Delhi District Court
Rupesh Dalmia vs The State (Govt. Of Nct Of Delhi) on 11 April, 2017
IN THE COURT OF DR. ASHISH AGGARWAL, ASJ-03,
(CENTRAL) TIS HAZARI COURTS: DELHI
CR No.74066/16
Rupesh Dalmia
S/o Sh.Rajender Dalmia
R/o H.No. 102, A Block,
Subham Market, Ramaprastha
Distt. Ghaziabad, U.P. ... Revisionist
Versus
The State (Govt. of NCT of Delhi) ... Respondent
Date of Institution: 06.08.2016
And
CR No.58370/16
Suraj Bhasin
S/o Late Sh. Kulbushan Bhasin
R/o RZ88/B, Santosh Park, Uttam Nagar,
New Delhi110059 ... Revisionist
Versus
State ... Respondent
Date of Institution : 05.08.2016
CR No.74066/16 Rupesh Dalmia Vs. State
CR No.58370/16 Suraj Bhasin Vs. State Page No.1 of 16
11.04.2017
ORDER
1. This order shall decide the revision petitions filed by revisionists Rupesh Dalmia and Suraj Bhasin assailing the order dated 30.6.2016 passed by ld. Chief Metropolitan Magistrate (Central). Since the revision petitions are connected and have been filed challenging the same order, they are decided together by this common order.
2. By the impugned order dated 30.06.2016, Ld. Chief Metropolitan Magistrate had ordered that charge be framed against the revisionists for the offence punishable under Section 104 of Trade Marks Act, 1999. Charge was accordingly framed.
3. A brief background is that the police filed the charge sheet before the Court of Ld. Chief Metropolitan Magistrate. It was mentioned in the charge sheet that a complaint had been preferred by an entity by the name of Enforcers of Intellectual Property Rights (EIPR) India Ltd. to the Deputy Commissioner of Police on CR No.74066/16 Rupesh Dalmia Vs. State CR No.58370/16 Suraj Bhasin Vs. State Page No.2 of 16 27.3.2015. In the said complaint, it was mentioned that some persons are selling counterfeit products of M/s Hewlett Packard Company. On the basis of the said complaint, a raiding team was prepared. A raid was carried out at shop No.1/53, behind Ram Mandir, Darya Ganj, Delhi. One Rupesh Dalmia was found at the shop. Counterfeit toners of M/s Hewlett Packard were recovered from the premises. On the basis of disclosure statement of Rupesh Dalmia, a raid was conducted at 9062, Multani Dhanda, Pahar Ganj. One Suraj Bhasin was found present there. Over there also counterfeit toners of Hewlett Packard company were recovered. Counterfeit products were seized. Charge sheet was filed for the offence under Section 63 of Copyright Act. On the basis of said charge sheet, charge was framed for the offence under Section 104 of Trade Marks Act, 1999.
4. By the present revision petitions, order of framing of charge has been assailed on the ground that investigation has not been conducted by the competent police officer. It is argued that under CR No.74066/16 Rupesh Dalmia Vs. State CR No.58370/16 Suraj Bhasin Vs. State Page No.3 of 16 Section 115(4) of Trade Marks Act, 1999, offence under Section 104 of Trade Marks Act has to be investigated by police officers of the rank of Deputy Supdt. of Police and above. It is further contended that since the charge sheet had been filed only for the offence under Section 63 of Copyright Act and there is no allegation of commission of offence under Section 104 of Trade Marks Act, 1999, the Ld. Trial Court could not have framed charge for the offence under Section 104 of Trade Marks Act, 1999.
5. On the other hand, Ld. Addl. PP for State has submitted that ld.
Trial court has rightly framed the charge. He has submitted that impugned order deserves to be sustained. It is argued that the objection of the revisionists is only technical and does not negate the correctness of the allegations.
6. I have heard arguments.
The record shows that in the complaint which was preferred by M/s EIPR, it was mentioned that counterfeit products are being CR No.74066/16 Rupesh Dalmia Vs. State CR No.58370/16 Suraj Bhasin Vs. State Page No.4 of 16 sold. This was followed by raids. As per allegations, counterfeit toners were recovered from the premises. Charge sheet mentions only offence under Section 63 of Copyright Act and not under Section 104 of Trade Marks Act, 1999. However, that does not preclude or prevent the court from examining, independently, whether any other offence has been committed. It is trite law that the court is not bound by the sections mentioned in the charge sheet. The court is not to act as per dictates of the police. It has to independently apply its mind to see whether the offence alleged to have been committed is supported by material on record and whether the said material points towards commission of any other offence. In this behalf, reference is made to the decision of Hon'ble Supreme Court in the leading case of Union of India vs. Prafulla Kumar Samal 1979 (3) SCC 4. In that case, the principles governing framing of charge were laid down. It was observed as follows:
"That the Judge while considering the question of framing the charges under Section 227 of the Code CR No.74066/16 Rupesh Dalmia Vs. State CR No.58370/16 Suraj Bhasin Vs. State Page No.5 of 16 has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial."
The Hon'ble Supreme Court went on to further hold as follows: "That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
7. Hence, it is concluded that notwithstanding the fact that the police had omitted to mention Section 104 of Trade Marks Act, 1999, in the police report, it was open to the court to frame charge for the said offence, if it is of the opinion that such offence is prima facie CR No.74066/16 Rupesh Dalmia Vs. State CR No.58370/16 Suraj Bhasin Vs. State Page No.6 of 16 demonstrated to have been committed. For this purpose, the court has to assess the material on record.
8. The next question is whether indeed the material on record points towards the commission of offence under Section 104 of Trade Marks Act, 1999 so as to justify framing of charge for the said offence. In this behalf, it would be apposite to refer to the seizure memos. The seizure memos show that the recovered toners were carrying the mark of HP Company. The said toners were found to be counterfeit. Section 104 of Trade Marks Act, 1999 provides punishment for exposing for sale or being in possession for sale of goods on which false trade mark or false description has been applied. Since the shops were having toners with false marks and description, offence under Section 104 of Trade Marks Act, 1999 is disclosed to have been committed. The material on record clearly shows that the accused persons/revisionists were in possession and control of shops. This is buttressed by the electricity and telephone bills which have been seized and the CR No.74066/16 Rupesh Dalmia Vs. State CR No.58370/16 Suraj Bhasin Vs. State Page No.7 of 16 statements recorded under Section 161 Cr.P.C.
9. It is settled law that at the stage of framing of charge, grave suspicion is sufficient to frame the charge. In this behalf reference is made to the decision of Hon'ble Supreme Court in the case of State of Orissa vs. Debendra Nath Padhi 2005 (1) SCC
568. In that case it was held as follows:
"At the stage of framing charge, the trial court is required to consider whether there are sufficient ground to proceed against the accused. Section 227 of the Code provides for the eventuality when the accused shall be discharged. If not discharged, the charge against the accused is required to be framed under Section 228."
In the case of State of Bihar vs. Ramesh Singh 1978 SCR (1) 257 it was held that at the stage of framing of charge it is not obligatory for the judge to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. At that stage, the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion, at the initial stage of framing of charge, is sufficient to frame CR No.74066/16 Rupesh Dalmia Vs. State CR No.58370/16 Suraj Bhasin Vs. State Page No.8 of 16 the charge and in that event it is not open to say that there is no sufficient ground for proceeding against the accused.
It was observed in the case of Rakesh Kumar Gupta vs. State 2010 (1) CC Cases (HC) 513 as follows:
"Thus at the time of framing of charge, the Court is not supposed to look into the evidence of the case in detail and is only to consider whether there is a strong suspicion against the accused on the basis of the material that comes before it. The court has the power to sift the evidence for the limited purpose of finding out, whether or not a prima facie case is made out against the accused. However, the Court is not supposed to delve deeply into the merits of the matter and start a roving expedition into the evidence that is brought forth it, as if conducting a trial. Further there is no one fixed definition that may be scribed to the term "prima facie" nor can the term "strong suspicion" have singular meaning. While coming to the conclusion of a strong prima facie case or strong suspicion, the Court shall have to decide each case on the basis of its own independent facts and circumstances."
10.It is held that the material on record in the present case prima facie demonstrates the commission of offence under Section 104 CR No.74066/16 Rupesh Dalmia Vs. State CR No.58370/16 Suraj Bhasin Vs. State Page No.9 of 16 of Trade Marks Act, 1999. The standard of grave suspicions laid down by judgments of superior courts has been met in this case. Charge for the said offence has been rightly framed by the ld. Chief Metropolitan Magistrate.
11.The other objection of the revisionists is that the case has not been investigated by the police officers of the rank of Deputy Supdt. of Police. According to the revisionists, a case under the Trade Marks Act can be investigated only by a police officer of the rank of ACP and above under Section 115(4) of Trade Marks Act.
12.Section 115(4) of Trade Marks Act reads as follows : "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 subSection (3) has been, is being, or is likely to be, committed, search and seize without warrant the goods, die, block, machine plate, other instrument 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."
It is clear from the above provision that powers of investigation have not CR No.74066/16 Rupesh Dalmia Vs. State CR No.58370/16 Suraj Bhasin Vs. State Page No.10 of 16 been exclusively conferred on the police officers of the rank of ACP and above. The only requirement is that if the police officer of the rank of ACP and above is satisfied that the offence has been committed, he may search and seize the infringing goods without warrant after obtaining opinion of Registrar. In the present case, the investigation was initiated on a complaint which was submitted by an organization. The said complaint did not mention any where that the offence under Section 104 of Trade Marks Act have been committed. It is only alleged commission of offence under Section 63 of Copyright Act. Hence, at that time, the police did not have reason to believe that offence under Trade Marks Act has been committed. Hence, Section 115(4) of Trade Marks Act did not come into play. It is stressed that the said provision only deals with search and seizure. It does not impose condition on investigation. It applies only if primafacie satisfaction is arrived at regarding commission of offence under the Trade Marks Act. In the present case, the police could not have anticipated this as the complaint received by them mentioned only offence under Copyright Act. CR No.74066/16 Rupesh Dalmia Vs. State CR No.58370/16 Suraj Bhasin Vs. State Page No.11 of 16
13. Yet, even if it is assumed that there has been contravention of Section 115(4) of Trade Marks Act, that is only a formal defect in seizure. It does not belie the correctness of the allegations. It does not show that toners have not been recovered or seized. The absence of investigation by a senior officer does not imply that the toners were genuine. Moreover, the law does not prescribe rank of the investigating officer. It only restricts the power to order seizure. The effect of irregularity or defect in seizure has to be seen and appreciated at the trial.
14. It is settled law even if there are defects or infirmities in investigation they do not vitiate the trial. It has to be to seen as to what prejudice has been caused to the accused. If there has been no prejudice, the defect is to be ignored, like in the present case. In the case of Hema Vs. State (2013) 10 SCC 192, it was held that merely because there are defects in investigation, the accused cannot be acquitted. In the case of C. Muniappan and Ors. v. State of Tamil Nadu, 2010 (9) SCC 567, it was held as follows:
CR No.74066/16 Rupesh Dalmia Vs. State CR No.58370/16 Suraj Bhasin Vs. State Page No.12 of 16 "There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."
Similar observations were made in the cases of Dayal Singh and Ors. v. State of Uttaranchal, 2012 (8) SCC 263 and Gajoo v. State of Uttarakhand, 2012 (9) SCC 532.
As an illustration, it needs to be observed there may be complaint cases alleging commission of offence under the Trade Marks Act. If the proposition of the revisionists is CR No.74066/16 Rupesh Dalmia Vs. State CR No.58370/16 Suraj Bhasin Vs. State Page No.13 of 16 accepted, it would imply that all complaint cases would automatically fail. In those cases, no investigation is carried out by any police officer. There is no seizure. That does not imply that the case is to be thrown out. In those cases also, the accused is to be put to trial and the complainant is to be granted an opportunity to prove the allegations. In the present case too, similarly, the absence of seizure by a competent officer does not mean that the accused is to be exonerated.
15.The last contention of the revisionists is that the prosecution cannot be sustained as opinion of the Registrar of Trade Marks has not been obtained. The said contention is not tenable. Even if opinion of Registrar has not been obtained, that does not affect the prosecution case. Such opinion is supposed to be a prelude to seizure. It is not condition precedent to the framing of charge by the Court. If the court otherwise has reasons to believe that an offence has been committed, it is open to the court to frame charge and to hold trial. This is clear from the fact that the CR No.74066/16 Rupesh Dalmia Vs. State CR No.58370/16 Suraj Bhasin Vs. State Page No.14 of 16 requirement of obtaining the opinion of the Registrar is not insisted upon by the punishing provision Section 104 of Trade Marks Act itself. It is only a procedural requirement which is to be observed before seizure of the goods by the police. The intention of the legislature is to prevent misuse of powers by the police by seizing goods which are not infringing in any manner. This view is fortified by the observations of Hon'ble High Court of Delhi in the case of Sanyo Electric Co. vs State Crl. Rev. P. No. 154/2010 decided on 30 August, 2010, wherein it was held that "Opinion of the Registrar of Trade Marks has to be given due weightage and consideration but will not be binding on the court." The Hon'ble High Court underlined the fact that it is optional for the court to obtain report of the Registrar of Trade Marks and that in clear cut cases the court may choose not to obtain opinion of the Registrar.
16.In light of the above reasons, the impugned order dated 30.6.2016 framing the charge against the accused persons is sustained. The revision petitions are dismissed.
CR No.74066/16 Rupesh Dalmia Vs. State CR No.58370/16 Suraj Bhasin Vs. State Page No.15 of 16
17.Trial court record be sent back to the court of ld. Chief Metropolitan Magistrate (Central) alongwith a copy of this order. The case shall be listed in the court of ld. Chief Metropolitan Magistrate (Central) on 26.4.2016 at 2.00 p.m. for proceeding with the trial. The revisionists shall appear before the Ld. Trial Court on the said date and time.
18. The cases are disposed off accordingly. Files of the revision petitions shall be consigned to record room.
Announced in open court on 11.04.2017 (ASHISH AGGARWAL) Addl. Sessions Judge03 (Central) Delhi CR No.74066/16 Rupesh Dalmia Vs. State CR No.58370/16 Suraj Bhasin Vs. State Page No.16 of 16