Kerala High Court
Noushad vs State Of Kerala on 13 August, 2014
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
WEDNESDAY, THE 13TH DAY OF AUGUST 2014/22ND SRAVANA, 1936
Crl.MC.No. 5385 of 2013 ()
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AGAINST THE ORDER/JUDGMENT IN CC 197/2013 of CHIEF JUDL.MAGISTRATE,
ERNAKULAM.
PETITIONER(S)/ACCUSED:
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NOUSHAD,
S/O. AZIZ, 'SAFRON', VEEKSHNANM ROAD,
ERNAKULAM.
BY ADVS.SRI.P.VIJAYA BHANU (SR.)
SRI.M.REVIKRISHNAN
SRI.P.M.RAFIQ.
RESPONDENT(S)/RESPONDENT:
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STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM. PIN-682 031.
BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
13-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 5385 of 2013 ()
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APPENDIX
PETITIONER(S)' EXHIBITS :
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ANX.A. TRUE COPY OF THE CHARGE SHEET IN CRIME NO. 1377/2013 OF
CENTRAL POLICE STATION, KOCHI CITY.
ANX.B. TRUE COPY OF THE SEIZURE MAHAZAR IN THE CASE ON HAND.
ANX.C. TRUE COPY OF THE SEARCH LIST IN THE INSTANT CASE.
RESPONDENT(S)' EXHIBITS : NIL.
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///TRUE COPY//
P.A TO JUDGE
amk
A.HARIPRASAD, J.
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Crl.M.C No.5385 of 2013
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Dated this the 13th day of August, 2014.
O R D E R
Petition filed under Section 482 Cr.P.C. Petitioner challenges the final report (Annexure A) in crime No.1377/2013 of Central Police Station, Kochi city. The offences revealed against the petitioner are punishable under Sections 103 and 104 of the Trade Marks Act, 1999. But the final report shows that the name of the Act is wrongly shown as Trade and Merchandise Marks Act, 1958. Admittedly, the incident happened on 03-07-2013. Therefore, the Trade Marks Act, 1999 is the relevant law as Section 159 of the Trade Marks Act, 1999 repeals the Trade and Merchandise Marks Act, 1958. Therefore, the law applicable on the date of the alleged offence is the Trade Marks Act, 1999.
2. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
3. Learned counsel for the petitioner submitted that a mere look at the final report will show that the same is not legally sustainable for want of competence of the officer who conducted Crl.M.C No.5385 of 2013 2 search, seizure and investigation. Learned counsel for the petitioner invited my attention to Section 115 of the Act of 1999 which reads as follows :
"115. Cognizance of certain offences and the powers of police officer for search and seizure.- (1) No court shall take cognizance of an offence under section 107 or section 108 or section 109 except on complaint in writing made by the Registrar or any officer authorised by him in writing :
Provided that in relation to clasue (c) of sub-section (1) of section 107, a court shall take cognizance of an offence on the basis of a certificate issued by the Registrar to the effect that a registered trade mark has been represented as registered in respect of any goods or services in respect of which it is not in fact registered.
(2) No court inferior to that of a Metropolititan Magistrate or Judicial Magistrate of the first class shall try an offence under this Act.
(3) The offences under section 103 or Crl.M.C No.5385 of 2013 3 section 104 or section 105 shall be cognizable.
(4) 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 seizure without warrant the goods, die, block, machine, plate, other instruments or things involved in committing the offence, wherever found, and all the artiles so seized shall, as soon as practicable, be produced before a Judicial Magistrate of the first class or Metropolitian 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.
(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 Metropolitian Magistrate, as the case may be, for such article being restored to Crl.M.C No.5385 of 2013 4 him and the Magistrate, after hearing the applicant and the prosecution, shall make such order on the application as he may deem fit. "
4. Sub-section (4) clearly shows that any police officer not below the rank of a deputy superintendent of police or equivalent may search and seize without warrant the goods, die, block, machine, plate etc. involved in the commission of offence whenever found. In this case, admittedly, the search, seizure and investigation was done by the Sub Inspector of Police, Central Police Station. Therefore, the prescription in the statute has been blatantly violated. For that reason alone the prosecution has to fail.
In the result, petition is allowed. The final report in crime No.1377/2013 in C.C No.197/2013 on the file of the Chief Judicial Magistrate Court, Ernakulam is hereby quashed. All pending interlocutory applications will stand dismissed.
Sd/-
A.HARIPRASAD,
amk JUDGE.