Venus Industries And Anr. vs State And Ors.
2001 Latest Caselaw 1978 Del

ORDER

R.S. Sodhi, J.

1. This petition is directed against the order dated 4.12.2001 of the Metropolitan Magistrate, whereby the learned Magistrate has directed the Deputy Commissioner of Police, Delhi to search and seize the incriminating goods, infringing material, packing tools, dyes, documents, account books, blocks, plates, machinery etc. being used for making the infringing goods or the deceptively similar goods in finished and unfinished respect of the goods/products manufactured by the complainant as mentioned in Annexures 'A' and 'B' of the complaint.

2. It is argued by the learned Counsel for the petitoner that in the fist place the Magistrate has no power to issue such a warrant in a complaint made under Designs Act since the Act gives remedy which is a civil remedy under Section 22 thereof. He further submits that under the Copy Right Act, Section 15 specifically de-recognises any design registered under Designs Act, 1911. He, therefore, submits that without first appreciating whether the Magistrate had jurisdiction to issue which a warrant, the Magistrate ought not to have issued the search warrant and if the same could be issued then it could not be of a nature and magnitude as to totally bring about closure of rival business of the petitioner.

3. Learned Counsel for the complainant submits that the Court has jurisdiction inasmuch as designs registered under Designs Act, 1911 are protected/saved by Section 48 of the Designs Act, 2000 as they are deemed to have been acts done under the corresponding provisions of the new Act and, therefore, Court had jurisdiction to go into the matter.

4. Be that as it may, having heard learned Counsel for the parties, I am of the considered view that the search warrant of the nature issued is contrary to the judgment of the High Court in Sh. Churiaram Aggarwal and Anr. v. Aggarwal Sweet Corner and Anr., 1990 PTC 175, where this Court has cautioned the Courts below not to issue an open-ended warrant of the nature that would destroy the rival business. For convenience, word used in the judgment are:

" I do not think that anything said in this judgment can be taken advantage of by the complainant in the present case. It was not a case of any clandestine trade being carried out by the petitioner that a search warrant was required to be issued. The petitioner is selling his wares openly and in case the petitioner is infringing any trade mark of the complainant, the complainant can collected the necessary evidence without obtaining any search warrants. As already held in the aforesaid judgment that issuance of a search warrant is a very serious matter and should not be dealt with in a light manner in order to give advantage to a particular complainant for harassing the rival in trade."

5. It appears to me that there is no item manufactured by the petitioner which is not freely available in the market and which could not have been procurred by the complainant. Since the petitioner herein is selling his wares openly and the complainant could have collected the necessary evidence without obtaining a search warrant, therefore, while leaving the question of jurisdiction open to be decided by the Court upon notice to the petitioner herein, search warrant dated 4.12.2001 is quashed. All t he machinery sealed be desealed forthwith and the articles seized be returned to the petitioner.

Crl. M (M) 4537/2001 is disposed of accordingly.

dusty

6. Petition disposed of.