Surendra Yeshwant Karnik Vs the Senior Inspector of Police and Ors.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CRI. APPELLATE JURISDICTION

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 CRIMINAL WRIT PETITION NO. 1641 OF 2004

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 Mr. Surendra Yeshwant Karnik
 Sole Proprietor of
 M/s. Karnik & Associates,
 at A/3, Flat No.7,
 Dudh Sagar Co-op. Hsg. Society,
 Goregaon (E), Mumbai - 400 063. ... Petitioner

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V/s

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 1. The Sr. Inspector of Police,
 Vakola Police Station, Mumbai.

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 2. The State Of Maharashtra, Mumbai.

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 3. Kondibhau Pokharkar,
 102, Ramkrishna Niwas, 1st flr.,
 Gokhale Road, Dadar (West),
 Mumbai. ... Respondents

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 Mr. S.R. Chitnis with S.V. Kotwal for the petitioner.

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 Mr. B.H. Mehta, A.P.P. for the Respondent Nos. 1 & 2.

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 Mr. Rajeev Matkar for the Respondent No.3.

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CORAM: R.M.S. KHANDEPARKAR &
 P.V. KAKADE, JJ.

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DATED: 4TH APRIL, 2005

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ORAL JUDGMENT (Per Khandeparkar, J.):

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 1. Heard. Perused the record.

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 2. The petitioner challenges the F.I.R. No. 2 of 2004

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 recorded on 23.7.2004 at Vakola Police Station, Mumbai,
 pursuant to the order of the Magistrate dated 19.7.2004.
 The challenge is on limited ground that the grievance
 disclosed in the complaint filed by the respondent No.2
 does not disclose any offence punishable either under
 the Trade & Merchandise Marks Act, 1958 or Trade Marks
 Act 1999 and, therefore, the police could not have
 registered the F.I.R. in relation to the alleged
 offence punishable under Sections 78 & 79 of the Trade
 and Merchandise Marks Act, 1958. Simultaneously, the
 petitioner also challenges the powers of the Police
 Inspector to conduct the search and effect seizure of
 the goods alleged to be the goods seized in the course
 of investigation.

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 3. It is the contention of the petitioner that the
 Trade and Merchandise Marks Act, 1958 was repealed and
 Trade Marks Act, 1999, hereinafter called as "the Act of
 1999", came into force from 15.9.2003. It is the case
 of the petitioner that the facts alleged in the
 complaint nowhere reveal that the respondent No.2 is the
 holder of registered trade mark in respect of the mark
 in relation to which the complaint of infringement under
 the provisions of the Trade & Merchandise Marks Act,
 1958 has been filed and, therefore, considering the

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 provisions of Sec. 29 of the Act of 1999 read with Sec.
 189 thereof, the police could not have registered the
 F.I.R. in relation to the alleged offences under the
 Trade & Merchandise Marks Act, 1958 or under any
 provision of the Act of 1999. Besides, the search of
 premises and seizure of goods in the case in hand, in
 the course of investigation pursuant to the recording of
 the said F.I.R. was taken and effected on 23.7.2004

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 i.e. much after the date of coming into force of the
 Act of 1999 and therefore the provisions of Sec. 115
 (4) thereof were attracted and hence the Inspector of

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 Vakola Police Station who had carried out the search of
 the premises and seized the goods could not have done so
 being not of the rank of the Dy. Superintendent of
 Police.

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 4. Upon hearing the learned advocate for the parties
 and on perusal of the record, while the fact that
 respondent No.2 does not possess the registration
 certificate under the Trade & Merchandise Marks Act,
 1958 in relation to the mark in question, is being
 fairly conceded on behalf of the respondent No.2 and
 that, therefore, it is apparent that no F.I.R. could
 have been recorded nor investigation regarding the
 alleged offence either under the Trade & Merchandise

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 Marks Act, 1958 or under the Act of 1999 could be
 carried out.

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 5. As regards the search and seizure is concerned, it
 is sought to be argued that no fault can be found with
 the search of the premises or seizure of the goods as
 the same has been carried out by the Inspector of Police
 and in exercise of powers in relation to the search and
 seizure under Sec. 63 of the Copy Right Act, 1957. Any
 Sub-Inspector is entitled to exercise those powers and,
 therefore, there is no case for finding fault either
 with the search of the premises or the seizure of the
 goods. The contention is sought to be countered by the
 learned advocate for the petitioner submitting that the
 challenge to the search and seizure relates to one under
 Trade & Merchandise Marks Act, 1958 or the Act of 1999
 and the challenge is not relating to the search and
 seizure under the Copy Right Act, 1957.

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 6. Since there is no challenge to the search and
 seizure as far as it relates to the investigation under
 the Copy Right Act, 1957, certainly there is no need to
 consider the said issue in relation to the provisions of
 the Copy Right Act, 1957. Even otherwise, it would not
 be necessary to consider the contention sought to be

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 raised by and on behalf of the petitioner about the
 illegality of search and seizure, once it is apparent
 that the respondents fairly concede about the absence of
 the case for proceeding with the investigation in
 relation to the alleged offences either under the Trade
 & Merchandise Marks Act, 1958 or under the Act of 1999
 and further submits that the complaint would be
 restricted to the alleged offences alleged to have been
 committed under other statutes. Being so, it is not
 necessary to adjudicate upon the issues sought to be
 raised about the illegality regarding the said search
 and seizure on account of the fact that the same has
 been carried out and effected under the supervision of
 the Inspector of Police. In any case, such irregularity
 would not warrant interference in writ jurisdiction.
 Nothing prevents the parties to raise the necessary
 objection in that regard in the course of the
 proceedings before the concerned Magistrate or the
 concerned criminal court dealing with the matter in the
 case the chargesheet is filed against the parties.
 Suffice to observe that, in case of such objection is
 raised, the Court below will have to have due regard to
 the provisions of Sections 460 & 461 of the Cr.P.C.
 while deciding such objection.

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 7. For the reasons stated above, therefore, once it is
 conceded on behalf of the respondents that the
 allegations in the complaint are not sufficient to
 enable the police authorities to investigate as regards
 the alleged offences under Trade & Merchandise Marks
 Act, 1958 or the Act of 1999, the F.I.R. in question is
 not being challenged on any other ground, no relief in
 the nature asked for in the petition is called for
 except recording the said concession on behalf of the
 respondents. Hence, the petition is disposed of while
 recording the said concession on behalf of the
 respondents and the Rule is accordingly discharged with
 no order as to costs.

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 ( R.M.S. Khandeparkar, J. )

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 (P.V. Kakade, J.)

Surendra Yeshwant Karnik v. the Senior Inspector of Police and Ors.

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Surendra Yeshwant Karnik v. the Senior Inspector of Police and Ors.

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