. Thereafter PE was closed. The statement of accused u/s 313 Cr.P.C. r/w 281 Cr.P.C., was recorded on 17.02.02020, wherein he claimed to be innocent and falsely implicated in this case. No DE was led.
16. Final arguments were addressed from both sides. I have now perused the FIR No. 22/06 PS Adarsh Nagar State Vs.Yogender Singh & Anr. Page no.9 of 14 Date of Decision : 25.02.2020 evidence on record and also considered the rival arguments from both sides.
17. The accused is charged for offences u/s 103 and Sec 104 of Trademarks Act which read as under : Section 103. Penalty for applying false trade marks, trade descriptions, etc.-- Any person who--
(a) falsifies any trade mark; or
(b) falsely applies to goods or services any trade mark; or
(c) makes, disposes of, or has in his possession, any die, block, machine, plate or other instrument for the purpose of falsifying or of being used for falsifying, a trade mark; or
(d) applies any false trade description to goods or services; or
(e) applies to any goods to which an indication of the country or place in which they were made or produced or the name and address of the manufacturer or person for whom the goods are manufactured is required to be applied under section 139, a false indication of such country, place, name or address; or
(f) tampers with, alters or effaces an indication of origin which has been applied to any goods to which it is required to be applied under section 139; or
(g) causes any of the things abovementioned in this section to be done, shall, unless he proves that he acted, without intent to defraud, 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 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.
18. Sec 104 Trademarks Act reads as under : Section 104. Penalty for selling goods or providing services to which false trade mark or false trade description is applied.--Any person who sells, lets for hire or exposes for sale, or hires or has in his possession for sale, goods or things, or provides or hires services, to which any false trade mark or false trade description is applied or which, being required under section 139 to have FIR No. 22/06 PS Adarsh Nagar State Vs.Yogender Singh & Anr. Page no.10 of 14 Date of Decision : 25.02.2020 applied to them an indication of the country or place in which they were made or produced or the name and address of the manufacturer, or person for whom the goods are manufactured or services provided, as the case may be, are without the indications so required, shall, unless he proves,--
(a) that, having taken all reasonable precautions against committing an offence against this section, he had at the time of commission of the alleged offence no reason to suspect the genuineness of the trade mark or trade description or that any offence had been committed in respect of the goods or services; or
(b) that, on demand by or on behalf of the prosecutor, he gave all the information in his power with respect to the person from whom he obtained such goods or things or services; or
(c) that otherwise he had acted innocently, 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 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.
19. Having appreciated the evidence on record, in my considered opinion, the case of prosecution is not proved for the following reasons:
a) As per the prosecution, the complainant PW3 was very much part of the raiding party which conducted raid at the premises of accused Yogender. However PW3 resiled from his statement. In his examination in chief, he stated that he was part of the raiding party which had recovered the duplicate/fake products of NOVA as well as manufacturing equipments and other articles used to prepare it, however in his crossexamination, he completely denied this fact and stated that he was not part of the raiding party. He voluntary added that he had been called at the police station FIR No. 22/06 PS Adarsh Nagar State Vs.Yogender Singh & Anr. Page no.11 of 14 Date of Decision : 25.02.2020 where he identified the case property. He also stated that he did not know about the details of the raiding party. This casts shadow of doubt on the entire search and seizure operation.
b) In view of the above fact, the seizure memo Ex. PW3/B and other documents regarding search and seizure, which bear the signatures of PW3, become suspicious and unreliable since they were all prepared at the spot as per prosecution but PW3 denies being part of the raiding party. Similarly, the seal handing over memo Ex. PW3/F was also prepared at the spot as per prosecution after the case property was seized and sealed and seal was handed over to PW3 after its use but since PW3 did not join raiding party, it is apparent that his signatures were obtained later on, making even this document as unreliable.
c) It is further pertinent to mention that as per the prosecution, accused was arrested vide Ex. PW1/D1 and his personal search was conducted vide Ex. PW1/D2 at the spot itself. These documents also bear the signatures of PW3.
However PW3 states that he did not know the contents of the above documents. He further stated that he came to know about the present case when he was called at the PS and he also signed some documents at the PS. This again contradicts the prosecution case.
FIR No. 22/06 PS Adarsh Nagar State Vs.Yogender Singh & Anr. Page no.12 of 14 Date of Decision : 25.02.2020
d) It is further worth stating that the case property allegedly recovered from accused has not been proved. It has come on record that at the time of production of case property in gunny bags, they did not bear any FIR No. or any serial no. or any other detail from which it can be ascertained that the same pertained to this case. As per PW3 and PW7, the case property were given proper serial numbers at the time of seizure but the same was not found mentioned. Furthermore the iron dye allegedly recovered, was produced in an unsealed condition before court. The other case property was in dilapidated condition. All this creates more than a shadow of doubt on the prosecution case.
e) There is no rent agreement or any other document placed on record by the IO to show in which capacity the accused was in possession of the premises from where alleged recovery was effected. The prosecution also failed to examine Bijender Singh, who was the alleged owner of the said premises.
f) Further nothing has come on record to prove as to how the prosecution concluded that the goods recovered from the accused were found to be spurious and fake products. There is no FSL report or the report of any other expert or specialist which can prove this fact.
g) Lastly, there is no departure entry placed on record by the FIR No. 22/06 PS Adarsh Nagar State Vs.Yogender Singh & Anr. Page no.13 of 14 Date of Decision : 25.02.2020 IO which can prove that the police officials did proceed to conduct the said raid, on the date and time as stated and at the premises of accused.
20. My above observations and findings clearly points that the prosecution has not been sufficiently able to prove that the goods and articles were infact recovered from the possession of the accused and even if recovered, whether the same were fake and spurious and violated provisions of Trademark Act. Accordingly, accused Yogender Singh is hereby acquitted from offences punishable u/s 103/104 Trademarks Act.
Ordered Accordingly. File be consigned to Record Room.
Announced in open court on Dated: 26.02.2020 (ATUL KRISHNA AGRAWAL) ACMM/NORTHWEST/ROHINI COURTS 26.02.2020 FIR No. 22/06 PS Adarsh Nagar State Vs.Yogender Singh & Anr. Page no.14 of 14 Date of Decision : 25.02.2020