The mandatory requirement for the police officer to obtain the opinion of the Registrar before conducting search and seizure under Section 115(4) of the Trade Marks Act, and the lack of an efficacious alternative remedy for restoration of seized articles.

Assailing the order dated 03.04.2018 passed by learned single bench in W.P. No. 6644/2018, dismissing the writ petition on account of having an efficacious alternative remedy to the appellant, this appeal has been preferred.

2. The facts unfolded to file the present appeal are that appellant is the sole proprietorship concern manufacturing Putty, Dyes, Paint and Varnish etc. under the brand name “Maha Utsav”. As alleged the said brand name is neither registered under the Trade Marks Act, 1999 nor under the Copyrights Act, 1957. A complaint was lodged by one Mahesh Arjun Adaan of Torque Detective, that appellant is manufacturing the Putty similar to Birla White Wall Care Putty and selling the bags resembling the same. On the said complaint offence was registered at Crime No. 69/2018 under Section 103 and 104 of Trade Marks Act, 1999 (hereinafter it be referred to Trade Mark Act) and also a separate FIR has been registered under Section 51, 63 of Copyright Act, 1957 (hereinafter it be referred to Copy Right Act) at Crime No. 70/2018 at Police Station Girwai, District Gwalior. In this writ petition, the appellant sought direction against the respondents to open the lock and seal affixed on 16.03.2018 while search in the Pitambra Industry situated at Village Girwai, District Gwalior and permit the appellant to run the industry as per law.

3. Learned single bench referring the sub-section (5) of Section 115 of the Trade Marks Act observed that since the appellant is having efficacious alternative remedy for restoration of the seized articles, approaching before the Metropolitan Magistrate, therefore, interference was denied dismissing the writ petition.

4. Learned counsel appearing on behalf of appellant submits that as per Section 115 of the Trade Marks Act, after taking cognizance of the offence by the Deputy Superintendent of Police search and seizure of any industry can be made by the officer not below the rank of Deputy Superintendent of Police as per the opinion of the Registrar to the facts involved in the offence relating to Trade Marks Act and he shall abide the opinion so obtained. In the present case the respondents have not obtained any opinion from the Registrar defined under Section 2(v) and Section 3 of the Act. In absence of it, search, seizure, attachment and lock put to the industry by the respondents is not permissible under the law. It is further submitted that taking cognizance by the Deputy Superintendent of Police may be based upon the opinion of the Registrar, otherwise, the action taken by the respondent is illegal and without jurisdiction. It is urged, when the search and seizure itself is under challenge, the remedy provided for restoration of the article is not an efficacious alternative remedy, however, dismissal of the writ petition is not justified. In support of the said contention, reliance has been placed on the judgment of the Supreme Court in the case of Whirlpool Corporation vs Registrar of Trade Marks, Mumbai reported in 1998 (8) SCC 1.

5. On the last date i.e. 18.04.2018, on being asked by the Court, learned Govt. Advocate, sought time to seek instruction, whether any opinion was sought from the Registrar. Today, he has received the case diary and after going through the same and under the instructions, it is fairly stated that either in the case diary or in the return filed in the writ petition, opinion of the Registrar has not been attached or received, therefore, the question arises for consideration, whether without obtaining the prior opinion from the Registrar for an offence registered under Section 103 and 104 of the Trade Marks Act, search, seizure and attachment of the industry is permissible?

6. After hearing learned counsel on behalf of both the parties and to advert the arguments as advanced, first of all provisions of Section 115 of the Trade Marks Act is relevant to deal with the issue, which is reproduced as under:-

“115.Cognizance of certain offences and the powers of polic