The main legal point established in the judgment is that the search and seizure procedure under the Trade Marks Act must be carried out by a police officer not below the rank of Deputy Superintendent of Police or its equivalent, and non-compliance with this requirement renders the cognizance order bad in law.

JUDGMENT :

Heard Mr. Shailesh, learned counsel appearing for the petitioners and Mr. Ravi Prakash and Mrs. Priya Shrestha, learned Spl.P.Ps. for the State.

2. On several occasions, notices were issued upon the O.P. No. 2, but he chosen not to appear in the matter and finally by order dated 21.08.2019 step for substituted service of notice upon the O.P. No. 2 was taken by the learned counsel appearing for the petitioners. The notice was published in the local daily Newspaper “Punjab Keshri” where the O.P. No. 2 resides. After recording this fact the matter was adjourned on 14.10.2019 with a view to provide one opportunity to the O.P. No. 2. Again on 07.02.2022 nobody has responded on behalf of the O.P. No. 2 and with a view to provide one more opportunity to the O.P. No. 2, the matter was adjourned. Much indulgence has been given and in spite of that the O.P. No. 2 chosen not to appear in the matter. As such this petition is being disposed of in absence of O.P. No. 2.

3. In both the petitions, the similar complaint is under challenge that’s why both petitions have been heard together and being disposed of by this common order.

4. These petitions have been filed for quashing of the entire criminal proceedings initiated, vide C.O. Case No. 05 of 2014 including the order dated 12.02.2014, passed by the learned C.J.M., Dhanbad, wherein cognizance has been taken against the petitioners, under Sections 482 and 486 of the Indian Penal Code and Section 104 of the Trade Marks Act, 1999, pending in the Court of learned Judicial Magistrate, 1st Class, Dhanbad.

5. The complaint was filed stating therein that on 01.02.2014 an information about commission of cognizable offence was given to the officer-in-charge, Bankmore, Dhanbad by one Praveen Kumar, claiming to be a private enforcement officer engaged by Hundai Company to protect and take legal action as against spurious and duplicate articles spread out in the market in the name of Hundai company.

It has been further alleged that on 01.02.2014 the informant after coming to know that in certain shops of the local market duplicate accessories of Hundai Company is being sold. The informant after taking help of the local police raided following shops:-Saluja Car Accessories, B.S. & Sons, Kanhaiya Motor and Car Beauty. From the possession of the said shops, certain seat covers bearing name of Hundai Company was seized.

Accordingly, a seizure list was prepared and the informant sought legal action as against the named accused, shop keepers for their act of fraud and on that informant no FIR was lodged, but a station diary entry vide SDE No. 30/14 was entered. On 03.02.2014 a non-FIR vide Sadar Bankmore Case No. 01/2014 dated 03.02.2014 was entered and thereafter the Sub-Inspector, Bankmore Police Station lodged a complaint by Officer before the C.J.M., Dhanbad vide C.O. Case No. 05/2014 giving reference of S.D.E. no. 30/2014 dated 01.02.2014 seeking the learned C.J.M. to initiate prosecution under Sections 482 and 486 of the Indian Penal Code and Section 104 of the Trade Marks Act, 1999. The learned C.J.M., Dhanbad after receiving the Non-FIR prosecution report, took cognizance for the offences under Sections 482 and 486 of the Indian Penal Code and Section 104 of the Trade Marks Act, 1999 and accordingly, notices were issued to the accused persons.

6. Mr. Shailesh, learned counsel appearing for the petitioners submits that the cognizance for the offences under Sections 482 and 486 of the Indian Penal Code and Section 104 of the Trade Marks Act, 1999 have been taken against the petitioners are in violation of Section 115(4) of the Trade Marks Act, 1999. He submits that entire investigation was done by the Assistant Sub-Inspector (A.S.I) of police. He submits that in view of Section 115(4) of the Trade Marks Act, 1999, the police, not below the rank of Deputy Superintendent of Police or equivalent is entitled to investigate or to lodge the case.

7. Mr. Ravi Prakash and Mrs. Priya Shrestha, learned Spl.P.