Crl.Misc.No.M-1315 of 2010 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc.No.M-1315 of 2010. Decided on: February 26, 2010. Deepak Jain and another .. Petitioners VERSUS State of Haryana .. Respondent * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI * * * PRESENT Mr.R.S.Cheema, Sr.Advocate, with Mr.R.K.Trikha, Advocate, for the petitioners. Mr.S.S.Gouripuria, DAG, Haryana. M.M.S. BEDI, J. (ORAL) Petitioner No.1, is owner of Durga Cement Private Limited, Narnaul, whereas petitioner No.2, is the Manager of said firm. Apprehending arrest in FIR No.302 dated 09.12.2009, registered under Sections 420 & 120-B IPC, read with Section 7, 10 and 55 of the Essential Commodities Act and under Sections 103 & 104 of the Trade Marks Act, at Police Station, Sadar, Narnaul, District Mahendergarh, they have filed this petition under Section 438 Cr.P.C. . . . 1 Crl.Misc.No.M-1315 of 2010 The above said FIR was registered on the basis of a secret information of a special informer to the effect that Tuli Rm driver was carrying spurious cement filled with various types of cement bags in truck bearing registration No.HR-47-A/6898, assisted by others to sell the same in Delhi and Haryana by misrepresenting the duplicate cement as genuine of different brands and thereby committed cheating with General Public. On the basis of said secret information, Sub Inspector Dharam Singh along with police officials apprehended the said truck and its driver near Surana turn of Narnaul Delhi Road and on checking it was found that cement having mark JK Super Cement, Birla Uttam Cement and J.K.Sarabsaktiman 43 Grade. The FIR was initially registered under Sections 420 & 120-B IPC and under Section 7 of the Essential Commodities Act. The accused namely Benami and Sandeep were arrested from Durga Cement Factory, Narnaul and another truck No.DL-I-M/1082, loaded with cement was also taken into police possession. At the instance of Benami, empty bags of different companies marked about 40000 were also recovered. Offence under Sections 103 & 104 of the Trade Marks Act, was added. Technical Officer of J.K.Cement disowned the cement to be that of J.K. Cement. 40000 empty bags of which 34000 bags were of Durga Cement Private Limited and 6000 empty bags of different companies were allegedly recovered from the premises of the petitioners. . . . 2 Crl.Misc.No.M-1315 of 2010 Mr.R.S.Cheema, Sr. Advocate, has argued that during the investigation offence under Sections 103 & 104 of the Trade Marks Act, has been added but as per provisions of Section 115(4) of the Trade Marks Act, no person below the rank of Deputy Superintendent of Police, can investigate the matter. The offence under Section 7 of the Essential Commodities Act, has been dropped. So far as the offence under Section 420 read with Section 120-B IPC, is concerned, there is absolutely no evidence collected indicating that any customer was cheated by pursuing him to part with money to sell cement which could be said to be spurious. After hearing the counsel for the petitioners, I am of the opinion that prima facie, offence under Section 7 of the Essential Commodities Act, is not made out. It will be debatable during trial if the offence under Section 420 IPC is made out. A perusal of the police file indicates that during the course of investigation on the complaint of J.K.Cement Company Limited, offence under Sections 103 & 104 of the Trade Marks Act, has been incorporated. Section 115 of the Trade Marks Act, lays down the procedure of taking cognizance of offence under Sections 107, 108 & 109 of the said Act. As per Section 115(1), of the said Act, a complaint has to be made in writing by Registrar or any official authorized by him. Though Section 115 (3) of the Act makes the offence under Sections 103, 104 & 105 of the Trade Marks Act, cognizable, but Section 115 (4) of the Act, prohibits any police officer below the rank of Deputy . . . 3 Crl.Misc.No.M-1315 of 2010 Superintendent of Police, to conduct and search and seize Die, Block, Machine and Plates etc. The record of the petitioners has already been taken into possession. They have joined investigation. The recoveries have already been effected. The propriety of the manner in which investigation has been taken in hand will be a moot point. In view of the totality of the above circumstances, the interim order dated 18.01.2010, is made absolute and it is ordered that in case of any arrest of petitioners, they will be released on bail on their furnishing bail bonds for sum of Rs.50,000/- each with one surety of like amount each to the satisfaction of Arresting Officer, subject to the following conditions: - That the petitioners will not leave India without prior permission of the Court; That the petitioners will not commit the similar offence of which they are accused of during pendency of the trial; and That the petitioners will not tamper with the evidence or hamper the investigation, in any manner. It is made clear that in case of violation of any of the above conditions, the prosecution agency will be entitled to seek the cancellation of bail. Disposed of. (M.M.S.BEDI) JUDGE February 26, 2010. rka . . . 4 Crl.Misc.No.M-1315 of 2010 . . . 5