SANYO ELECTRIC COMPANY Vs. STATE

JUDGEMENT

(1.) The order under challenge of the Additional Chief Metropolitan Magistrate (hereinafter referred to as ACMM, for short) dated 12th March, 2010 directs that the warrant of search issued by the Court under Section 93 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code, for short) shall not be executed till the police officer obtains opinion and shall abide by the opinion of the Registrar of Trade Marks under the proviso to Section 115(4) of the Trade Marks Act, 1999 (hereinafter referred to as TM Act, for short). ACMM has held that compliance with the proviso to Section 115(4) is mandatory before any search warrant is executed .for offences under the TM Act.

(2.) The contention of the petitioner is that the proviso to Section 115(4) of the TM Act is not applicable to search warrants which are issued by the Courts under Section 93 of the Code. Section 115(4) of the TM Act authorizes a police officer to conduct searches without a warrant and the proviso to Section 115(4) of the TM Act applies only to the said sub-section and not a search warrant which is issued by a Court under Section 93 of the Code.

(3.) The relevant provisions of the two enactments; viz., Sections 93,102,165 and 166 of the Code and Section 115(3) and (4) of the TM Act read as under:-