Madhya Pradesh High Court
Pitambra Industries Thr. vs The State Of Madhya Pradesh on 3 April, 2018
1
THE HIGH COURT OF MADHYA PRADESH
W.P. No. 6644/2018
Pitambara Industries
Vs.
State of M.P. and others
Gwalior, 03/04/2018
Shri Sunil Jain, learned counsel for the
petitioner.
Shri Yogesh Chaturvedi, learned Government
Advocate for the respondents/State.
Petitioner, a sole proprietorship concern, manufactures putty dyes, paint and varnish under the brand name Maha Utsav. The brand name is not registered under the Trade Marks Act, 1999 nor under the Copy Right Act, 1957.
That a written complaint was lodged by one Mahesh Adan of Torque Detective that in Girwai Putty similar to Birla White Wall Putty is manufactured and sold in the bags resembling Birla White Bags. An offence was registered vide Crime No. 0069/2018 under Sections 103 and 104 of the Trade Marks Act, 1999 at PS Girwai. Raid was conducted in the premise of the petitioner unit wherein 90 bags of 40 KGs and 20 bags of 17 KGs 2 filled bags and 70 empty bags of 40 KGs and 50 empty bags of 17 KGs resembling the bags of Birla White Cements and other materials used for manufacturing of the putty were seized, and the factory was sealed.
That by another complaint lodged on 15/03/2018 by one Harish Chandra on behalf of Asian Paints offence under Section 51 and Section 53 of Copy Right Act, 1957 was registered vide Crime No. 0070/2018. That certain seizures were made from Deepak Shrivastava.
Present Writ Petition is filed for direction to open the lock and seal affixed to the factory. It is urged that even if an offence under Section 103 and Section 104 of the Trade Marks Act, 1999 which are cognizable offences, is registered and the police officer not below the rank of Deputy Superintendent of Police is competent under sub-section (4) of Section 115 of 1999 Act to search and size without warrant, yet such an officer is under an obligation as stipulated in the proviso to sub-section (4) of Section 115 of 1999 Act to obtain opinion of the 3 Registrar of Trade Marks before making any search and seizure. It is urged that as no such opinion had been sought by the officer concerned before search and seizure, the entire process stands vitiated. On these submissions, petitioner seeks direction to open the lock.
Sub-section (5) of Section 115 of 1999 Act stipulates:-
"(5) Any person having an interest in any article seized under sub-section (4), may, within fifteen days of such seizure, make an application to the Judicial Magistrate of the first class or Metropolitan Magistrate, as the case may be, for such article being restored to him and the Magistrate, after hearing the applicant and the prosecution, shall make such order on the application as he may deem fit."
Since the petitioner has a statutory alternative remedy for restoration where he can raise the grounds available to him, this Court refrains from causing any indulgence. Instead, the petitioner is relegated to avail remedy under Section 115(5) of 4 1999 Act.
The petition is finally disposed of in above terms. No costs.
(Sanjay Yadav) Judge shubh* Digitally signed by SHUBHANKAR MISHRA Date: 2018.04.05 10:27:02 +05'30'