Can Police Seal entire Factory under Section 115 Trademarks Act? NO says HC, Read Order

The Bombay High Court has observed that Police is not empowered under Section 115 Trademarks Act to seal a premises where incriminating articles were located.

The Division Bench of Justice Sharmila Deshmukh and Justice Arif Doctor in this view ordered de-sealing of a factory in Chakan near Pune.

"A perusal of the provisions of section 115 of the Trade Marks Act, 1999 reveals that there is no power vested in the police to seal the factory premises where the incriminating articles are situated. The provisions of sub-section (4) of section 115 of the Trade Marks Act, 1999 permits the police officer to seize without warrant the articles / items which are enumerated in the said sub-section. It is not disputed that there is no power vested with the police to seal the factory premises", the court said.

The petition was filed seeking urgent relief of de-sealing of the factory premises alleged to have been sealed pursuant to an FIR under Section-420 IPC, S..ections 103, 104 and 105 of the Trade Marks Act, 1999.

Counsel for the petitioner submitted that the provisions of section 115 of the Trade Marks Act, 1999 do not empower the police officer to seal the factory premises. He pointed out that the provisions of sub-section (4) of section 115 of the Trade Marks Act, 1999 and submitted that the police has the authority to seize without warrant the goods, die, block, machine, plate, other instruments or things involved in committing the offence. He submitted that under the provisions of section 115 of the Trade Marks Act, 1999 the sealing of the factory premises is not permissible.

Contrarily, Learned APP submitted that machinery being huge, it was not possible for the police officer to seize the same as envisaged under subsection (4) of section 115 of the Trade Marks Act, 1999 and, as such, to secure the machinery and to ensure that the same is not used in the commission of offence, the factory premises have been sealed. Learned counsel for Respondent No.2 would further submit that the petitioner has an alternate remedy before the Judicial Magistrate, First Class where the seized articles are required to be produced and all objections in that regard can be raised before the Magistrate.

The Court agreed with Counsel for petitioner's submission. Further as regarding the submission that there is an alternate remedy before the Judicial Magistrate, it noted that the provisions indicate that whenever there is seizure of the articles, the same are required to be produced before the Magistrate.

"However, in the present case there is no seizure of the articles and all that has been done is to seal the factory premises, which is not permissible as is evident from the perusal of provisions of section 115 of the Trade Marks Act, 1999", the court added.

The Court thus was of the opinion that the petitioner has made out a prima facie case for grant of ad-interim relief in terms of prayer clause.

Read Order @LatestLaws.com: