The offences under section 63 of the Copyright Act and section 103 of the Trade Marks Act are non-bailable. The provisions of section 115(4) of the Trade Marks Act regarding obtaining the opinion of the Registrar before search and seizure do not apply when the accused used the exact trademark registered in favor of the complainant's company.

JUDGMENT :

Sarang V. Kotwal, J.

1. The Applicant is seeking anticipatory bail in connection with CR. No. 865 of 2020 registered with Mohol Police Station, Solapur, District Solapur, under sections 418, 465, 482, 483, 485, 486, 488 r/w 34 of the Indian Penal Code (for short 'IPC') and under section 63 of the Copyright Act, 1957. Subsequently section 103 of the Trade Marks Act, 1999 is also applied.

2. The First Information Report (for short 'F.I.R.) is lodged by one Prakash Gore. He was a Zonal Manager of Jain Irrigation System. His company received complaints that substandard goods in the name of their company were sold in the market. The informant received a secret information that one Eicher truck bearing No. GJ03/BV-9840 was carrying goods in the name of the complainant's company which actually were not genuine goods. That vehicle had started from Gujarat and was going towards Karnataka. On 19/12/2020, at about 4:00 p.m. the informant and his associates saw that vehicle. They made inquiries with the driver Jeevan about the goods. He informed that the goods were loaded from Tera-flow company Ribda and he was going to Chadchan. He showed invoices. The invoice mentioned four different HDPE pipes worth Rs. 94,485/-. The informant physically saw those goods. He saw that some goods were bearing mark 'Jain HDPE' bearing stamp of CML (Certificate of Manufacturing Licence) 7018761. That stamp was a forged stamp. The goods were being transported and sold using fake trademark and, therefore, he lodged this F.I.R. The investigation was carried out and the goods were seized.

3. A few legal questions arose while deciding this application. Therefore, I have heard Shri. Mandar Soman, learned counsel for the applicant, Shri. Ajay Patil, learned APP for the State. Shri. Aniket Nikam, learned counsel was requested to assist the court for deciding a larger issue as to whether offences punishable upto three years were bailable or non bailable.

4. First point for consideration was whether the offence under section 63 of the Copyright Act and also subsequently applied section 103 of the Trade Marks Act were bailable or non bailable. Shri. Soman invited my attention to the order passed by the learned Magistrate, wherein the co-accused were granted bail on the ground that, section 418 of I.P.C., was bailable and, therefore, bail was granted to the co-accused. Perusal of that order shows that the learned Magistrate has only referred to section 418 of IPC. He has not considered application of section 63 of the Copyright Act and section 103 of the Trade Marks Act. Shri. Soman claimed parity with co-accused in this case. The allegations against the applicant are that, he was manufacturing all these pipes and at his instance the pipes were being transported and sold. The investigation papers produced by Shri. Patil before me showed photographs of those pipes which bore the aforementioned name and registration number of the trademark of complainant's company. Therefore, the first question which needs to be addressed and decided is to whether the offence punishable under section 63 of the Copyright Act and section 103 of Trade Marks Act are bailable or non bailable.

Section 63 of the Copyright Act reads thus:-

"63 - Offence of infringement of copyright or other rights conferred by this Act --- Any person who knowingly infringes or abets the infringement of-

(a) the copyright in a work, or

(b) any other right conferred by this Act, [except the right conferred by section 53A],

[shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees:

Provided that [where the infringement has not been made for gain on the course of trade or business] the court may, for adequate and special reasons to be menti