STATE Vs. BHANWAR LAL BANSAL

JUDGEMENT

(1.) THE prosecution story in brief is that a first-information report was lodged by Rameshwar Reddy, P. W. 6, with the police station. Bhilwara on December 31, 1963, stating therein that accused Bhanwar Lal had sold spurious 'biris' with counterfeit 'zhillis' (wrappers) and labels of bull-dog of M/s. Pyar Chand Keshri Mai Porwal of Kamptee by misrepresenting them to be genuine. The bulldog label was a registered trade mark of the above firm, bearing registration No. 131148 and 'zhillis' (tissue papers) with bull-dog and Keshri figure of a particular design, wherein registered trade mark bearing No. 160381 was also inserted. The firm enjoyed good reputation for its 'biris' in the area. The accused, in order to take advantage of the good will of the firm, manufactured and sold spurious goods with counterfeit trademark by copying the said mark of the firm and thus committed commercial piracy and cheated the general public by selling spurious goods under counterfeit labels and 'zhillis'. On receipt of the above report the police registered a case and took over investigation. In the course of investigation accused Bhanwar Lai's shop was searched on December 31. 1963. 210 packets of 'birds' with counterfeit labels and 'zhillis' were recovered. The same day accused Bhanwar Lai's house was also serahed. Its key was supplied by the accused. In the course of search a large quantity of labels and 'zhilis' were recovered. 11 Kgs. of finished and unfinished bundles with or without counterfeit 'zhillis" or labels. 13 Kgs of counterfeit 'zhillis' (full-size tissue papers), 1 Kg. and 400 grams, of cut pieces of counterfeit 'zhillis' and 3 Kgs. and 150 grms. of counterfeit bull-dog labels were recovered from the house of the accused. All these goods were duly sealed. Thereafter samples were taken out of them in the presence of Mr. M. K. Sikhdar, Magistrate Under training Bhilwara P. W. 9. Thereafter the goods were reseated 'zhillis' were sent to P. W. 7 Khurshed Sorabji and label to P. W. 8 Desh Raj Graver. On receipt of the reports from the above 2 experts and after necessary investigation, the police put up a challan against accused Bhanwar Lai in the court of Munsiff-Magistrate, Bhilwara, under Section 420. IPC and Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958. Learned Munsiff-Magistrate examined 15 witnesses. He also examined the accused under Sec. tually the trial court, by Its judgment, dated September 1. 1970, acquitted accused Bhanwar Lal.

(2.) DISSATISFIED by the above verdict, the present appeal has been taken by the State Government,

(3.) THE contention of learned Counsel for the appellant is that the trial court went wrong in holding that the goods recovered from the shop and the house of Bhanwar Lai were not duly sealed and that in the recovery memo pertaining to the house of Bhanwar Lai (Ex. P. 11) the words "have been duly sealed" have been inadvertently omitted. All the witnesses have deposed in. their oral testimony before the trial court that the goods were duly seized and sealed. The witnesses have also identified the goods before the trial court. learned Counsel then submitted that the Magistrate Under training, Mr. M, K. Sikhdar, has deposed that all the goods produced before him for the purpose of taking out samples therefrom were found by him duly sealed and bearing chits with the signatures of the 'motbirs'. learned Counsel then drew the attention of the court to the statement of Ghanshyam Lai, P. W. 14, who has stated that he took the goods in a sealed condition to the experts. The two experts Khurshed Sorabji, P. W. 7 and Desh Raj Grover. P. W. 8 have deposed that they received the samples in a sealed condition. There may be discrepancy in the statement of P. W 8 Desh Raj Grover, who has stated that 'the sample packet of the labels, which he had received, contained the seal of the Superintendent of Police, Bhilwara. But such a discrepancy, according to learned Counsel, is due to lapse of memory. learned Counsel then submitted that all the goods have been produced before the court and in a matter like this it is for the court to examine the goods and reach the conclusion whether or not the article are spurious. In so far as the articles recovered from the shop of the accused are concerned, it is mentioned in the search memo Ex. P. 9 that they were duly sealed. Balwant Singh. Additional Superintendent of Police, Bhilwara, P. W. 15, Rameshwar Reddy P. W 6 Ghanshyam Lai p, W. 9. and Nizamuddin P. W. 13 have stated that the goods were duly sealed and Ghanshyam Lai has said that he took the sealed articles to the experts. learned Counsel then urged that when the articles were duly sealed, a presumption should be raised in favour of the prosecution that they reached the experts in a sealed condition and that the seals were not tampered with earlier. learned Counsel then urged that the counterfeiting process went on on a massive scale and that lapse of time should not stand in the way of conviction of the ac- cused. According to him the offence committed by the accused is a commercial piracy and. therefore, he does not deserve any leniency. In the end. counsel said that the accused should be convicted and adequately sentenced for offences under Section 420. I. P. C, read with Sections 78 and 79 of the Trade and Merchandise Marks Act. 1958. Mr. Than Chand Mehta appearing on behalf of the accused-respondent supported the judgment of the court below.