Crl. Misc. No. M-28377 of 2010 (O&M) [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M-28377 of 2010 (O&M) Date of Decision: May 24, 2011 Gurmukh Singh and another ........................ Petitioners Versus State of Punjab ......................................... Respondent Coram: Hon'ble Ms. Justice Ritu Bahri 1.To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Present: Mr. G.S.Sandhawalia, Advocate for the petitioners. Mr. Guninder S. Brar, AAG, Punjab. ... RITU BAHRI, J. (Oral) This petition under Section 482 Cr.P.C. is for quashing of FIR No. 141 dated 6.11.2009 registered at Police Station Lambra Tehsil and District Jalandhar under Section 63 of the Copyright Act, 1957, Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 and Section 420 IPC with all consequential proceedings. The aforesaid FIR has been registered at the behest of Sarabjit Singh Atwal, Mandi Officer Jalandhar alleging that the petitioners were using Trademark of some Crl. Misc. No. M-28377 of 2010 (O&M) [ 2 ] other firms on the bags of potatoes in order to send them to other States. Mr. G.S.Sandhawalia, counsel for the petitioners, has argued that no offence under the Copyright Act, 1957 is made out. This Act is applicable to the work of art which can be dramatic in nature or literary musical or work of Architecture, painting or sculpture etc. The provisions of Trade and Merchandise Marks Act, 1958 stands repealed and Trademarks Act, 1999 has been notified. No offence under the Trade and Merchandise Marks Act, 1958 is made out as it has been repealed. In the Trademarks Act, 1999, except on a complaint in writing made by the Registrar, no Court shall take cognizance of an offence under Sections 107, 108 and 109 of the Trademarks Act. As per Section 115 (4) no police officer below the rank of Deputy Superintendent of Police can search and seize the goods for offence under Sections 103, 104 and 105 of the Act. This procedure has not been adopted. Mr. Guninder S. Brar, AAG, Punjab, on the other hand, has argued that while checking the sale and purchase of transactions of potatoes being conducted by the petitioners, it was found that potatoes were sent to the other states with fake marks at Sampuran Cold Store. At the time of raid, four different logos of trademark were recovered and five gunny bags with different marks written on it were Crl. Misc. No. M-28377 of 2010 (O&M) [ 3 ] recovered. Recovery Memo is Annexure R1. A challan has been presented in the Court on 14.6.2010. The case is now fixed for framing of charge. The petitioners were found using false trademark and the offence under the copyright Act and Trademarks Act is made out. Heard learned counsel for the parties. It is not disputed that the petitioners are engaged in the business of sale and purchase of potatoes. They have been found using the trademarks of some other firms on the bags of potatoes. The question whether using of a trademark of some other firm would attract the provisions of Copyright Act has been considered by this Court in a case relating to sale of fake shoes and chappals of Adidas company (Crl. Misc. No. M-9229 of 2009 decided on 22.3.2011 Anil Kumar v. State of Punjab and another) . Fake shoes were sold at original prices and innocent people were being cheated. While conducting raid the fake shoes with the trademark of original shoes have been recovered. It has been held that no offence under Sections 63 and 65 of the Copyright Act is made out. The provisions of Copyright Act are attracted to original literary, dramatic, musical and artistic works; cinematograph films; and sound recording. Offence under Sections 78 and 79 of the Trademark and Merchandise Act, 1958 read with Section 420 IPC is non-cognizable and it could not be investigated by the police. It would be Crl. Misc. No. M-28377 of 2010 (O&M) [ 4 ] unreasonable to add Section 420 IPC for the same allegation. After coming into force the Trademarks Act, 1999, the complaint could be initiated by the Registrar and no officer below the rank of DSP could conduct the raid. The judgment in Anil Kumar's case (supra) is applicable to the present case. Criminal miscellaneous is allowed. FIR No. 141 dated 6.11.2009 registered at Police Station Lambra Tehsil and District Jalandhar under Section 63 of the Copyright Act, 1957, Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 and Section 420 IPC is quashed with all consequential proceedings arising therefrom qua petitioners. 24.5.2011 ( RITU BAHRI ) Rupi JUDGE