The central legal point established in the judgment is the requirement for compliance with the proviso to sub-section (4) of Section 115 of the Trade Marks Act, 1999 for search and seizure, and the absence of incriminating material against the accused.

JUDGMENT

Heard Mr. J. Bhattacharji, learned counsel appearing for the petitioner as well as Mr. A. Ghosh, learned Public Prosecutor appearing for the state.

2. This petition filed under Section 482 of the Cr.P.C. is directed against the legality of the order dated 01.07.2010 passed by the Judicial Magistrate 1st Class, Agartala, West Tripura in G.R. No. 912/2009. By the said order, the charge had been proposed to be framed against the petitioner under Section 79 of the Trade and Merchandise Marks Act, 1958. The petitioner had approached the court of the Sessions Judge by filing a criminal revision application under Section 397 of the Cr.P.C., but the learned Sessions Judge, West Tripura, Agartala, has rejected the said revisional petition, being Criminal Revision No. 24(3)/2010 by the judgment and order dated 20.12.2010.

3. In the said judgment and order dated 20.12.2010, the Sessions Judge has observed that if there are some evidence on the basis of which the Magistrate has decided to frame the charge, the revisional court should not interfere the same. The said judgment and order is also under challenge in this appeal.

4. Mr. Bhattacharji, learned counsel appearing for the petitioner has submitted further that the Trade and Merchandise Marks Act, 1958 has been repealed and, as such, there cannot be any charge under Section79 of the said Act. Apart that, he has submitted that there is no material based on which the charge can be framed.

5. Mr. A. Ghosh, learned Public Prosecutor appearing for the state has submitted that even though the Trade and Merchandise Marks Act, 1958 has been repealed and substituted by the Trade Marks Act, 1999. The provisions of Section 79 of the Trade and Merchandise Marks Act, 1958 is pari materia to Section 104of the Trade Marks Act, 1999. Therefore, on that ground alone the impugned orders cannot be interfered with. However, Mr. Ghosh, learned Public Prosecutor has fairly submitted that except a report by the complainant there is no proof to show that the materials so seized were fake and those were being sold by using the false trade mark or false trade description of the complainant, M/s. Finolex Electricals Ltd.

6. For appreciating the submissions of the learned counsel for the parties, this court has scrutinised the records. It appears that the entire case is based on the search and seizure. Neither from the police report nor from the materials which have formed the part of the final report it is available that the proviso to sub-section (4) of Section 115 of the Trade Marks Act, 1999 has been complied with by the police officer while making the search and seizure. The said proviso stipulates as under:

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.

7. In this case no such opinion of the Registrar of Trade Marks is available before causing the search and seizure. As such, the search and seizure are ex facie illegal and no legal action can be taken against the petitioner. Apart that, this court does not find any other material incriminating the petitioner in the offence. Hence, both the impugned judgment and order are set aside. As consequence thereof, the petitioner is discharged from the criminal liability.

8. In the result, this petition stands allowed.