ORDER :

1. The petitioner faced the trial on the charge under sections 406, 420, 467, 468, 469, 483 of the Indian Penal Code (in short, 'IPC') read with section 78 of the Trade and Merchandise Marks Act, 1958 as amended by the Act of 1999.

2. The charge against the petitioner was that he was found using a trademark deceptively containing fake vermilion and registration for re-packaging.

3. In the trial, the prosecution examined five witnesses to substantiate the aforesaid charges framed against the petitioner.

4. The defence put forth by the petitioner through DW1 was that he was manufacturer of vermilion and colour in the name of SKM Minerals which is registered with Registration No.034207754 vide Ext. A. The petitioner set up a plea that Mr. Krishna Prasad Gupta of Lakhisarai was owner of the incriminating articles and it was Krishna Prasad Gupta who vide letter dated 2nd January 2002 sent 2000 empty packets and labels for filling up of vermilion. The letter written by Krishna Prasad Gupta and his signature were laid in evidence vide Ext. B. The said person also filed an affidavit vide Ext. C to support the stand taken by the petitioner during the trial. Certain other documentary evidences were also produced by the petitioner to show by preponderance of probability that the accusations against him are not proved.

5. The learned Sub-Divisional Judicial Magistrate at Jamshedpur on consideration of the materials on record held as under:

“12. Heard the Ld. counsel for the defence he submitted the accused has been implicated falsely in this case. The admitted fact is that the accused was a registered manufacturer of colour and vermilliam. He has submitted his registration certificate which was enrolled in Registry Department. But he was only the supplied and one Mr. Krishna Prasad Gupta ordered him to supply the vermilliam. Krishna Prasad Gupta supplied him empty packets which was found by the police and there was no involvement of the accused. The I.O. never investigated on the matter that who was Krishna Prasad Gupta and he did not investigate on the point of Gopal Colour and Vermilliiam Factory Lakhisarai. The accused produced the letter of Krishna Prasad Gupta and document of affidavit of Krishna Prasad Gupta in which it has been stated that he was the owner of Gopal Colour and Vermilliam Factory Lakhisarai. The Ld. court of C.J.M. released the said empty packets in favour of Krishna Kumar Gupta as a genuine owner of this seized articles. If the empty packets belong to Krishna Prasad Gupta, the case comes as a defence of good faith. The accused believed on Krishna Prasad Gupta and became ready to supply him Vermilliam in packets which was supplied to the accused by Krishna Prasad Gupta. The informant has stated that the accused was never found selling or supply the articles containing Trade Mark of the informant in any market. No stockist or retailer or consumer complaint about the business done by the accused. He further stated that the accused has been charged for the offence punishable U/ss. 468, 469, 483, 406, 420, 467 of I.P.C. r/w Sec. 78 of Trade & Merchandise Marks Act 1958. The settle principle of law is that where Special Act is applicable provisions of I.P.C. should not be applied.”

6. The convict who is the petitioner before this Court filed Criminal Appeal No.14 of 2012 which was dismissed holding as under:

“19. On the basis of the above discussions of the evidences and the relevant provisions of the Trade and Merchandise Marks Act, 1958, I am of the view that the accused has certainly applied a deceptively similar mark to the packets containing fake vermilion of the accused/appellant herein. The accused has admittedly no registration for repacking. Further that the ld. Court below has rightly observed that the said Krishna Prasad Gupta has never come forward before the court and as such the veracity or otherwise of Ext. A, i.e. the letter dated 02.01.2002 could not be ascertained. As such, I find and hold that