Jharkhand High Court
Vinod Kumar Choudhary And Anr vs The State Of Jharkhand And Anr on 5 January, 2015
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 3157 of 2013
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1. Vinod Kumar Choudhary , S/O Late Ram Baran Choudhary, resident of opposite Agricultural Marketing Yard, Pandra, Ratu road, P.O. Hehal P.S. Sukhdeonagar, Ranchi- 834005
2. Jambu Kumar Jain sole proprietor of proprietorship firm namely Gaurav Salt Suppliers and son of Sri Dharam Chand Jain resident of Nayahatta, Shital Kunj P.O;
P.S Dlatongunj, District Palamau, Jharkhand ..... .... Petitioners Versus
1. The State of Jharkhand
2. Bipul Tripathy son of Ram Lakhan Tripathy resident of Buddha Colony, 404, Taluka Apartment P.O. And P.S Buddha Colony, Patna, Bihar ..... .... Opposite Parties .....
CORAM: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY .....
For the Petitioner s : M/s. Anubha Rawat Choudhary
Karn Priya Choudhary, Advocate
For the State : A.P.P.
For Opposite Party No.2 : Mr. Bharat Kumar, Advocate.
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04/ Dated 5 January, 2015 th Heard learned counsel for the petitioners, learned counsel for the State and learned counsel for opposite party no.2.
In this application, the petitioners have prayed for quashing the entire criminal proceedings in connection with Kotwali (Pandra) P.S. Case No. 811 of 2013, corresponding to G.R Case No. 5064 of 2013, which was instituted under Section 420/34 of the Indian Penal Code and Sections 103 and 104 of the Trade Marks Act, 1999 (hereinafter to be referred to as the 'Act').
The prosecution story as it would appear from the F.I.R instituted by opposite party no.2 herein, who happens to be a Senior Manager of IDEA CELLULAR COMPANY, is to the effect that information was received that salt in the name of 'IDEA' was being sold at Ranchi from Shop No.3 Krishi Bazar Samiti, Pandra, Ranchi in the name of S. Kumar and Brothers which is owned by Vinod Choudhary (petitioner no.1). It is alleged that a raid was conducted in the said premises and 2 while interrogating Pramod Kumar Choudhary, it was informed to the police about Godown no. 226, which was situated in the premises of the Krishi Bazar Samiti and search was also made and consequent upon the said search, 125 gunny bags of salt in the name of IDEA was seized.
Based on the aforesaid seizure, a case was instituted against the accused persons including the petitioners being Kotwali (Pandra) P.S Case No. 811 of 2013.
Learned counsel for the petitioner has submitted that the petitioner No.1 is the retailer and he had purchased salt from the whole-seller i.e M/S Gourav Salt Suppliers of Daltonganj of which petitioner No. 2 is the sole proprietor. She has submitted that the institution of the first information report itself is bad and illegal in view of the fact that neither any offence under the Act is made out against the petitioners nor any offence under the provisions of Sections 420/34 of the Indian Penal Code is made out against the petitioners. Learned counsel for the petitioners has further submitted that Section 28 of the Act confer rights to the proprietor of the Trade Mark by registration and Section 29 of the 'Act' is with respect to infringement of registered trade mark and the same is infringed if a person not being registered proprietor or a person using by way of permitted use,uses in the course of trade, a mark which because of its identity and similarity with the registered trade mark of the goods or services is likely to cause confusion on the part of the public or which is likely to have an association with the registered trade mark. Learned counsel for the petitioners has accordingly submitted that the registration of the trade mark is linked to a particular goods or services which does not preclude any other registered proprietor from using the same.
In this connection, learned counsel has also referred to sections 28 and 29(2) of the Trade Marks Act, which specifically lays down as follows:-
"28. Rights conferred by registration- (1) Subject to the other provisions of this Act, the registration of a trade mark shall, if valid, give to the registered proprietor of the trade mark the exclusive right to the use of the trade marks in relation to the goods or services in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by this Act.3
(2) The exclusive right to the use of a trade mark given under Sub-section (1) shall be subject to any conditions and limitations to which the registration is subject.
(3) Where two or more persons are registered proprietors of trade marks, which are identical with or nearly resemble each other, exclusive right to the use of any of those trade marks shall not (except so far as their respective rights are subject to any conditions or limitation entered on the register) be deemed to have been acquired by any one of those persons as against any other of those persons merely by registration of the trade marks but each of those persons has otherwise the same right as against other persons ( not being registered users using by way of permitted use) as he would have if he were the sole registered proprietor.
29 (2) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of-
(a) its identity with the registered trade mark and the similarity of the goods or services covered by such registered trade mark; or
(b) its similarity to the registered trade mark and the identity or similarity of the goods or services covered by such registered trade mark; or (c ) its identity with the registered trade mark and the identity of the goods or services covered by such registered trade mark, is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark".
She therefore submits that using a brand named 'IDEA' with respect to a commodity which in this case is salt cannot be said to be an infringment of the provisions of the Trade Marks Act because the identity of the registration of trade mark and the similarity of the 4 goods or services which is provided by IDEA CELLULAR COMPANY and the commodity which is being sold by the petitioner can be by no stretch of imagination be said to cause any confusion in the mind of the public. She has also stated that the petitioner no.1 being the retailer and the petitioner no.2 being the whole-seller can in no way be made an accused in the present case because they were accordingly stocking and selling the salt which was received from the manufacturer. She has also stated that the Trade mark "IDEA" has been registered in different classes by a number of individual proprietorship concern, partnership concern, private limited companies and other manufacturers who manufacture several kinds of goods / commodities and which has no concern with each other and have been permitted to register their goods or commodities under the same brand name. She has further drawn my attention to section 115 of the Trade Marks Act, 1999 which envisages that no police officer below the rank of Deputy Superintendent police or equivalent shall conduct any search before obtaining the opinion of the Registrar, but in the present case, there is nothing on the record to suggest that the opinion as required under the Act was obtained from the registrar before the search and seizure of the premises were made by the Inspector of Police and in such circumstances, the present first information report is liable to be quashed with respect to offences under Sections 103 and 104 of the 'Act'. Learned counsel for the petitioners also submits that no ingredients of cheating has been made out and the offences with respect to Trade Marks Act, 1999 as well as Section 420/34 of the Indian Penal Code are interlinked and therefore the first information report is liable to be quashed in its entirety.
Learned counsel for the opposite party no.2, on the other hand, has submitted that after receiving information, search and seizure was made in the premises of the petitioners and packets bearing the name of IDEA salt was recovered from the premises which is a direct infringment on the trade mark of the IDEA CELLULAR COMPANY and therefore the provisions of the Trade Marks Act as well as Section 420/34 of the Indian Penal Code are applicable in the case of the petitioners.
After having heard the learned counsel for the petitioners and the learned counsel for opposite party no.2, I find that the only allegation which has been levelled against the petitioners is that they were selling salt by the name of "IDEA" which cannot be said to be an infringement of the Trade Mark of IDEA CELLULAR COMPANY because 5 the same can in no way be connected since the goods or commodities or services rendered are independent of each other. Moreover, Section 115 (4) of the 'Act' is a mandatory provision with respect to search and seizure which shall be by a police officer not below the rank of Deputy Superintendent of police or equivalent for any of the offences under Sections 103 or section 104 or section 105 of the Act. In the present case the first information report has been instituted for the offences punishable under Sections 103 and 104 of the Act and therefore the search and seizure in terms of Section 115(4) of the Act has not been carried out by a police officer not below the rank of Deputy Superintendent of Police. Rather the search and seizure has been carried out by the inspector of police which is contrary to the provisions of Section 115 (4) of the Act and therefore, search and seizure being illegal the criminal prosecution under the provisions of the Trade Mark Act cannot be allowed to continue. Even, otherwise, the proviso to 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 by opposite party no.2 and which has also not been controverted in the counter-affidavit filed on behalf of the State, the prosecution fails for such non-compliance also. With respect to the offences committed under Sections 420/34 of the Indian Penal Code the same appears to be in consonance with the allegations made under the provisions of the Trade Mark Act and the offences being directly interlinked with each other and since it has been held that no criminal prosecution can be allowed to be continued for the offences under the Trade Marks Act, the continuation of the proceedings under the Indian Penal Code also becomes a nullity. Moreover, the essence of 'cheating' having not been made out in the facts and circumstances of the case, the petitioner cannot be allowed to be prosecuted for the said offences Consequent to what has been discussed above, I do find merit in this application. Accordingly, this application is allowed and the entire criminal proceedings in connection with Kotwali (Pandra) P.S. Case No. 811 of 2013 corresponding to G.R Case No. 5064 of 2013 is hereby quashed.
(Rongon Mukhopadhyay, J.) Anjali