Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1960 Supreme(SC) 32

SUPREME COURT OF INDIA
9th February, 1960.
S.J. IMAM, K.N. WANCHOO AND J.C. SHAH, JJ.
The State of U.P., Appellant
Versus
1. Hafiz Mohd. Ismail (in Cr. A. No. 129 of 1957) and 2. Hafiz Jawed Ali (in Cr. A. No. 130 o0f 1957), Respondents.
Criminal Appeals Nos. 129 and 130 of 1957.
Advocates appeared
Mr. H. N. Sanyal, Addl. Solicitor-General of India (Mr. G. C. Mathur, Advocate and Mr. C. P. Lal, Advocate for Mr. G. N. Dikshit, Advocate, with him), for Appellant; M/s. Nuruddin Ahmad and Naunit Lal, Advocates, for Respondents.
Criminal Revns. Nos. 118 and 119 of 1955, D/- 13-7-1956 - All.

Advocates:
C.P.LAL, G.C.MATHUR, G.N.DIKSHIT, H.N.SANYAL, NAUNIT LAL, Nuruddin Ahmed

Resemblance between two things, such that a person might be deceived, is sufficient to constitute counterfeiting under Section 28 of the Indian Penal Code, even if the imitation is not exact.

Headnote:
INDIAN PENAL CODE - SECTION 486 - COUNTERFEIT TRADE MARKS - INTERPRETATION - RESEMBLANCE - DECEPTION - PRESUMPTION.
Fact of the Case:

The respondents were convicted under Sections 482 and 486 of the Indian Penal Code for selling counterfeit Sunlight and Lifebuoy soaps. The Magistrate and the Sessions Judge found that the labels and wrappers used on the soaps sold by the respondents were counterfeit of the genuine labels and wrappers of Sunlight and Lifebuoy soaps. However, the High Court acquitted the respondents holding that the labels and wrappers were not counterfeit but were mere colourable imitations of the genuine trade marks.
Finding of the Court:

The Supreme Court held that the High Court erred in holding that the labels and wrappers were not counterfeit. The Court held that the resemblance between the two sets of wrappers and labels was such that a person might be deceived. The Court also held that the differences in detail between the two sets of wrappers and labels did not affect the resemblance. Therefore, the Court held that the labels and wrappers recovered from the respondents' shops were counterfeit of the genuine wrappers and labels of the Sunlight and Lifebuoy soaps of the company.
Issues: Whether the labels and wrappers used on the soaps sold by the respondents were counterfeit of the genuine labels and wrappers of Sunlight and Lifebuoy soaps.
Ratio Decidendi: The Court held that the main ingredients of counterfeiting as laid down in Section 28 of the Indian Penal Code are (i) causing one thing to resemble another thing, and (ii) intending by means of that resemblance to practise deception or (iii) knowing it to be likely that deception will thereby be practised. The Court also held that Explanation 1 to Section 28 lays down that it is not essential to counterfeiting that the imitation should be exact. The Court further held that Explanation 2 to Section 28 lays down that where the resemblance is such that a person might be deceived thereby it shall be presumed until the contrary is proved that the person causing one thing to resemble another thing was intending by means of that resemblance to practise deception or knew it to be likely that deception would thereby be practised.
Final Decision: The Court allowed the appeals and set aside the acquittal of the respondents under Section 486 of the Indian Penal Code. The Court remanded the cases back to the High Court for disposal on the lines indicated above.

Judgment

WANCHOO, J. : These are two connected appeals by special leave against the judgment of the Allahabad High Court. The brief facts necessary for their disposal are these. One Bhagwan Swarup Saxsena, the Trade Marks Investigator, Lever Brothers Limited India (hereinafter called the company) was working in Lucknow an behalf of the company. He came to know that counterfeit Sunlight and Lifebuoy soaps were being manufactured and sold on a large scale in Yahiaganj and other places in Lucknow. This was investigated on behalf of the company which manufactured genuine Sunlight and Life-buoy soaps. It was found that two soaps factories in Luncknow were manufacturing counterfeit Sunlight and Lifebuoy soaps. It was also found that Hafiz Mohammad Ismail and Hafiz Jawed Ali who are the respondents in the two appeals before us were selling these counterfeit soaps in Yahiaganj where they have shops. Consequently a raid was made on the two shops with the help of the police on May 19, 1953. A large number of soaps were recovered from the two shops which were wrapped in labels said to be counterfeits of those in which the genuine Sunlight and Lifebuoy soaps of the company are sold. Consequently the two respondents were prosecuted under Ss. 482 and 486 of the Indian Penal Code.

2. The Magistrate found the case proved and held that the labels in which the respondents were selling soaps were counterfeit of the labels of genuine Sunlight and Lifebuoy soaps. He, therefore, convicted the respondents under Ss. 482 and 486 of the Code. The respondents went in appeal to the Sessions Judge but their appeals were dismissed. They then went in revision to the High Court. The High Court held that the cases did not fall within S. 482 of the Indian Penal Code and therefore acquitted them of the charge under that section. It further held that the labels or wrappers used on the soaps sold by the respondents could not be regarded as counterfeit of the genuine wrappers and labels of Sunlight and Lifebuoy soaps though they were colourable imitations of the same; it therefore acquitted them under S. 486 also, without going into the other points raised on behalf of the respondents. The applications of the State of Uttar Pradesh for a certificate to appeal to this Court having been rejected, the State applied for leave to appeal to this Court which was granted; and that is how the matter has come up before us.

3. The learned Additional Solicitor General appearing for the State has not pressed the appeals so far as the acquittal under S. 482 of the Code is concerned. The acquittal therefore under that section will stand. He has, however, strenuously urged that the view of the High Court that the wrappers and labels are not counterfeit but are mere colourable imitations of the genuine trade marks of the company is incorrect inasmuch as the High Court has not given full effect to the words of S. 486 in that behalf and the definition of counterfeit in S. 28 of the Indian Penal Code.

4. Section 28 is in these terms-

"A person is said to counterfeit who causes one thing to resemble another thing, intending by means of that resemblance to practise deception or knowing it to be likely that deception will thereby be practised.

Explanation 1. - It is not essential to counterfeiting that the imitation should be exact.

Explanation 2. - When a person causes one thing to resemble another thing, and the resemblance is such that a person might be deceived thereby, it shall be presumed, until the contrary is proved, that the person so causing the one thing to resemble the other thing intended by means of that resemblance to practise deception or knew it to be likely that deception would thereby be practised." The relevant part of S. 486 is in these terms-

"Whoever sells, or exposes, or has in possession for sale or any purpose of trade or manufacture any goods or things with a counterfeit trade mark or property mark affixed to or impressed upon the same or to or upon any case, pac

Click Here to Read the rest of this document