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HIGH COURT OF CALCUTTA
DEBABRATA MOOKHERJEE
DASARATH SINGH - Appellant
Versus
STATE - Respondent
Criminal Appeal 370 Of 1955
Decided On : JANUARY 11, 1956
TRADEMARK - SECTION 486, PENAL CODE - POSSESSION OF COUNTERFEIT GOODS - ONUS OF PROOF - DISCHARGE OF ONUS BY ACCUSED - INTERPRETATION OF SECTION 486 - DISTINCTION FROM OTHER SECTIONS OF THE CODE - SPECIFIC ONUS ON ACCUSED TO PROVE CIRCUMSTANCES - FAILURE TO DISCHARGE ONUS - CONVICTION UPHELD.
Fact of the Case:
The appellant was convicted under Section 486 of the Penal Code for possessing counterfeit Sunlight Soap cakes for sale. He challenged the conviction on grounds of improper joinder of charges, lack of evidence to establish the elements of the offense, and failure to discharge the onus of proof.
Finding of the Court:
The court held that the trial court was correct in convicting the appellant under Section 486 of the Penal Code. The court found that the prosecution had discharged the general onus of proving the elements of the offense, and that the appellant had failed to discharge the specific onus placed on him by Section 486 to prove that he had taken precautions against committing the offense, had no reason to suspect the genuineness of the goods, and had given all possible information to the prosecutor.
Issues: 1. Whether the trial court erred in convicting the appellant under Section 486 of the Penal Code when a previous Magistrate had discharged him on the same charge. 2. Whether the trial court erred in trying the charges of cheating and possession of counterfeit goods together. 3. Whether the prosecution had discharged the onus of proving the elements of the offense under Section 486 of the Penal Code. 4. Whether the appellant had discharged the onus of proving the circumstances set out in Section 486 of the Penal Code.
Ratio Decidendi: 1. The court held that the order of discharge by the previous Magistrate did not affect the validity of the subsequent trial, as a fresh challan had been submitted upon collection of new materials. 2. The court held that the trial court did not err in trying the charges of cheating and possession of counterfeit goods together, as the offenses were parts of the same transaction and occurred within a short period of time. 3. The court held that the prosecution had discharged the general onus of proving the elements of the offense under Section 486 of the Penal Code by proving that the appellant was in possession of counterfeit goods for sale. 4. The court held that the appellant had failed to discharge the onus of proving the circumstances set out in Section 486 of the Penal Code, as he had not taken reasonable precautions against committing the offense, had reason to suspect the genuineness of the goods, and had not given all possible information to the prosecutor.
Final Decision: The court dismissed the appeal and upheld the conviction of the appellant under Section 486 of the Penal Code.
( 1 ) THE appellant was tried by a Presidency Magistrate of Calcutta upon two charges under Sections 420 and 486, Penal Code. He was acquitted of the charge of cheating under Section 420, but was convicted under Section 486 and sentenced to pay a fine of Rs. 250/-, in default, to suffer rigorous imprisonment for one month.
( 2 ) THE facts briefly stated are that on 6-7-1954 the appellant's shop at Raja Katra styled Sinha Bros. was searched in the presence of witnesses. Two cartons of Sunlight Soap marked Exts. II and III containing the cakes in waxed paper bearing label "sunlight Soap - Lever Bros. (India) Ltd. " were recovered. At the time of the search there was an Expert from Lever Bros. to help test whether the cakes were genuine or not. It appears the cakes were later sent for chemical examination and report was received in due course which revealed that they were not genuine Sunlight cakes it having been considered that they were inferior stuff and attempted to be passed oft as genuine Sunlight Soap of Lever Bros. Ltd.
( 3 ) THE appellant pleaded not guilty to the. charges and the defence was that there was no intention to cheat; furthermore on the evidence in the case the elements of an offence under Section 486 had not been established. No defence witnesses were examined.
( 4 ) THE learned Magistrate, however, believed the evidence produced by the prosecution and while acquitting the appellant of the charge of cheating convicted him of an offence under Section 486, Penal Code.
( 5 ) ON behalf of the appellant it has been contended in the first place that his conviction under Section 486 of the Code is not sustainable in law. Attention was drawn to an order made by a Presidency Magistrate, Calcutta on 7-2-1955 toy which that learned Magistrate discharged the appellant under Section 420, Penal Code, on account of absence of the complainant; and as respects the charge under Section 486, the learned Magistrate thought that although the police challan showed commission of an offence under Section 486, it did not appear at that stage that the aggrieved party, that is to say, Lever Bros. were interested in the prosecution. In this view of the matter he considered the challan under Section 486 to be a "nullity". Thereafter, it appears that a fresh challan was submitted to the Chief Presidency Magistrate on 13-5-1955 under Sections 420/486 of the Code and it was on this challan that the present trial was founded. It has been argued that since a Presidency Magistrate on a former occasion had discharged the appellant under Section 259, Criminal P. C. in respect of the charge of offence under Section 420, Penal Code, and since it was thought that the person really interested in the prosecution, namely, Lever Bros. Ltd. , had not taken "interest" in the prosecution and as such the charge of offence under Section 486 was a "nullity" the subsequent trial and conviction of the appellant are not maintainable. I cannot quite appreciate the force of this argument. Whatever the former Magistrate might have thought on an earlier occasion, there was nothing to prevent a fresh challan being submitted upon collection of new materials. It is quite clear from the order made by the Chief Presidency Magistrate on 13-5-1955 that the order of discharge previously made was present to his mind and yet the Chief Presidency Magistrate thought that there should be a trial of the appellant. Surely the order of discharge cannot possibly affect the validity of a new trial upon fresh materials; and as respects the expression of opinion by a former Magistrate that the prosecution under Section 486, Penal Code, was not maintainable and appeared to be a "nullity" all that need be said is that that opinion remains merely as an expression of the Magistrate's own view that a party interested was not actively prosecuting the case and cannot possibly have the effect of prejudicing a later trial held upon proper materials. There is, ther
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