Search and seizure under the Trademarks Act requires compliance with mandatory procedures, failing which actions taken are deemed illegal.

ORDER :

ASHUTOSH KUMAR, J.

- Satpal Vs. State of Punjab , reported in 2011 1 PLR 472

- Kasim Ali And Another Vs. State of M.P. And Another , reported in 2016 2 JLJ 415

- Shantanu Bhowmik Vs. State of Tripura , reported in 2014 0 Supreme (Tri) 159 &

- Shrenik Shantilal Dhadiwal Vs. The State of Maharashtra & Ors., reported in [2018] 0 Supreme (Bom) 1445

"115. Cognizance of certain offences and the powers of police officer for search and seizure.—

(1) No court shall take cognizance of an offence under section 107 or section 108 or section 109 except on complaint in writing made by the Registrar or any officer authorised by him in writing:

Provided that in relation to clause (c) of sub-section (1) of section 107, a court shall take cognizance of an offence on the basis of a certificate issued by the Registrar to the effect that a registered trade mark has been represented as registered in respect of any goods or services in respect of which it is not in fact registered.

(2) No court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of the first class shall try an offence under this Act.

(3) The offences under section 103 or section 104 or section 105 shall be cognizable.

(4) Any police officer not below the rank of deputy superintendent of police or equivalent, may, if he is satisfied that any of the offences referred to in sub-section (3) has been, is being, or is likely to be, committed, search and seize without warrant the goods, die, block, machine, plate, other instruments or things involved in committing the offence, wherever found, and all the articles so seized shall, as soon as practicable, be produced before a Judicial Magistrate of the first class or Metropolitan Magistrate, as the case may be:

Provided that the police officer, before making any search and seizure, shall obtain the opinion of the Registrar on facts involved in the offence relating to trade mark and shall abide by the opinion so obtained.

(5) Any person having an interest in any article seized under sub-section (4), may, within fifteen days of such seizure, make an application to the Judicial Magistrate of the First Class or Metropolitan Magistrate, as the case may be, for such article being restored to him and the Magistrate, after hearing the applicant and the prosecution, shall make such order on the application as he may deem fit."

"7. As per sub-clause (4) of Section 115 of the Trademarks Act, 1999, no police officer below the rank of Deputy Superintendent of Police can search and seize for goods regarding offence under Sections 103, 104 and 105. Secondly, as per the proviso, the said police officer will have to obtain opinion of the Registrar on facts involved in the offence relating to Trademarks Act, 1999 and shall abide by the opinion before such search and seizure is carried out, whereas, in the present case, admittedly the search and seizure had been done by the Sub Inspector without taking any opinion from the Registrar. The proceedings are, therefore, vitiated. The word "shall" in the proviso is indication of the fact that the provision is indeed mandatory. Moreover, the said offences could have only been investigated by the Officer not below the rank of Deputy Superintendent of Police."

10- blh izdkj vU; U;kf;d n`"Vkar Kasim Ali (supra) ds ekeys esa Hkh fuEu fyf[kr er O;Dr fd;k x;k gS %&

"16. In the present case, no such opinion has been obtained from the Registrar and search and seizure has been conducted by the Sub-Inspector. Thus, the mandatory provisions of the Act, 1999 have not been complied with. When statutes, which create an offence provide for a procedure the Court or the authorities cannot ignore the same. In the present case, the procedure provided under section 115 of the Act, 1999 has not been complied with, therefore, the Court is not competent to take cognizance of the offence under section 103 of the Act, 1999."

11- blh izdkj vU; U;kf;d n`"Vkar Shantanu Bhowmik (supra) ds ekeys esa Hkh fuEu fyf[kr er O;Dr fd;k x;k gS